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Supreme Court said that according to Order XLI Rule 23A a suit cannot be remanded, for de novo by the Trial Court, only because certain evidence were not produced

Kavya Sharma ,
  13 March 2023       Share Bookmark

Court :
Brief :

Citation :




FEBRUARY 27, 2023





Respondent: ZEENATH & ORS.


The Hon’ble Supreme Court (hereinafter referred to as ‘Supreme Court’ or ‘the Court’), has set aside the impugned order of the High Court and held that the remanding order should not have been awarded without taking into consideration of the explanation of the plaintiff. 


Civil Procedure Code

  • Order XLI Rule 23 – states the power of the Appellant Court to remand the suit to the lower court. 
  • Order XLI Rule 23A – states the remanding of order in other cases. 
  • Order XLI Rule 24 – states that the appellant court may give the final verdict if there are satisfactory evidences on the record. 
  • Order XLI Rule 27 – states the representation of further evidence in Appellant court. 
  • Order XLI Rule 33 – states the power of the Appellant Court. 


  • A partition deed and the partnership deed were executed by the respondents where the property was under joint possession along with full enjoyment rights. 
  • The petitioner was forced by the respondents to execute the security bond, where she later understood that her shares in the property has been sold off and that she executed a sale deed and not any security bond.
  • A civil suit was filed for setting aside the sale deed that was registered in the Sub Registrar office, Karunagapally. Suit regarding the prohibitory injunction was also filed and both the suits were dismissed accordingly. 
  • The respondents tried to divide the movie theatre and the retail centre on the suit land into two other lawsuits. These two lawsuits were decided in the respondent's favour.
  • An appeal was filed to the High Court regarding dissolution of sale deed and the prohibitive injunction order of Trial Court along with the other two judgments of the Trial Court. The High Court believed there was insufficient evidence on file for the Trial Court to draw a conclusion, and it was proper to offer the chance to present new evidence for review.
  • The said appeal was dismissed on the grounds that produced evidences were insufficient for adequate determination of the suit.
  • Now the present appeal has been filed against the High Court order dated 28th June 2019 


  • Whether the High Court has been justified in giving the remanding order?
  • Whether mere finding are sufficient in taking as evidence for delivering the judgment under Order XLI Rule 24 CPC?
  • Whether the characteristics of the partnership agreement will be followed after the partition?


  • It has been argued that the plaintiff-respondent had failed to establish her case due to a lack of provision of adequate proof, but this mistake on her side cannot be used as justification to reopen the case in the Trial court.
  • Since no grounds were claimed or relief claimed to that effect, the High Court should not have remanded the case for a new hearing while ordering the parties to present new evidence.
  • It was noted that she wasn't actually cross-examined, nor was the plaintiff's husband, who had testified as an attesting witness to the previous arrangement for sale, on her behalf as the Prime witness, and even the Sub Registrar who had recorded the sale deed was not examined.
  • In accordance with Section 114 of the Evidence Act, the plaintiff-respondent No. 1 should have been held accountable for failing to appear in the witness box, especially when accusations of deception were being made. 
  • The Trial Court took a fair position on the situation while concluding that the conditions were favouring the defendant-appellant's case even though none of the components of proviso (1) to Section 92 of the Evidence Act had been proven.
  • Therefore, it is prayed that since the lawsuit was correctly rejected, there was no need to remand the case for a new hearing.


  • The council pointed out that after outlining a few factors that favour the plaintiff, respondent and a few more that support the validity of the sale in question, the High Court noted that the proof required to properly deciding the case had not been submitted to the record. 
  • Additionally, it was noted that there was insufficient evidence on file to make a correct determination in favour of or against the disputed sale deed.
  • It is to be noted that no proof regarding the passing of consideration has been presented and no material witnesses have undergone examination.
  • The appellant's counsel questioned the high court's decision and claimed that it was unable to draw any conclusions from the evidence presented. However, the truth of the issue is that the Trial Court had in fact determined, based on the exact same evidence on record that the plaintiff was unable to prove her case and, as a result, the lawsuit is entitled to be dismissed.


  • The court noted that the merely on the base of the evidence on record the Trial Court did return its findings. 
  • It is observed that if any direct evidence which has not been produced and that was already in the possession of the party then section 114 of Evidence act will be applicable. Therefore remanding of the suit for the de novo of the said trial is not justified.
  • The court has said that when any evidence directly related to the subject matter has been kept in hidden and purposefully has not been produced to eliminate the justice then then the appellant court cannot just remand the matter on not filing the basic evidence. 
  • The court said that the plaintiff should have been treated as the vital witness by the High Court and should have recorded the findings on the subject of plaintiff’s examination, producing additional evidence and the recorded reasons of the passed decree. 
  • Therefore the judgment dated 28th June 2019 has been set aside and the order of reconsideration of the appeal has been sent to High Court.  


In the above case High court observation in the suit was regarding the character of the said property when the partnership agreement was constructed. There were other observations made by the Court on Trial court’s decision on non-registration of the partnership and accordingly Section 69(1) of the Indian Partnership Act was enforced where the suit was set aside and the matter was remanded back to the trial court for the discharge de novo.

It is explained that if sections allowing the Appellate Court to issue a remand order are referred, it will be challenging for the High Court to justify remanding the case in this instance.

The suit in issue had not been decided on a preliminary point, so the reach of remand under Rule 23 of Order XLI CPC is very constrained and that rule is irrelevant. 

The remand in this case could only be associated with Rule 23-A of Order XLI CPC, and in order for it to be applicable; "the decree has been overturned in appeal and a new trial is considered essential" are the prerequisites.

The impugned decision offers absolutely no justification for why and on what grounds the High Court reversed the decree. The change must, of course, be supported by compelling arguments, and it is still necessary to refer to and address the arguments that the Trial Court had used to support its decision. Therefore, even under the terms of Rule 23-A of Order XLI CPC, remand in the current instance cannot be deemed justified.

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