Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3033 OF 2006
The Corporation of Madras & Anr. ….Appellant(s)
VERSUS
M. Parthasarathy & Ors. …Respondent(s)
WITH
CIVIL APPEAL No.8185 OF 2018
(Arising out of S.L.P.(c) No. 21796 of 2018)
(D.No.15579/2017)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted in S.L.P.(c)
No………...D.No.15579/2017).
2) These appeals are directed against the final
Signature Not Verified
judgment and order dated 09.10.2002 passed by
Digitally signed by
ANITA MALHOTRA
Date: 2018.08.10
17:14:07 IST
Reason:
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the High Court of Madras in Second Appeal Nos.126
to 129 of 1997 and Writ Petition No.13097 of 1993
whereby the High Court dismissed the second
appeals filed by the appellants herein and allowed
the writ petition filed by the respondents herein.
3)
In order to appreciate the issue arising in these
appeals, few relevant facts need to be mentioned
hereinbelow.
4) The appellants are the defendants whereas the
respondents are the plaintiffs in the civil suits out of
which these appeals arise.
5) The dispute relates to a land measuring about
3600 sq. ft. in Block No.15, Aminjikarai Village,
Pulla Reddy Avenue, Chennai (hereinafter referred
to as the “suit land”).
6) The respondents claiming to be the owners of
the suit land filed four civil suits bearing O.S.
Nos.2207 of 1992, 2345 of 1992, 2346 of 1992 and
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2347 of 1992 against the appellants (defendants) in
the City Civil Court at Chennai for permanent
injunction.
7) The appellants on being served denied the
claims set up by the respondents by filing written
statement. Since all the four suits were between the
same parties and relate to one piece of land though
part of different four sale deeds and further there
was no multiplicity of causes of action, the Trial
Judge clubbed all the four suits for their analogous
disposal. The Trial Court accordingly framed
common issues on the basis of the pleadings.
Parties adduced their common evidence. The Trial
Court, by a common judgment/decree dated
24.09.1993, dismissed all the four suits filed by the
respondents with costs.
8) The plaintiffs (respondents herein) felt
aggrieved filed first appeals being A.S. Nos.338 to
3
th
341 of 1993 in the Court of 8 Additional District
Judge, Chennai. In the appeals, the plaintiffs filed
an application under Order 41 Rule 27 of the Civil
Procedure Code, 1908 (for short “the Code”) and
sought permission to adduce additional evidence in
support of their case (CMP No.1559/93).
9) By judgment/decree dated 17.12.1993, the
Additional District Judge allowed the application
filed under Order 41 Rule 27 of the Code thereby
permitting the plaintiffs (appellants before the first
Appellate Court) to file the additional evidence. The
Appellate Court then exhibited the additional
evidence as Exs. P16 to P20 and placing reliance
on the additional evidence tendered by the plaintiffs
for the first time at the appellate stage, allowed the
appeals, set aside the judgment and decree of the
Trial Court and decreed all the four civil suits filed
by the respondents against the appellants.
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10) The defendants (appellants herein) felt
aggrieved and filed second appeals in the High
Court. The plaintiffs (respondents herein) also filed
a writ petition in the High Court in relation to the
land in question. By impugned judgment, the High
Court dismissed the second appeals filed by the
defendants (appellants herein) and allowed the writ
petition filed by the respondents herein as a
consequence of dismissal of the appellants’ second
appeals and affirmed the judgment/decree passed
by the first Appellate Court. It is against this order
of the High Court, the defendants felt aggrieved and
filed the present appeals by way of special leave in
this Court.
11) Heard Mr. R. Basant, learned senior counsel
for the appellants and Ms. Aruna Prakash, learned
counsel for the respondents.
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12) Having heard the learned counsel for the
parties and on perusal of the written submissions
filed by the learned counsel for the respondents, we
are of the considered view that these appeals
deserve to be allowed in part on a short ground as
indicated infra .
