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SUPREME COURT OF INDIA
R.K. AGRAWAL, ABHAY MANOHAR SAPRE, JJ.
J. Balaji Singh – Appellant(s)
VERSUS
Diwakar Cole & Ors. – Respondent(s)
CIVIL APPEAL No. 5540 OF 2017 (Arising out of S.L.P.(c) No. 2771 of 2014)
Decided On : 24-04-2017
(b) Code of Civil Procedure, 1908 – Order XLI Rule 27 – However first appellate court also returning a finding on merits – Not proper – When matter is remanded to trial court, appellate court should not have recorded a finding on merits. (Para 22)
(c) Code of Civil Procedure, 1908 – Order XLIII Rule 1(u) – High Court should have only examined legality of the remand order – High Court, instantly, again examining the case on merits and setting aside judgment of first appellate court – Appeal can be decided on merits only if filed u/s 96 or 100 – High Court committing jurisdictional error. (Para 23)
(d) Code of Civil Procedure, 1908 – Order XLI Rule 27 – Additional evidence material and necessary for proper adjudication – First appellate court rightly accepting the same. (Para 29, 30)
Facts of the case:
The appellant filed a civil suit 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.
The Trial Court dismissed the appellant's suit.
The first Appellate Judge allowed the appeal filed by the appellant, set aside the judgment/decree of the Trial Court and remanded the case to the Trial Court for deciding the suit afresh on merits.
The 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.
Finding of the Court:
High Court committed a jurisdictional error.
Result: Appeal allowed.
JUDGMENT
Abhay Manohar Sapre, J.
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
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