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Wednesday, May 24, 2017

Or.41, rule 27 read with rules 23, 23A and 25 = once the first Appellate Court allowed the application under Order 41 Rule 27 of Code and took on record the additional evidence, it rightly set aside the judgment/decree of the Trial Court giving liberty to the parties to lead additional evidence in support of their case which, in turn, enabled the Trial Court to decide the civil suit afresh on merits in the light of entire evidence. The first Appellate Court was, therefore, justified in taking recourse to powers conferred on the Appellate Court under Order 41 Rule 23-A for remanding the case to the Trial Court. We find no fault in exercise of such power by the first Appellate Court.- In our considered view, the only error which the first Appellate Court committed was that it went on to record the findings on merits. In our view, it was not necessary to do so while passing the order of remand. The reason is that once the first Appellate Court formed an opinion to remand the case, it was required to give reasons in support of the remand order as to why the remand is called for in the case. Indeed, the remand was made only to enable the Trial Court to decide the case on merits. Therefore, there was no need to discuss much less record findings on several issues on merits. It was totally uncalled for.; There are three provisions in the Code which deal with the power of the Appellate Court to remand the case to the Trial Court. These provisions are Order 41 Rules 23, 23-A, and 25. - So far as Order 41 Rule 23 is concerned, it enables the Appellate Court to remand the case to the Trial Court when it finds that the Trial Court has disposed of the suit upon a preliminary point. The Appellate Court in such cases is empowered to direct the Trial Court to decide all the issues on evidence on record. So far as Rule 23-A is concerned, it enables the Appellate Court to remand the case to the Trial Court when it finds that though the Trial Court has disposed of the suit on all the issues but on reversal of the decree in appeal, a re-trial is considered necessary by the Appellate Court.- So far as Rule 25 is concerned, it enables the Appellate Court to frame or try the issue if it finds that it is essential to the right decision of the suit and was not framed by the Trial Court. The Appellate Court in such case may, accordingly, frame the issues and refer the same to the Trial Court to take the evidence and record the findings on such issues and return to the Appellate Court for deciding the appeal. In such cases, the Appellate Court retains the appeal to itself.[ Order 43 Rule 1(u) confers limited power on the High Court to examine only the legality and correctness of the remand order of the first Appellate Court but not beyond that. In other words, the High Court should have seen that Order 43 Rule 1(u) gives a limited power to examine the issue relating to legality of remand order, as is clear from Order 43 Rule 1(u) which reads thus:- “1(u) an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court”; it was not possible for the first Appellate Court to have recorded the evidence at the appellate stage. Secondly, having regard to the nature of factual controversy involved and keeping in view the nature of additional evidence filed which too needed to be proved in evidence, it was not possible to retain the appeal to itself and invite finding only on additional evidence by taking recourse to powers under Rule 25; and lastly, wholesome remand, as directed by the first Appellate Court, would enable the Trial Court to appreciate the entire evidence in its proper perspective while deciding the suit afresh on merits.= We are also unable to agree with the High Court when it reversed the finding of the first Appellate Court, in so far as it pertained to application filed by the plaintiff under Order 41 Rule 27 of the Code. In our opinion, no fault could be found in the finding of the first Appellate Court on this issue for the following reasons: First, the additional evidence sought to be filed at the first appellate stage was held to be material and necessary for proper adjudication of the suit; and second, the reasons as to why it could not be filed during the trial also found acceptance to the first Appellate Court. In order to enable the parties to have fair trial in civil suit and with a view to do substantial justice, the first Appellate Court, in our view, rightly allowed the plaintiff to file the additional documents in appeal which satisfied the requirements of Order 41 Rule 27 of the Code. We cannot, therefore, concur with the reasoning and the conclusion arrived at by the High Court in the light of reasoning mentioned above. 32) In view of foregoing discussion, we allow the appeal, set aside the impugned order of the High Court and restore that of the first Appellate Court with modification as mentioned in para 22. Liberty is granted to the defendants to file in rebuttal any additional evidence before the Trial Court in support of their case. The Trial Court will allow the parties to lead oral evidence to prove additional documentary evidence and then decide the suit afresh on merits strictly on the basis of evidence in accordance with law without being influenced by any observations made by the first Appellate Court, the High Court and this Court in their respective orders passed in these proceedings. The Trial Court shall ensure disposal of the suit, as directed, within six months as an outer limit. Parties to appear before the Trial Court on 01.05.2017 to enable the Trial Court to decide the suit as directed above.

      REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 5540 OF 2017
                 (Arising out of S.L.P.(c) No. 2771 of 2014)


J. Balaji Singh                         ….Appellant(s)

                                   VERSUS

Diwakar Cole & Ors.                    ….Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
      1)    Leave granted.
2)    This appeal is filed by the plaintiff against the final  judgment  and
order dated 26.09.2013 passed  by  the  High  Court  of  Judicature,  Andhra
Pradesh at Hyderabad in Civil  Misc.  Appeal  No.645  of  2012  whereby  the
learned Single Judge of the High Court  allowed  the  appeal  filed  by  the
defendants (respondents herein) and set aside the judgment and decree  dated
17.02.2012 passed by the Additional District  Judge,  Kadapa  and  confirmed
the judgment and decree dated 31.12.2009 passed by the Senior  Civil  Judge,
Kadapa in Original Suit No.62 of 2005.
3)    Facts necessary for the disposal of the appeal, which lies  in  narrow
compass, need mention infra to appreciate the controversy  involved  in  the
appeal.
4)    The appellant  is  the  plaintiff  whereas  the  respondents  are  the
defendants in a civil suit out of which this appeal arises.
5)    The appellant filed a civil suit being O.S. No.62 of 2005  before  the
Senior Civil Judge, Kadapa against the respondents for  declaration  of  his
title over the suit property (described in detail in  the  Schedule  to  the
plaint)  and  also  sought  permanent  injunction  against  the  respondents
restraining them from interfering in his possession over the suit  property.

6)    The respondents filed their respective written statements  and  denied
the appellant's claim over the suit property. The Trial Court framed  issues
on law and facts on the basis of the pleadings for adjudicating  the  rights
of the parties arising in  the  case.  The  parties  filed  the  documentary
evidence and adduced oral evidence in support of their respective case.
7)    The Trial Court, vide judgment/decree dated 31.12.2009 in  O.S.  No.62
of 2005 dismissed the appellant's suit. Felt aggrieved, the appellant  filed
first appeal being A.S. No.42 of 2010  before  the  VI  Additional  District
Judge, Kadapa. In appeal, the appellant filed one application (I.A. No.  211
of 2011) under Order 41 Rule 27 read with Section 151 of the Code  of  Civil
Procedure,  1908  (hereinafter  referred  to  as  “the  Code")  and   sought
permission to file additional evidence (documents) in support  of  his  case
which, according to him, was material and necessary for the proper  disposal
of the suit.  It was alleged that  the  additional  evidence  could  not  be
filed in suit at that time due to its non-availability with  the  plaintiff.
The respondents opposed the application.
8)    The  first  Appellate  Court,  by  judgment/decree  dated  17.02.2012,
allowed the application (I.A.No.211 of 2011) filed by  the  appellant  under
Order 41 Rule 27 read with Section 151 of the Code  and  then  proceeded  to
decide the appeal on merits.  By his lengthy  judgment  (pages  97  to  129,
Annexure P-10 to SLP paper book)  the  first  Appellate  Judge  allowed  the
appeal, set  aside the judgment/decree  of the Trial Court and remanded  the
case to the Trial Court for deciding the suit afresh on merits  uninfluenced
by any of the observations made by him in the judgment.   The  parties  were
granted liberty to adduce additional evidence in support of  their  case  in
the Trial Court.
9)     Felt  aggrieved  by   the   aforesaid   judgment,   the   respondents
(defendants) filed C.M.A. No.645 of 2012 before the High Court  under  Order
43 Rule 1 (u) of the Code.
10)   By impugned judgment, the learned Single  Judge  allowed  the  appeal,
set aside the judgment of the first Appellate Court and dismissed  the  suit
by restoring the judgment and decree of the  Trial  Court.  Felt  aggrieved,
the plaintiff has filed this appeal by way  of  special  leave  before  this
Court.
11)   Heard Mr. D. Bharat Kumar, learned counsel for the appellant  and  Mr.
Y. Raja Gopala Rao, learned counsel for the respondents.
12)   Having heard learned Counsel for the parties and  on  perusal  of  the
record of the case, we are constrained to allow the appeal,  set  aside  the
impugned judgment and remand the case to the Trial Court  for  deciding  the
civil suit afresh on merits in accordance with law.
13)   The question, which  arises  for  consideration  in  this  appeal,  is
whether the High Court was justified in allowing the defendants’ appeal  and
thereby justified in restoring the judgment/decree of the Trial Court  which
had dismissed the suit.  In other words, the questions  which  arose  before
the High Court were, whether the first  Appellate  Court  was  justified  in
setting aside the judgment/decree of the Trial Court; and if so, whether  it
was justified in remanding the case to the Trial Court for  fresh  trial  of
the  suit  in  accordance  with  law.  Another  question,  which  fell   for
consideration, was whether  the  first  Appellate  Court  was  justified  in
allowing the application filed by the appellant (plaintiff) under  Order  41
Rule 27 of the Code by which the plaintiff had sought permission  to  adduce
additional evidence in appeal in support of his case.
14)   As is clear from mere perusal of the impugned judgment, we  find  that
the High Court recorded inconsistent finding  insofar  as  it  pertained  to
Order 41 Rule 27 of the Code.   In Para 26, it was held  as under:
"26………….Assuming that the lower appellate Court  felt  that  the  additional
documents filed by the plaintiff in the appeal before it have  some  bearing
on the  case,  nothing  prevented  it  from  considering  the  same,  giving
opportunity to both parties to lead evidence and deciding the appeal……."

