Summary
A co-owner of a cinema theatre in Kollam sued to cancel a 2006 sale deed of her one-fifth share, alleging she signed it believing it to be a security bond; the trial court dismissed the suit, noting she had neither testified nor examined the Sub-Registrar. The Kerala High Court, without adverting to the trial court's findings, found the evidence insufficient and remanded the suit for de novo trial. The Supreme Court set aside the remand: Order XLI Rule 23 CPC applies only where a suit is decided on a preliminary point, Rule 23A requires the decree to be reversed for reasons and a retrial found necessary, Rule 27 was never invoked, and an appellate court cannot take the soft course of remand because a party failed to adduce evidence it ought to have, adverse inference under Section 114(g) of the Evidence Act being the consequence instead.
Issues
- Whether a first appellate court may set aside a decree and remand a suit for de novo trial under Order XLI CPC on the ground that the evidence on record is insufficient, without dealing with the trial court's findings or any party seeking to adduce additional evidence.
Provisions considered
- Order XLI Rules 23, 23A, 24, 27 and 33, Code of Civil Procedure, 1908Rule 23 is confined to suits disposed of on a preliminary point; Rule 23A permits remand only where the decree is reversed for cogent reasons and retrial is considered necessary; Rule 24 requires the appellate court to decide where the record suffices; Rule 27 governs additional evidence on specified conditions; and the general power under Rule 33 is inapposite to remand. Following Municipal Corporation, Hyderabad, a remand on the court's ipse dixit is impermissible. (¶¶ 9.1, 9.2, 10, 11.2, 12, 13)
- Section 114, illustration (g), and Section 103, Indian Evidence Act, 1872Where evidence within a party's control is withheld the court may presume it would have been unfavourable; a plaintiff alleging fraud who does not testify or examine the Sub-Registrar bears the consequences under the burden of proof, and the appellate court cannot cure that failure by remand. (¶¶ 3.5, 6, 14)
Held
- The High Court did not refer to the trial court's findings or explain why they were unsustainable, and merely recorded tentative observations about circumstances favouring each side before declaring the evidence insufficient; on the same record the trial court had reached a definite conclusion, and inability of the appellate court to decide on preponderance of probabilities does not render the evidence insufficient under Rule 24. (¶¶ 11, 11.1, 11.2, 13, 15)
- Sanjay Kumar Singh on additional evidence has no application since no party sought to adduce evidence, the High Court specified no evidence needed to pronounce judgment, and the plaintiff never claimed she was prevented from producing any; the remand was without reason or justification, though no opinion is expressed on the merits. (¶¶ 12, 14, 15)
Result
Appeal allowed without costs; Kerala High Court judgment dated 28.06.2019 insofar as it allowed RFA No. 247 of 2014 and remanded OS No. 293 of 2012 for de novo trial set aside; the appeal restored to the High Court for reconsideration in accordance with law, parties to appear on 20.03.2023.