High Court Cannot Remand When Evidence Is Already on Record, Supreme Court Holds

A bench of Justices S.V.N. Bhatti and N.V. Anjaria sets aside a Karnataka High Court remand order, holding that appellate courts must decide on available material rather than send cases back to trial.

The Supreme Court has set aside a Karnataka High Court order that remanded a property partition dispute back to the Trial Court, ruling that a first appellate court exercises its discretion incorrectly when it orders remand despite full oral and documentary evidence being on record. The Court, in Shivappa v. Shantavva and Others, restored the first appeals and directed the High Court to decide them on merits. The judgment, delivered on 13 August 2026 by a Division Bench of Justice S.V.N. Bhatti and Justice N.V. Anjaria, reinforces the consistent line of authority that remand under Order 41 Rule 23 of the Civil Procedure Code, 1908 is available only in rare circumstances, not as a routine appellate tool.

The Partition Dispute and the Sale Deed at Issue

The dispute originated in O.S. No. 143 of 2015 filed on 17 March 2015 before the I Additional Senior Civil Judge and Chief Judicial Magistrate, Dharwad. The plaintiffs — members of a Hindu Undivided Family tracing their ancestry to one Madiwalappa — sought partition and separate possession of five items of ancestral property, along with a declaration that a sale deed executed by Madiwalappa was illegal, null and void, and not binding on their share.

The contested property was Item No. 5: 5 Acres 12 Guntas in RS/Block No. 137/3 in Amminbhavi village, Dharwad Taluk. On 28 June 1982, Madiwalappa had executed a registered sale deed for this item in favour of Shivappa, who became Defendant No. 2 in the suit. The plaintiffs alleged the sale deed was sham and bogus, that Madiwalappa was addicted to bad habits and vices, that there was no legal necessity for the sale, and that the family derived no benefit from it.

Shivappa contested these claims. He asserted that the sale deed of 28 June 1982 was valid, that the sale consideration of Rs. 16,000 had been paid, and that the proceeds were used to discharge loans taken for a family marriage and to repay a bank loan. He contended he had been in exclusive possession and enjoyment of Item No. 5 as absolute owner from the date of execution of the sale deed. He further alleged the plaintiffs had filed the suit in collusion with Defendant No. 1 to grab the property.

How the Trial Court Decided

The Trial Court framed five issues, including whether Defendant No. 2 proved that a family partition took place on 4 January 1980, and whether Defendant No. 2 proved that Madiwalappa sold Item No. 5 by registered sale deed dated 28 June 1982 for family legal necessity.

On Items 1 to 4, the Trial Court accepted the plaintiffs' case that the suit schedule properties were ancestral, acquired through the family partition dated 4 January 1980, and awarded equal one-third shares to Plaintiffs Nos. 2 and 3 and Defendant No. 1.

On Item No. 5, the Trial Court found in Shivappa's favour across every material point. It held that the plaintiffs had not produced any credible evidence that Madiwalappa was addicted to bad vices. The sale deed was registered in accordance with law. Madiwalappa's signature was not disputed. On the date of execution, Madiwalappa was the Karta of the HUF, and it was natural and believable that in 1982 he was responsible for family affairs, given that his son Defendant No. 1 was then a minor. The recitals of the sale deed showed the sale consideration, the loan discharge purpose, and the handover of possession on the date of execution. As for possession, the Trial Court held that possession follows title, and Defendant No. 2 had acquired title through the registered sale deed.

Crucially on limitation, the Trial Court found that the plaintiffs had challenged the sale deed thirty-three years after its execution. Under Articles 58 and 59 of the Limitation Act, 1963, the challenge had to be made within three years from the date of execution or knowledge. The suit for declaration was therefore time-barred, and relief was denied.

What the High Court Did — and Why the Supreme Court Disagreed

Both sides appealed. The High Court, in RFA No. 100251 of 2020 and RFA CROB No. 100005 of 2023, confirmed the Trial Court's findings on Items 1 to 4 but reversed course on Item No. 5. Rather than deciding the merits, the High Court remitted Item No. 5 to the Trial Court with directions to frame fresh issues, afford parties an opportunity to lead further evidence, and dispose of the suit afresh on that item.

The High Court's reasoning rested on several perceived deficiencies. It found that although the plaintiffs had specifically pleaded the sale deed was sham and not acted upon, no dedicated issue was framed on that question. It found that no issue on limitation was framed, even though limitation is a question of law that courts must address regardless of whether a party raises it under Section 3 of the Limitation Act. It also found that Shivappa had not placed sufficient material to prove exclusive possession from the date of the sale deed.

The Supreme Court examined this reasoning and found it did not justify a remand. The Court observed that Issue No. 2 was a comprehensive issue on the partition dated 4 January 1980, and Issue No. 3 covered whether the sale of Item No. 5 in Shivappa's favour was valid or not. The Trial Court had therefore not proceeded without relevant issues being raised. Full oral and documentary evidence had been adduced by both sides in accordance with the burden and onus of proof fastened on them.

The Court held that at this stage — after a full trial and a first appeal — directing the parties to reframe issues and lead further evidence was completely contrary to established legal principles. The first appellate court had all questions of fact and law open before it. There were no circumstances preventing it from deciding the points in issue.

The Precedent Line on Remand

The Court drew on three prior decisions that it found directly on point.

In Ashwini Kumar K. Patel v. Upendra J. Patel & Ors., (1999) 3 SCC 161, the Court had held that a High Court should not ordinarily remand a case under Order 41 Rule 23 CPC merely because it found the reasoning of the lower court wrong in some respects. The Court had specifically stated that

In P. Purushottam Reddy & Anr. v. Pratap Steels Ltd., (2002) 2 SCC 686, the Court held that even where a specific issue was not framed by the trial court, if the parties and the court were alive to the issue and it was adjudicated upon, the High Court as the court of first appeal should examine whether the finding was sustainable rather than remand.

In Zarif Ahmad (Dead) Through LRs. & Anr. v. Mohd. Farooq, (2015) 13 SCC 673, the Court clarified that Section 107 CPC and Order 41 Rule 24 CPC together contemplate that where evidence on record is sufficient, the appellate court may determine the case finally, and that remand should occur only in rare situations — such as where the trial court disposed of a suit on a preliminary issue without recording evidence on the remaining issues.

The Supreme Court applied these precedents directly to the facts. The parties had fought a full trial. The evidence was complete. The High Court had the entire record before it. The remand therefore reflected an incorrect exercise of appellate discretion.

The Court added a qualification: its view should not be read as holding that an appellate court can never afford parties an opportunity to adduce evidence — including under Order 41 Rule 27 CPC — in appropriate circumstances. But such discretion is exercised only when imminently warranted by the circumstances of a given case. That threshold was not met here.

Outcome

The Supreme Court allowed the civil appeals. The findings of the High Court on Item No. 5 of the suit schedule and the order of remand to the Trial Court were set aside. The appeals were restored to the High Court for disposal on the merits. The Court made clear it was not expressing any view on the merits of either side's case, as that would be for the High Court to determine. No order as to costs was made.