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Supreme Court of India
S.B. SINHA & MUKUNDAKAM SHARMA
H.P. Vedavyasachar
Versus
Shivashankara & Another
CIVIL APPEAL NO.5201 OF 2009 ARISING OUT OF S.L.P. (C) NO.1279 OF 2008
Decided on: 03-08-2009
Civil Procedure Code, 1908- Order XVIII - Rule 12 - Specific Relief Act - Section 6 – Enquiry – Property - Plaintiff is appellant before us filed suit praying inter alia for following reliefs grant judgment and decree of permanent injunction restraining the first and second defendants either by themselves or through anyone on their behalf from interfering plaintiffs right title and interest over and in the suit scheduled property including creating documents alienating property others and award cost and grant such other relief as deemed fit and proper circumstances in interest of justice and equity - However application for leave to amend plaint was filed which having been allowed prayers made in amended plaint read as judgment and decree perpetual injunction against defendants directing defendants to restore possession of schedule premises plaintiff and not to interfere in the plaintiffs lawful possession and enjoyment schedule property in any manner whatsoever - A judgment and decree against defendants for mandatory injunction directing defendants to restore possession of the B schedule property which marked ABCD in annexed sketch and there may be decree for permanent injunction against the defendants for CDEF portion which is marked in annexed sketch described C schedule to the plaint and there may be a decree enquiry into mesne profits with and also there may be a decree for cost of suit with such other relief or reliefs as Honble Court deems fit in circumstances of case –Held, Appellant that suit was instituted terms Section Specific Relief concerned in our opinion same cannot be accepted - Appellant has not only prayed for grant decree for permanent injunction but has also asked passing decree for mandatory injunction directing respondents to handover possession to - Such prayers our opinion would not come within the purview Section Specific Relief Act - However far as second contention raised by counsel for appellant concerned our opinion same has substance. When an application for adducing additional evidence is allowed appellate court has two options open - It may record evidence itself or it may direct the trial court - Order Rule of CPC reads - Mode of taking additional evidence -Wherever additional evidence 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 send it when taken to Appellate Court - But the same by itself could not be ground for remitting entire suit to the learned trial judge upon setting aside the decree of the learned trial court - power of remand vests in the appellate court either in terms of Order Rules and Order Rule Code of Civil Procedure Issue was held to have been wrongly framed Onus of proof was also wrongly placed and only that view of matter High Court thought it fit to remit it to the learned trial judge to determine a question of which according to it was essential upon reframing issue - None of aforementioned provisions were available to the High Court therefore modification of the order passed by High Court - Appeal disposed
Certainly. Based on the provided legal document, here are the key points summarized:
The appellant filed a suit seeking a judgment and decree for a permanent injunction to prevent the defendants from interfering with the plaintiff's rights, title, and interest over the scheduled property, including preventing the creation of documents or alienation of the property (!) .
An application was filed and allowed to amend the plaint, which included additional prayers for mandatory and permanent injunctions, recovery of possession, and an enquiry into mesne profits (!) (!) .
The suit was decreed in favor of the plaintiff, but the respondents appealed. The appellate court permitted the respondents to adduce additional evidence, citing procedural provisions allowing such evidence to be produced either by the appellate court or directed to be taken by the trial court (!) (!) .
The appellate court remanded the case to the trial court for fresh disposal concerning the claim for possession of a specific schedule property, due to the trial court's failure to provide adequate opportunity to the respondents for evidence adduction (!) (!) .
The appellant challenged the correctness of the appellate court's order, arguing that the suit was under a specific section of the law and that the remand was improper because the case involved a different legal framework and procedural provisions (!) (!) (!) .
The respondents contended that the trial court improperly refused to allow evidence and that the appellate court's directions were justified. They also argued that the remand was appropriate under the procedural rules (!) (!) .
The court clarified that the suit involved claims beyond those permitted under the specific section cited by the appellant, and thus the appeal was maintainable (!) (!) .
Regarding the procedural aspect of adducing additional evidence, the court held that the appellate court could either record evidence itself or direct the trial court to do so, but the order of remand issued by the appellate court was not in accordance with the applicable procedural provisions (!) (!) .
The court emphasized that remanding a case to the trial court for evidence collection must be based on specific procedural rules, which were not followed in this case. The proper procedure involves remand under particular rules, not simply a general direction to dispose of the case after evidence collection (!) (!) .
The court modified the appellate order, directing that the trial court record the evidence within a specified period, transmit the records to the appellate court, and that the appellate court dispose of the appeal expeditiously, within a set timeframe (!) (!) (!) .
The court noted the delay in the case and the fact that the plaintiff had been dispossessed long ago, and accordingly, no costs were awarded (!) (!) .
The appeal was disposed of with the directions outlined, emphasizing adherence to proper procedural rules for evidence and remand processes (!) (!) .
Please let me know if you need further analysis or specific legal advice based on this document.
Judgment
S.B. Sinha J.
1. 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."
2. 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.:
3. 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."
4. 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 decr
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