15)   Whereas in the other part of the judgment, the  learned  Single  Judge
did not approve the approach  of  the  first  Appellate  Court  in  granting
indulgence to the appellant to fill the  lacuna  by  adducing  evidence.  Be
that as it may, having observed this, the High Court  proceeded  to  examine
the case on  merits  and  eventually  allowed  the  appeal,  set  aside  the
judgment of the first Appellate Court and restored  the  judgment/decree  of
the Trial Court. The effect of the judgment of the High Court  is  that  the
plaintiff's suit stands dismissed.
16)   The main question,  which  fell  for  consideration  before  the  High
Court, was whether the first Appellate Court  was  right  in  remanding  the
case to the Trial Court for fresh trial on merits?
17)   There are three provisions in the Code which deal with  the  power  of
the Appellate Court to remand the case to the Trial Court. These  provisions
are Order 41 Rules 23, 23-A, and 25.
18)   So far as Order 41 Rule 23 is  concerned,  it  enables  the  Appellate
Court to remand the case to the Trial Court when it  finds  that  the  Trial
Court has disposed of the suit  upon  a  preliminary  point.  The  Appellate
Court in such cases is empowered to direct the Trial  Court  to  decide  all
the issues on evidence on record.
19)   So far as Rule 23-A is concerned, it enables the  Appellate  Court  to
remand the case to the Trial Court when  it  finds  that  though  the  Trial
Court has disposed of the suit on all the issues  but  on  reversal  of  the
decree in appeal, a  re-trial  is  considered  necessary  by  the  Appellate
Court.
20)   So far as Rule 25 is concerned, it  enables  the  Appellate  Court  to
frame or try the issue if it  finds  that  it  is  essential  to  the  right
decision of the suit and was not framed by the Trial  Court.  The  Appellate
Court in such case may, accordingly, frame the issues and refer the same  to
the Trial Court to take the evidence and record the findings on such  issues
and return to the Appellate Court for deciding the appeal.  In  such  cases,
the Appellate Court retains the appeal to itself.
21)   Now coming to the facts of the case, we are of the considered  opinion
that once the first Appellate Court allowed the application under  Order  41
Rule 27 of Code and took on record the additional evidence, it  rightly  set
aside the judgment/decree of the Trial Court giving liberty to  the  parties
to lead additional evidence  in  support  of  their  case  which,  in  turn,
enabled the Trial Court to decide the civil suit afresh  on  merits  in  the
light  of  entire  evidence.  The  first  Appellate  Court  was,  therefore,
justified in taking recourse to powers  conferred  on  the  Appellate  Court
under Order 41 Rule 23-A for remanding the case to the Trial Court. We  find
no fault in exercise of such power by the first Appellate Court.
22)   In our considered view, the  only  error  which  the  first  Appellate
Court committed was that it went on to record the  findings  on  merits.  In
our view, it was not necessary to do so while passing the order  of  remand.
The reason is that once the first  Appellate  Court  formed  an  opinion  to
remand the case, it was required to give reasons in support  of  the  remand
order as to why the remand is called for in the case.   Indeed,  the  remand
was made only to enable the Trial  Court  to  decide  the  case  on  merits.
Therefore, there was no  need  to  discuss  much  less  record  findings  on
several issues on merits.  It was totally uncalled for.
23)   So far as the impugned order is concerned,  the  High  Court,  in  our
view, committed jurisdictional error when it also again  examined  the  case
on merits and set aside the  judgment  of  the  first  Appellate  Court  and
restored the judgment of the Trial Court. The High Court,  in  our  opinion,
should not have done this for the simple reason that it was  only  examining
the legality of the remand order in an appeal  filed  under  Order  43  Rule
1(u) of the Code.  Indeed, once the High Court came  to  a  conclusion  that
the remand order was bad in law then it could only remand the  case  to  the
first Appellate Court with  a  direction  to  decide  the  first  appeal  on
merits.
24)   The High Court failed to see  that  when  the  first  Appellate  Court
itself did not decide the appeal on  merits  and  considered  it  proper  to
remand the case to the Trial Court,  a  fortiori,  the  High  Court  had  no
jurisdiction to decide the appeal on merits. Moreover, Order  43  Rule  1(u)
confers limited power on the High Court to examine  only  the  legality  and
correctness of the remand order of the first Appellate Court but not  beyond
that. In other words, the High Court should have seen  that  Order  43  Rule
1(u) gives a limited power to examine the  issue  relating  to  legality  of
remand order, as is clear from Order 43 Rule 1(u) which reads thus:-
“1(u)  an order under rule 23 or rule 23A of Order  XLI  remanding  a  case,
where an appeal would lie from the decree of the Appellate Court”

