NDLI: Sirajudheen Vs. Zeenath & Ors

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Code of Civil Procedure 24 33 – Remand for trial de novo by the High Court 1908 – Order XLI Rule 23 23A
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Code of Civil Procedure, 1908 (5 of 1908)
Case(s) Referred	Referred Case 0
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	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 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.
Judge	Hon'ble Mr. Justice Dinesh Maheshwari
Neutral Citation	2023 INSC 173
Petitioner	Sirajudheen
Respondent	Zeenath & Ors
SCR	[2023] 5 S.C.R. 1
Judgement Date	2023-02-27
Case Number	1491

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