SIRAJUDHEEN versus ZEENATH & ORS

Citation: [2023] 5 S.C.R. 1 · Decided: 27-02-2023 · Supreme Court of India · Bench: DINESH MAHESHWARI · Disposal: Appeal(s) allowed

Cited by 7 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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[2023] 5 S.C.R. 1
1
SIRAJUDHEEN
v.
ZEENATH & ORS.
(Civil Appeal No. 1491 of 2023)
FEBRUARY 27, 2023
[DINESH MAHESHWARI AND SUDHANSHU DHULIA, JJ.]
Code of Civil Procedure, 1908 – Order XLI Rule 23, 23A, 24,
33 – Remand for trial de novo by the High Court – Justified or not
– The two civil suits filed by the plaintiff-respondent No. 1 for
cancellation of sale deed and for prohibitory injunction were
dismissed, the two other civil suits filed by her sisters seeking
partition of respective properties were decreed – These four
decisions were challenged by the respondent No.1 in the High Court
by way of four appeals – The instant appeal is directed against the
common judgment and order passed by the High Court, whereby
the appeal filed by the plaintiff-respondent no.1 against dismissal
of her suit for cancellation of a sale deed and for a prohibitory
injunction was disposed of with directions to the Trial Court to decide
the suit afresh after de novo trial, essentially with the observation
that the evidence necessary for proper determination of suit had
not been brought on record - Whether the High Court was justified
in remanding the matter for trial de novo – On appeal, held: The
High Court has not 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 – 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 preliminary point
– The remand in the present case cannot be held justified in terms
of Rule 23-A of Order XLI CPC because 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 – The Court
has not specified as to what specific evidence was considered
necessary to enable it to pronounce judgment or for any substantial
cause – 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
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SUPREME COURT REPORTS
[2023] 5 S.C.R.
pronounce the judgment in terms of Rule 24 of Order XLI CPC –
Further, 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 – The remand of the
suit for trial de novo cannot be considered justified in the present
case from any standpoint.
Allowing the appeal, the Court
Held: 1. Real question calling for determination in this
appeal is as to whether the High Court has been justified in
remanding the matter for trial de novo? [Para 8.1][13-D]
2. 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. [Para
10][16-H; 17-A]
3. 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.
[Para 11.1][17-E-F]
4. 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
preliminary point. The remand in the present case could only be
correlated with Rule 23-A of Order XLI CPC and for its
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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 what

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