13) It is an admitted fact that the respondents
(plaintiffs) had filed an application under Order 41
Rule 27 of the Code in their first appeals before the
first Appellate Court (CMP No.1559/93) praying
therein for production of additional evidence in
appeals. It is also an admitted fact that this
application was allowed and the additional evidence
was not only taken on record but also relied on by
the Appellate Court as for
Exs.P16 to P20
allowing the appeals filed by the respondents which,
in consequence, resulted in decreeing all the four
civil suits.
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14) In our considered opinion, the first Appellate
Court committed two jurisdictional errors in
allowing the appeals.
15) First, it took into consideration the additional
piece of evidence while deciding the appeals on
merits without affording any opportunity to the
appellants herein (who were respondents in the first
appeals) to file any rebuttal evidence to counter the
additional evidence adduced by the respondents
(appellants before the first Appellate Court). This
caused prejudice to the appellants herein because
they suffered the adverse order from the Appellate
Court on the basis of additional evidence adduced
by the respondents for the first time in appeal
against them. (See Land Acquisition Officer, City
Improvement Trust Board vs. H. Narayanaiah &
Ors. , (1976) 4 SCC 9, Shalimar Chemical Works
Ltd. vs. Surendra Oil & Dal Mills (Refineries) &
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Ors. , (2010) 8 SCC 423 and Akhilesh Singh vs. Lal
Babu Singh & Ors. , (2018) 4 SCC 759).
16) Second error was of a procedure which the
first Appellate Court failed to resort in disposing of
the appeals. This also involved a question of
jurisdiction.
17) Having allowed the CMP No.1559/1993 and, in
our opinion rightly, the first Appellate Court had
two options, first it could have either set aside the
entire judgment/decree of the Trial Court by taking
recourse to the provisions of Order 41 Rule 23A of
the Code and remanded the case to the Trial Court
for retrial in the suits so as to enable the parties to
adduce oral evidence to prove the additional
evidence in accordance with law or second, it had
an option to invoke powers under Order 41 Rule 25
of the Code by retaining the appeals to itself and
remitting the case to the Trial Court for limited trial
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on particular issues arising in the case in the light
of additional evidence which was taken on record
and invite findings of the Trial Court on such
limited issues to enable the first Appellate Court to
decide the appeals on merits.
18) The first Appellate Court failed to take note of
both the above mentioned provisions and proceeded
to allow it wrongly.
19) Due to these two jurisdictional errors
committed by the first Appellate Court causing
prejudice to the appellants herein while opposing
the first appeals, the judgment rendered by the first
Appellate Court, in our opinion, cannot be
sustained legally on merits.
20) The High Court also while deciding the second
appeals failed to notice these two jurisdictional legal
errors which went to the root of the case. It is for
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this reason, the impugned order also cannot be
legally sustained calling interference by this Court.
21) In the light of the foregoing discussion and
having regard to the totality of the facts of the case
and to enable the parties to have full and fair trial,
we consider it proper to take recourse to the powers
under Order 41 Rule 23A of the Code and
accordingly set aside the judgment and decree of
the first Appellate Court to the extent it allows the
respondents’ appeals on merit but at the same time
uphold that part of the order which has allowed
CMP No.1559/1993 filed by the plaintiffs for
adducing additional evidence and remand the cases
to the Trial Court for retrial of all the four civil
suits on merits afresh.
22) All parties to the four civil suits (appellants
and the respondents) are allowed to amend their
respective pleadings, if they wish to do so. The
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appellants are allowed to adduce additional
evidence in rebuttal. Let the additional evidence
taken on record by the first Appellate Court be
remitted to the Trial Court for its proving in
evidence in accordance with law. The Trial Court, if
considered appropriate, can also frame additional
issues. Parties will be allowed to adduce their oral
and documentary evidence in addition to one
already adduced.
23) The Trial Court will then decide the suits
afresh on merits on the basis of entire evidence
without being influenced by any of the previous
orders/judgments rendered in this case including
this order because having formed an opinion to
remand the case for retrial, we have refrained from
entering into the merits of the issues. Let the trial
be over within one year.
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24) In view of the foregoing discussion the appeals
succeed and are allowed. Impugned order is set
aside.
…...……..................................J.
[ABHAY MANOHAR SAPRE]
………...................................J.
[S. ABDUL NAZEER]
New Delhi;
August 10, 2018
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