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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)
SHIVSHANKARA & ANR. Respondent(s)
(With prayer for interim relief and office report)
Date: 03/08/2009 This Petition was called on for hearing today.
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
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)
[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
SHIVASHANKARA & ANR. ..... RESPONDENTS
S.B. SINHA J.
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
"(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
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
(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
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
(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.
AUGUST 03, 2009.