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H.P Vedavyasachar v. Shivashankara And Another
Factual and Procedural Background
The plaintiff filed a suit seeking permanent and mandatory injunctions to protect and restore his possession over the suit-scheduled property. The trial court decreed the suit. The defendants (now respondents) appealed to the High Court and, contending that they had been denied an opportunity to lead evidence, filed an application under Order 41 Rule 27 of the Code of Civil Procedure (CPC) to adduce additional evidence.
Although the defendants had already been granted four opportunities to present evidence (30-3-2007, 5-6-2007, 11-6-2007 and 13-6-2007), the High Court nevertheless allowed their application, permitted additional evidence, and remanded the matter to the trial court for fresh disposal regarding “B schedule” property. The plaintiff (appellant) challenged this remand order before the Supreme Court.
Legal Issues Presented
- Whether the suit, purported to be under Section 6 of the Specific Relief Act, was immune from appeal, rendering the first appeal before the High Court incompetent.
- Whether the High Court erred in remanding the entire matter for fresh disposal after allowing additional evidence, instead of following the procedure stipulated in Order 41 Rule 28 CPC (recording the evidence itself or directing only the taking of such evidence and returning it to the appellate court).
Arguments of the Parties
Appellant's Arguments
- The suit fell under Section 6 of the Specific Relief Act; therefore, no appeal lay against the decree.
- Even if additional evidence could be allowed, the High Court had no jurisdiction to remand the whole case for de novo consideration; at most it could record the evidence itself or get it recorded under Order 41 Rule 28 CPC.
Respondents' Arguments
- The trial court illegally closed their evidence on 13-6-2007, compelling them to seek relief under Order 41 Rule 27 CPC.
- Given practical difficulties in recording evidence, the High Court correctly exercised its discretion by remanding the case.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shanti Devi v. Daropti Devi, (2006) 13 SCC 775 | Appellate power of remand is confined to circumstances enumerated in Order 41 Rules 23, 23-A, and 25 CPC; wholesale remand is impermissible where those provisions do not apply. | Relied upon to hold that the High Court’s blanket remand exceeded its jurisdiction because none of the specific remand provisions were attracted. |
Court's Reasoning and Analysis
Issue 1 – Maintainability of Appeal: The Supreme Court rejected the appellant’s contention that the suit was under Section 6 of the Specific Relief Act. The plaint sought not only recovery of possession but also permanent and mandatory injunctions, placing it outside the narrow ambit of Section 6. Consequently, an appeal was maintainable.
Issue 2 – Propriety of the Remand Order: Allowing additional evidence under Order 41 Rule 27 gives the appellate court two procedural choices under Rule 28: (a) record the additional evidence itself, or (b) direct the trial court to record the evidence and forward it. The High Court, however, ordered the trial court to conduct an entire retrial on the merits, which is permissible only under Order 41 Rules 23, 23-A, or 25—none of which applied here. Citing Shanti Devi v. Daropti Devi, the Court held that the High Court’s order was beyond its statutory remit.
To correct this procedural error while preserving the opportunity for additional evidence, the Supreme Court modified the order: the trial court shall merely record the additional evidence within four weeks and transmit the record and a report to the appellate court, which must then dispose of the appeal within eight weeks of receipt.
Holding and Implications
Holding: The appeal is ALLOWED IN PART; the High Court’s blanket remand is set aside. The trial court is directed to record the additional evidence and transmit it to the appellate court within four weeks, and the appellate court must decide the appeal on the merits within eight weeks thereafter. No order as to costs.
Implications: The decision confines the remand power of appellate courts to the specific situations contemplated by Order 41 Rules 23, 23-A, 25, and 28 CPC, reinforcing procedural discipline. For the parties, the litigation continues, but with a significantly expedited timetable, addressing the appellant’s long-standing dispossession since 1993. The ruling clarifies but does not create new substantive precedent beyond interpreting the scope of appellate remand powers.
S.B Sinha, J.— Leave granted. The plaintiff is the 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 plaintiff's 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 has been allowed; the prayers made in the amended plaint read as under:
“(a) A judgment and decree of perpetual injunction against 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 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 18 Rule 12 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.
2. An application for permission to adduce additional evidence in terms of Order 41 Rule 27 of the Code of Civil Procedure was filed inter alia on the premise that the respondents had not been given opportunity to adduce the said evidence by the learned trial Judge. The said application was allowed.
3. It is stated that an opportunity had been granted to the respondents to adduce their evidence on four occasions, namely, 30-3-2007, 5-6-2007, 11-6-2007 and 13-6-2007. 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 filed 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.
4. 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 41 Rule 23 CPC.
5. 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 13-6-2007 which necessitated filing of an application under Order 41 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.
6. 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. The 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 hand over possession to it. Such prayers, in our opinion, would not come within the purview of Section 6 of the Specific Relief Act.
7. 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.
8. Order 41 Rule 28 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 41 Rule 23, Order 41 Rule 23-A or Order 41 Rule 25 of the Code. None of the said provisions have any application in the instant case.
9. This Court in Shanti Devi v. Daropti Devi (2006) 13 SCC 775 has held as under:
“13. 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 23-A or Order 41 Rule 25 of the Code of Civil Procedure. Issue 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 permitting the parties to adduce fresh evidence. It, therefore, required the learned trial Judge to determine a question of fact, which according to it was essential, upon reframing the issue.”
10. 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 eight 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 in 1993.
11. In the facts and circumstances of this case, there shall be no order as to costs. The appeal is disposed of, accordingly.
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