TaxTMI 
TaxTMI 
2023 (2) TMI 1470
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....ion of the suit had not been brought on record. 3. In the impugned common judgment and order dated 28.06.2019, the High Court has decided four appeals arising out of four different civil suits but concerning the same contesting parties and involving inter-related issues. Though, the present appeal relates only to one of those appeals in the High Court, being RFA No. 247 of 2014 that arose from OS No. 293 of 2012 in the Court of Subordinate Judge, Karunagapally (originally OS No. 390 of 2006 in the Court of Subordinate Judge, Kollam) but, for a proper comprehension of the facts, a brief reference to the subject-matter of the said four civil suits and findings therein shall be apposite. The relevant factual and background aspects could thus be noticed, in brief, as follows: 3.1. The respondent No. 1 filed the subject civil suit (OS No. 293 of 2012) against the present appellant as defendant No. 1 and other respondents, her sisters, as defendant Nos. 2 to 5, for setting aside a sale deed bearing No. 285 of 2006 dated 15.03.2006, registered in the Office of Sub Registrar, Karunagapally. 3.2. The suit schedule property, consisting of 54 Ares and 90 Sq. meters of land and the ci....
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.... suit bearing OS No. 293 of 2012, the plaintiff-respondent No. 1 filed another civil suit for prohibitory injunction, which was registered as OS No. 238 of 2012. Both these civil suits, being OS No. 293 of 2012 and OS No. 238 of 2012 were decided together by the Trial Court in its common judgment dated 28.01.2014. After examining the evidence on record, the Trial Court rejected the case of the plaintiff- respondent No. 1 with the findings, inter alia, that the circumstances placed on record did not probabilise the case that by defrauding her, the husbands of her sisters got executed the sale document (Ex. A-1) while making her believe that it were a security document for getting new films. The Trial Court also found that no steps were taken by the plaintiff-respondent No. 1 to examine the Sub Registrar who had registered the sale deed whereupon she had put her signatures on being allegedly made to believe it to be a security document; and she failed to discharge the burden of proof in terms of Section 103 of the Indian Evidence Act, 1872 ['Hereinafter referred to as 'the Evidence Act']. Without much elaboration, we may take note of the relevant findings of the Trial Court a....
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....19. 4. As noticed, the present appeal relates only to RFA No. 247 of 2014 (pertaining to OS No. 293 of 2012). Therefore, dilation on all the factual aspects of the four civil suits and respective findings of the High Court may not be of direct relevance for the present purpose but, for the fact that they relate to cognate matters and the appeals have been decided by the common judgment, for a comprehension of the views of the High Court, it would be profitable to take a brief note of the findings in the impugned judgment. 4.1. The High Court observed that the common issue arising for determination in the appeals was regarding the character of the subject- property namely, theatre with land and shopping complex with land after the five sisters, i.e., respondent No. 1 and respondent Nos. 2 to 4 entered into the partnership arrangement. The High Court adverted to the question as to whether the properties obtained by them under the partition would partake the character of partnership assets after the formation of partnership; and took note of the principles as to how a property could be brought in as a partnership asset expressly or by conduct. The High Court observed that merely....
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....s of the partnership deed expressly prohibits a partner from alienating his share in the partnership without the consent of the other partners. (c) "Non est factum" - the plaintiff was made to believe that she was executing a security deed for the distributionship of a film; she never intended to execute a Sale Deed." 5.1. The first two grounds aforesaid were rejected by the High Court with reference to the fact that the property in question was a co-ownership property and not a partnership asset; and what was purported to be conveyed under the sale deed in question (Ex. A-1) was 1/5th right of the plaintiff as the co-owner of the property and it was not in the assignment of the right of a partner. The High Court, therefore, rejected these two grounds. Moving on to the third ground pertaining to non est factum, the High Court observed that on the evidence available on record, there were certain circumstances leaning in favour of the plaintiff and there were other circumstances leaning in favour of the genuineness of the sale. The observations of the High Court as regards the competing sets of evidence read as under: - "21. On the evidence available, certain cir....
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....n of Ext.A1 sale. According to the plaintiff, the execution and registration of Ext.A1 did not take place at the Sub Registrar's Office; she was made to affix signatures while she was at the ground floor of the building. However, the Sub Registrar or the Document writer have not been examined. The document writer is the same person who executed sale deed in respect of the other two items(items 1 and 4) that belonged to the sisters under the partition. Though in paragraph 3 of the plaint, it is alleged that the brother of the plaintiff's husband accompanied the plaintiff to the SRO, he has not been examined. The plaintiff who is said to have been defrauded has not stepped into the witness box. Though under Section 120 of the Indian Evidence Act, the husband may be a competent witness to depose on behalf of wife, in the nature of the allegations as made, the plaintiff was a vital witness and her non-examination looms large." 5.2. After the observations aforesaid, the High Court expressed that the evidence necessary for 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 of....
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....evidence on her behalf as PW-1. With reference to illustration (g) to Section 114 of the Evidence Act, learned counsel for the appellant has argued that adverse inference ought to have been drawn against the plaintiff-respondent No. 1 for not presenting herself in the witness-box, particularly when the allegations of fraud were sought to be made the basis of her claim. Learned counsel has also submitted that none of the elements of proviso (1) to Section 92 of the Evidence Act having been established, the Trial Court, after appreciation of evidence, took a reasonable view of the matter while finding that the circumstances were probabilising the case of the defendant-appellant. Hence, for the suit having rightly been dismissed, there was no reason to remand the case for a trial de novo. Learned counsel has referred to and relied upon the decision of this Court in the case of Municipal Corporation, Hyderabad v. Sunder Singh: (2008) 8 SCC 485. 7. Per contra, with reference to the background aspects, the learned counsel for the plaintiff-respondent No.1 has vehemently argued that the sale deed in question is a void document as no consideration was passed on to her and hence, the sam....
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....urt in the cited decisions. 9.1. The provisions contained in Rules 23, 23-A, 24, 27 and 33 of Order XLI CPC read as under: - "23. Remand of case by Appellate Court .- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. 23-A. Remand in other cases .- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23. 24. Where evidence on reco....
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....y objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order." 9.2. While explaining the scope of Rules 23 and 23-A of Order XLI CPC, in the case of Municipal Corporation, Hyderabad (supra), this Court has observed as under: - "32. A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order 41 Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order 41 Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence. 33. Order 41 Rule 23-A of the Code of Civil Procedure is also not attracted. The High Court had not arrived at a finding that a retrial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order 41 Rule 23 of the Code. 34. An order of remand cannot be passed on ipse dixit of the court ...... " 9.3. In the case of Sanj....
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....der 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 furth....
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....dgment 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....