On February 28, the Supreme Court ruled that High Courts should not send a case back for a new trial without providing a justification for why the judgement was being overturned. 

The Court added that a denovo trial cannot be ordered simply because a specific piece of evidence has not been presented. Negative inferences can be made against a party who has not submitted any evidence, but this is not a reason to remand the case for a new trial.

"...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"

A Kerala High Court ruling that had remanded a case for trial anew without referring to the Trial Court's findings or indicating how they were erroneous was overturned by a bench made up of Justice Dinesh Maheshwari and Justice Sudhanshu Dhulia.

The High Court did not explain why it believed the Trial Court's findings were incorrect, the Supreme Court observed. Pointing to the clauses allowing an appellate court to issue a remand order, in particular Rule 23 of Order XLI CPC, it was noted that their application to the current case was limited because the claim had not yet been decided on a preliminary issue. Once more, if the remand was made in accordance with Rule 23A, it was essential to satisfy the criterion that "the decree is reversed in appeal and a re-trial is regarded necessary." The Court observed that there was no explanation in the High Court's order as to why and how the decree was revered by it. It observed -

“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.”

According to illustration (g) of Section 114 of the Evidence Act, the Supreme Court held that if courts discover evidence in a party's possession that has not been presented, they may infer that producing it would be detrimental to the party withholding it. The High Court, however, cannot remand the case due to the absence of necessary evidence that should have been presented.

Case title: Sirajudheen v. Zeenath And Ors. 
Citation: Civil Appeal No. 1491 of 2023

Appearances of the Advocates:-

For Petitioner(s) 

Mr. Zulfiker Ali P.S., Adv.
Mr. Sajeeb S., Adv.
Ms. Lakshmi Sree P., Adv.
M/S Srm Law Associates, AOR

For Respondent(s) 
Mr. James P. Thomas, AOR
Mr. Liju V Stephen, Adv.
Mrs. Indu Susan Jacob, Adv.
Mr. Aock Kr Prasad, Adv.
Mr. Ravi Sagar, Adv.
Mr. I H Syed, Sr. Adv.
Mr. Abid Ali Beeran P, AOR
Mr. K M Firoz, Adv.
Mr. Sarath S Janardanan, Adv.