Vs. Shivshankara & ANR.  INSC 1361 (3 August 2009)
COURT OF INDIA RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal
(Civil) No(s).1279/2008 (From the judgement and order dated 29/10/2007 in RFA
No. 1966/2007 of The HIGH COURT OF KARNATAKA AT BANGALORE) H.P.VEDAVYASACHAR
Petitioner(s) VERSUS SHIVSHANKARA & ANR. Respondent(s) (With prayer for
interim relief and office report) Date: 03/08/2009 This Petition was called on
for hearing today.
MR. JUSTICE S.B. SINHA HON'BLE DR. JUSTICE MUKUNDAKAM SHARMA For Petitioner(s)
Mr. Balalji Srinivasan,Adv.
Sudarsna Ojha, Adv.
Respondent(s) Mr. C.G. Gopalsamy, Adv.
Narendra Kumar, Adv.
hearing counsel the Court made the following ORDER Leave granted.
appeal is disposed of in terms of the signed reportable judgment. In the facts
and circumstances of this case, there shall be no order as to costs.
GUPTA) (PUSHAP LATA SR. P.A. BHARDWAJ) COURT MASTER
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5201 OF
2009 ARISING OUT OF S.L.P. (C) NO. 1279 OF 2008 H.P. VEDAVYASACHAR .....
plaintiff is appellant before us. He filed a suit praying inter alia for the
grant a judgment and decree of a permanent injunction restraining the first and
second defendants either by themselves or through anyone on their behalf from
interfering in the plaintiffs right, title and interest over and in the suit
scheduled property including creating documents alienating the property to
others and award cost and grant such other relief(s) as deemed fit and proper
under the circumstances in the interest of justice and equity."
an application for leave to amend the plaint was filed which having been
allowed; the prayers made in the amended plaint read as under:- "(a) a
judgment and decree of perpetual injunction against the defendants 1 to 3
directing the defendants to restore the possession of the schedule premises to
the plaintiff and not to interfere in the plaintiff's lawful possession and
enjoyment of the schedule property in any manner whatsoever.
judgment and decree against the defendants for mandatory injunction directing
the defendants to restore the possession of the 'B' schedule property, which is
marked 'ABCD' in the annexed sketch, and there may be a decree for permanent injunction
against the defendants for 'CDEF' portion which is marked in the annexed sketch
described as 'C' schedule to the plaint and there may be a decree for the
enquiry into the mesne profits with Order XVIII Rule 12 of CPC, and also there
may be a decree for the cost of the suit, with such other relief or reliefs as
this Hon'ble Court deems fit in the circumstances of the case.:
suit was decreed. The respondents herein preferred an appeal there against
before the High Court. An application for permission to adduce additional
evidence in terms of Order XLI Rule 27 of the Code of Civil Procedure was filed
inter alia on the premise that respondents had not been given opportunity to
adduce said evidence by the learned trial judge.
application was allowed. It is stated that an opportunity had been granted to
the respondents to adduce their evidence on four occasions namely 30th March,
2007, 5th June, 2007, 11th June, 2007 and 13th June, 2007.
despite the same they failed to do so. However, by reason of the impugned
judgment, the first appellate court directed as under:- "Under the above
circumstances and particularly having regard to the appellants being not given
enough opportunity by the trial court to place their evidence, I am of the view
that the matter requires remand to the trial court for fresh disposal so far as
the claim of the respondent for delivery of vacant possession of 'B' schedule
property is concerned. Since the remand has been found to be necessitated for
the aforesaid reasons, I refrain from discussing the other aspects of the case
in regard to which the learned counsel for both parties have argued at great
length and also placed reliance on several decisions of various High Courts and
also of the Supreme Court. It is needless to say that any observations at this
juncture when the matter is being remanded would only affect the case of the
parties on merits and hence, I proceed to pass the following order:
application field by the appellants for leading additional evidence is allowed
and the appellants are permitted to lead additional evidence before the trial
court. the respondent also be provided opportunity to cross-examine the
appellants in regard to the additional evidence that is sought to be produced
and the trial court shall thereafter dispose of the case on merits insofar as
'B' Schedule property is concerned."
appellant is before us questioning the correctness of the said judgment.
learned counsel appearing on behalf of the appellant has raised two contentions
before us:- (i) the suit being one under Section 6 of the Specific Relief Act,
an appeal was not maintainable against the judgment and decree passed therein:
case has been made out for grant of an opportunity to adduce additional evidence
and that in any event for the said purpose, the entire case could not have been
remanded to the trial court for fresh disposal after recording fresh evidence
as it was not a removal as envisaged under Order XLI Rule 23 of CPC.
learned counsel appearing on behalf of the respondents, however, would contend
learned trial judge committed an illegality in refusing to take evidence which
the respondent intended to adduce by closing the case on 13.06.2007 which
necessitated filing of an application under Order XLI Rule 23 of the Code of
High Court having found that it may not be possible for it to record evidence
issued the following aforementioned directions.
So far as
the contention of the learned counsel for the appellant that the suit was
instituted in terms of Section 6 of the Specific Relief Act, 1963 is concerned, in our opinion, the same cannot be accepted
. Appellant has not only prayed for grant of a decree for permanent injunction
but has also asked for passing a decree for mandatory injunction directing the
respondents to handover possession to it. Such prayers, in our opinion, would
not come within the purview of Section 6 of the Specific Relief Act.
so far as the second contention raised by the learned counsel for the appellant
is concerned, in our opinion, the same has substance. When an application for
adducing additional evidence is allowed the appellate court has two options
open to it. It may record the evidence itself or it may direct the trial court
to do so. Order XLI Rule 28 of the CPC reads as under:- "28.Mode of taking
additional evidence - Wherever additional evidence is allowed to be produced,
the Appellate Court may either take such evidence, or direct the Court from
whose decree the appeal is preferred, or any other subordinate Court, to take
such evidence and to send it when taken to the Appellate Court."
aforementioned purpose, in our considered opinion, the High Court could not
have directed the trial court to dispose of the suit after taking evidence.
Such an order of remand could be only in terms of Order XLI Rule 23, Order XLI
Rule 23A or Order XLI Rule 25 of the Code. None of the said provisions have any
application in the instant case.
Court in Shanti Devi & Ors. v. Daropti Devi And Others (2006) 13 SCC 775
has held as under:- "But the same by itself could not be a ground for remitting
the entire suit to the learned trial judge upon setting aside the decree of the
learned trial court.
of remand vests in the appellate court either in terms of Order 41 Rules 23 and
23A or Order 41 Rule 25 of the Code of Civil Procedure. Isue 4 was held to have
been wrongly framed. Onus of proof was also wrongly placed and only in that
view of the matter the High Court thought it fit to remit it to the learned
trial judge to determine a question of fact, which according to it was essential
upon reframing the issue."
the aforementioned provisions were available to the High Court. We,
therefore,in modification of the order passed by the High Court direct as
learned trial court upon recording the evidence as directed by the High Court
shall transmit the records to the First Appellate Court with a copy of its
report annexed thereto.
an exercise by the learned trial court must be completed within a period of
four weeks from the date of communication of this order.
first appellate court must dispose of the first appeal on receipt of the said
order as also the evidence as adduced as expeditiously as possible and not
later than 8 weeks from the date of receipt of the said report.
passing the order keeping in view the fact that the appellant is said to have
been dispossessed as far back as 1993.
facts and circumstances of this case, there shall be no order as to costs.
appeal is disposed of, accordingly.
......................J [S.B. SINHA]
......................J [DR. MUKUNDAKAM SHARMA]
AUGUST 03, 2009.