25)   It is well settled law that the jurisdiction to decide the  appeal  on
merits can be exercised by the Appellate  Court  only  when  the  appeal  is
filed under Section 96 or 100 of the Code against the decree.  Such was  not
the case here.
26)   In the light of abovementioned discussion, we are of the opinion  that
the High Court had no  jurisdiction  to  consider  much  less  deciding  the
entire case of the parties on merits in such appeal.
27)   We are also unable to agree with the High Court when it held that  the
first Appellate Court instead of remanding  the  case  to  the  Trial  Court
should have heard the appeal on merits. This finding, in our  view,  is  bad
in law for the reason that firstly,  it  was  not  possible  for  the  first
Appellate Court to have  recorded  the  evidence  at  the  appellate  stage.
Secondly, having regard to the nature of factual  controversy  involved  and
keeping in view the nature of additional evidence filed which too needed  to
be proved in evidence, it was not possible to retain the  appeal  to  itself
and invite finding only on additional evidence by taking recourse to  powers
under Rule 25; and lastly,  wholesome  remand,  as  directed  by  the  first
Appellate Court, would enable the  Trial  Court  to  appreciate  the  entire
evidence in its  proper  perspective  while  deciding  the  suit  afresh  on
merits.
28)   We are also unable to agree with the High Court when it  reversed  the
finding of the  first  Appellate  Court,  in  so  far  as  it  pertained  to
application filed by the plaintiff under Order 41 Rule 27 of  the  Code.  In
our opinion, no fault could be found in the finding of the  first  Appellate
Court on this issue for the following reasons:
29)   First, the additional  evidence  sought  to  be  filed  at  the  first
appellate  stage  was  held  to  be  material  and  necessary   for   proper
adjudication of the suit; and second, the reasons as to why it could not  be
filed during the trial also found acceptance to the first Appellate Court.
30)   In order to enable the parties to have fair trial in  civil  suit  and
with a view to do substantial justice, the first  Appellate  Court,  in  our
view, rightly allowed the plaintiff to  file  the  additional  documents  in
appeal which satisfied the requirements of Order 41 Rule 27 of the Code.
31)   We cannot, therefore, concur with the  reasoning  and  the  conclusion
arrived at by the High Court in the light of reasoning mentioned above.
32)   In view of foregoing discussion, we allow the appeal,  set  aside  the
impugned order of the High Court and restore that  of  the  first  Appellate
Court with modification as mentioned in para 22.
33)   Liberty  is  granted  to  the  defendants  to  file  in  rebuttal  any
additional evidence before the Trial Court in support  of  their  case.  The
Trial  Court  will  allow  the  parties  to  lead  oral  evidence  to  prove
additional documentary evidence and then decide the suit  afresh  on  merits
strictly on the basis of evidence  in  accordance  with  law  without  being
influenced by any observations made by the first Appellate Court,  the  High
Court  and  this  Court  in  their  respective  orders   passed   in   these
proceedings.
34)   The Trial Court shall  ensure  disposal  of  the  suit,  as  directed,
within six months as an outer limit. Parties  to  appear  before  the  Trial
Court on 01.05.2017 to  enable  the  Trial  Court  to  decide  the  suit  as
directed above.


………...................................J.
                              [R.K. AGRAWAL]


…...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
April  24, 2017


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