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Code of Civil Procedure, 1908 – O.41 r. 27 – Suit for permanent and mandatory injunction – Decreed – In appeal, application for adducing additional evidence – Appellate court allowing the application remanding the matter to trial court for fresh disposal after recording the evidence – On appeal, Plea of maintainability of appeal, the suit being u/s 6 of the Specific Relief Act – Held : Appeal was maintainable as suit was not under Specific Relief Act – However, Appellate Court while allowing the application, could not have remanded the entire matter for disposal – It could have recorded or could have directed the trial court to record the evidence – Direction issued to trial court to transmit the case to appellate court after recording the evidence – Specific Relief Act, 1963 – s.6 Appellant filed a suit seeking permanent injunction and mandatory injunction against respondents. The suit was decreed. In appeal against the same, respondent-defendants filed an application under Order 41 r. 27 C.P.C. seeking permission to adduce additional evidence. The application was allowed. Despite grant of various opportunities to adduce evidence the respondent failed to do so. Thereafter, the appellate Court remanded the matter to trial court for fresh disposal after recording fresh evidence. Hence, the present appeal. =Disposing of the appeal, the Court HELD: 1. It is not correct to say that the suit was instituted in terms of Section 6 of the Specific Relief Act, 1963. 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 would not come within the purview of Section 6 of the Specific Relief Act. [Para 8] [272-H; 273-A-B] 2.1. High Court could not have directed the trial court to dispose of the suit after taking evidence. 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. Such an order of remand could be only in terms of Order XLI Rule 23, Order XLI Rule 23A or Order XLI Rule 25 CPC. None of the said provisions have any application in the instant case. [Paras 9 and 10] [273-E-F] Shanti Devi and Ors. vs. Daropti Devi and Ors. (2006) 13 SCC 775, relied on. 2.2. In modification of the impugned order, it is directed that 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. [Para 12] [274-C-D] Case Law Reference: (2006) 13 SCC 775 relied on Para 11 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5201 of 2009. From the Judgment & Order dated 29.10.2007 of the High Court of Karnataka at Bangalore in RFA No. 1966 of 2007. Balaji Srinivasan, Sudarsna Ojha, Dr. Maya Rao for the Appellants. C.G. Gopalsamy. T.S. Santhi, V. Balaji, Narendra Kumar for the Respondents.

High Court of Karnataka, Bangalore

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 ITEM NO.304 COURT NO.3 SECTION IVA

 SUPREME 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.

 CORAM :
 HON'BLE MR. JUSTICE S.B. SINHA
 HON'BLE DR. JUSTICE MUKUNDAKAM SHARMA

 For Petitioner(s) Mr. Balalji Srinivasan,Adv.
 Mr. Sudarsna Ojha, Adv.
 Dr. Maya Rao, Adv.

 For Respondent(s) Mr. C.G. Gopalsamy, Adv.
 Ms. T.S. Santhi,Adv.
 Mr. V. Balaji, Adv.
 Mr. Narendra Kumar, Adv.

 UPON hearing counsel the Court made the following
 ORDER


 Leave granted.
 The 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.




(KALYANI GUPTA) (PUSHAP LATA
 SR. P.A. BHARDWAJ)
 COURT MASTER


 [SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE.)
 IN THE 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 ..... APPELLANT

 VERSUS

 SHIVASHANKARA & ANR. ..... RESPONDENTS



 JUDGMENT



 S.B. SINHA J.

 Leave granted.

 The plaintiff is appellant before us. He filed a suit praying inter

alia for the following reliefs:

 "to 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."


 However, 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.

 (b) A 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.:


 The said suit was decreed. The respondents herein preferred an

appeal thereagainst 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.

The said 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.

But 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:
 The 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."


 The appellant is before us questioning the correctness of the said

judgment.

 The 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:

 (ii) No 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.



 The learned counsel appearing on behalf of the respondents,

however, would contend that:



 (i) the 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 Civil Procedure.

 (ii) The 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.



 However, 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."


 For the 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.



 This 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.
 The power 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."


 None of the aforementioned provisions were available to the High

Court. We, therefore,in modification of the order passed by the High Court

direct as under:



 (i) The 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.

 (ii)Such an exercise by the learned trial court must be completed

 within a period of four weeks from the date of communication of

 this order.

 (iii) The 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.
 We are passing the order keeping in view the fact that the appellant

is said to have been dispossessed as far back as 1993.



 In the facts and circumstances of this case, there shall be no order

as to costs.

 The appeal is disposed of, accordingly.



 ......................J
 [S.B. SINHA]



 ......................J
 [DR. MUKUNDAKAM
SHARMA]

NEW DELHI
AUGUST 03, 2009.
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