Paragraph numbers below are the court’s original numbering, recovered from the source text.
10. It could at once be noticed that in terms of Rule 33 of Order XLI CPC, the Appellate Court is empowered to pass any decree and to make any order which ought to have been passed or made; and which may be considered requisite in a case. While the said Rule 33 prescribes general powers of the Court of appeal, the specific powers of remand are prescribed in Rules 23 and 23-A of Order XLI CPC. Hence,for the purpose of the case at hand, reference to aforesaid Rule 33 remains inapposite. Having said so, we may proceed to examine if the order of remand in the present case could be justified with reference to the other referred provisions of Order XLI CPC?
11. One of the striking features of the impugned judgment dated 28.06.2019 is that even while dealing with a regular first appeal against the judgment and decree of the Trial Court, the High Court has not even adverted to the findings of the Trial Court pertaining to the present case and has not specified as to how the findings recorded by the Trial Court were unsustainable or unjustified. As noticed, in the impugned judgment, the High Court has narrated a few circumstances leaning in favour of the plaintiff (in paragraph 21) and then a few other circumstances which favour the genuineness of the sale in question (in paragraph 22) and thereafter, has observed that the evidence necessary for a proper determination of the suit had not been brought on record; and that the evidence on record was insufficient to arrive at a proper finding in favour or against the sale deed in question. The High Court would further observe that material witnesses have not been examined and no evidence has been brought in with regard to passing of consideration. 11.1. With respect, what turns on the observations in the impugned judgment is that the High Court was unable to arrive at a conclusion on the basis of the material on record. However, fact of the matter remains that on the basis of the same material on record, the Trial Court had indeed arrived at a definite conclusion that the plaintiff had failed to establish her case and hence, the suit was liable to be dismissed. As indicated hereinabove, the High Court has not at all referred to the findings of the Trial Court and it is difficult to find from the judgment impugned as to why at all those findings of the Trial Court were not to be sustained or the decree was required to be reversed. 11.2. After having taken note of the salient features of the impugned judgment as also the significant omissions therein, if we refer to the provisions empowering the Appellate Court to make an order of remand, it is difficult to find any justification for remand by the High Court in the present case. As noticed, the scope of remand in terms of Rule 23 of Order XLI CPC is extremely limited and that provision is inapplicable because the suit in question had not been disposed of on a SIRAJUDHEEN v. ZEENATH & ORS. [DINESH MAHESHWARI, J.] preliminary point. The remand in the present case could only be correlated with Rule 23-A of Order XLI CPC and for its applicability, the necessary requirements are that “the decree is reversed in appeal and a re-trial is considered necessary”. As noticed hereinabove, there is no reason whatsoever available in the impugned judgment as to why and on what basis the decree was reversed by the High Court. Obviously, the reversal has to be based on cogent reasons and for that matter, adverting to and dealing with the reasons that had prevailed with the Trial Court remains a sine qua non. Thus, remand in the present case cannot be held justified even in terms of Rule 23-A of Order XLI CPC.
12. On the facts of the present case and the nature of order passed by the High Court, the enunciations and observations in the case of Sanjay Kumar Singh (supra) are of no application whatsoever as none of the parties have sought any permission to adduce evidence nor the High Court has specified as to what specific evidence was considered necessary to enable it to pronounce judgment or for any substantial cause. Moreover, it does not appear from the judgment of the High Court if the plaintiff-respondent No. 1 (appellant before the High Court), ever projected that the Trial Court did not allow her to produce any evidence that was sought to be produced. It is also not borne out if any of the parties at all made out any case for production of additional documents or oral evidence with reference to the applicable principles. Hence, the general observations of the High Court cannot be correlated with Rule 27(1) either. With respect, we are constrained to apply the observations of this Court in Municipal Corporation, Hyderabad (supra) to say that the present order of remand has been passed only on ipse dixit of High Court sans any reason or justification.
13. It gets perforce reiterated that in the suit filed by respondent No. 1, the Trial Court had indeed returned its findings on the basis of evidence on record. Whether those findings are sustainable or not is a matter entirely different and the High Court may examine the same but merely because the High Court could not reach to a conclusion on preponderance of probabilities, the evidence on record could not have been treated as insufficient so as to not pronounce the judgment in terms of Rule 24 of Order XLI CPC.
14. In regard to the want of any particular evidence, we may observe in the passing that if the Court finds any particular evidence directly within the control and possession of a party having not been produced, the necessary consequences like those specified in illustration (g) to Section 114 of the Evidence Act3 may follow but, merely because a particular evidence which ought to have been adduced but had not been adduced, the Appellate Court cannot adopt the soft course of remanding the matter. We would hasten to observe that we are not commenting on the merits of the case either way. The observations herein are only to indicate that the remand of the suit for trial de novo cannot be considered justified in the present case from any standpoint.
15. For what has been discussed hereinabove, suffice it would be to sum upthat for a few tentative observations about certain circumstances existing in favour of the plaintiff and certain other circumstances existing in favour of the defendants and then,with another observation that plaintiff was a vital witness, the High Court was not justified in remanding the matter for trial de novo without recording any finding if the plaintiff was prevented from examining herself or from adducing any other evidence as also without explaining as to on what ground the decree was being reversed.
16. Accordingly, and in view of the above, this appeal succeeds and is allowed. The impugned judgment and order dated 28.06.2019, insofar as relating to RFA No. 247 of 2014 (pertaining to OS No. 293 of 2012), is set aside; and the said appeal is restored for reconsideration by the High Court in accordance with law. The parties through their respective counsel shall stand at notice to appear before the High Court on 20.03.2023.
17. Having regard to the circumstances, there shall be no order as to costs of the present appeal. Ankit Gyan Appeal allowed. (Assisted by : Mayank Batra, LCRA) 3 Illustration (g) to Section 114 of the Evidence Act reads under:- “The Court may presume – (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; ***” SIRAJUDHEEN v. ZEENATH & ORS. [DINESH MAHESHWARI, J.]