UTTARADI MUTT versus RAGHAVENDRA SWAMY MUTT on 26 September 2018

[2018] 12 S.C.R. 208

SUPREME COURT REPORTS

[2018] 12 S.C.R.

UTTARADI MUTT

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v.

RAGHAVENDRA SWAMY MUTT

(Civil Appeal No. 9333 of 2018)

BSEPTEMBER 26, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR AND

DR. D.Y. CHANDRACHUD, JJ.]

Code of Civil Procedure, 1908 – Or. XLI, r.27 – Applicationunder, allowed – Propriety of – Suit for injunction filed by theCappellant-plaintiff against respondent-defendant – Suit dismissedby trial court – Appellant filed first appeal wherein respondent filedapplications u/Or. XLI, r.27 to produce additional evidence – FirstAppellate Court (FAC) dismissed the said applications, while allowedthe appeal filed by the appellant – In second appeal, High CourtDinter alia allowed the applications filed by the respondent – Held: Inthe present case, the High Court opined that the documents proposedto be produced by the respondent were official records and publicdocuments which, if proved, could enable the Court to pronouncethe judgment and do complete justice to the parties – Said view ofHigh Court is impregnable.

E

Code of Civil Procedure, 1908 – Or. XLI, rr.23, 23-A and25-29 – Suit for injunction filed by the appellant against respondent– Suit dismissed by trial court – Appellant filed first appeal whereinrespondent filed applications u/Or. XLI, r.27 to produce additionalevidence – First Appellate Court (FAC) allowed the appeal filed byFthe appellant – In second appeal filed by the respondent, High Courtinter alia relegated the parties before the trial court for re-decidingthe suit – Propriety of – Held: While exercising discretion u/Or. XLI,r.23-A for remanding the cases, the Appellate Court is duty boundto keep in mind Or.XLI , rr.25 and 26 – There are two optionsGavailable to the Appellate Court – First, it may record the evidenceitself by permitting the parties to produce evidence before it as perOr. XLI,r. 27 or direct the Court from whose decree the appeal underconsideration has arisen, to do so – In the present case, the HighCourt did not record any special reasons for relegating the partiesbefore the “trial court” to re-decide the suit – Only reason, whichH

weighed with the High Court was that it was necessary to find outthe truth, as it is the duty of the Court – That could be done even bydirecting the FAC to record evidence, which it was competent to dowhile hearing the first appeal – For that, as per Or. XLI, r.25, theHigh Court could have framed the issues and referred them foradjudication before the FAC, against whose decree the secondappeal was preferred before the High Court – Considering thechequered history of the present litigation, the fact that the suit wasfiled in the year 1992, High Court directed to frame the points onwhich additional evidence could be adduced by the respondent andcall upon the FAC to record additional evidence – Impugnedjudgment of the High Court set aside to the extent it relegated theparties before the trial court.

Code of Civil Procedure, 1908 – Or.XLI, r.27 – Applicationunder, to produce additional evidence, allowed – Implication of –Suit for injunction filed by the appellant against respondent – Suitdismissed by trial court – Appellant filed first appeal whereinrespondent filed applications u/Or. XLI, r.27 to produce additionalevidence, dismissed – High Court inter alia allowed the applicationsfiled by the respondent – Plea of appellant inter alia that even ifthere was sufficient ground for allowing the applications filed bythe respondent for production of additional evidence, thegenuineness and the contents of the additional documents wouldhave to be proved by the party placing reliance – Held: High Courtmade it clear that the fact that the applications are allowed per se isnot to give any direction to straightaway exhibit the additionaldocuments, but that it could be exhibited subject to proof –Documents will have to be proved in accordance with law.

Disposing of the appeal, the Court

Conclusion

Disposing of the appeal, the Court

HELD: 1.1 In the present case, the High Court opinedthat the documents proposed to be produced by the respondentwere official records and public documents which, if proved, couldenable the Appellate Court to pronounce the judgment and dofull, complete and effectual justice to the parties. In other words,the proposed additional evidence was required by the Court toanswer the subject matter and in particular, to pronounce thejudgment on material issues. On analysing the reasons recordedby the First Appellate Court for rejecting the three applications AB

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Afiled by the respondent under Order XLI Rule 27 of CPC andjuxtaposing the same with the reasons recorded by the High Courtfor allowing those applications, it is clear that the conclusionreached by the High Court on this count is impregnable.[Paras 9, 10] [217-G-H; 218-A-B]

B1.2 The High Court made it amply clear that the fact thatthe applications are allowed per se is not to give any direction tostraightaway exhibit the additional documents, but that it couldbe exhibited subject to proof. The High Court has unambiguouslyobserved that the documents will have to be proved in accordancewith law. By allowing the three applications filed by the respondentCunder Order XLI Rule 27 of CPC, it would not follow that theadditional documents/additional evidence can be straightawayexhibited rather, the respondent would have to not only provethe existence, authenticity and genuineness of the said documentsbut also the contents thereof, as may be required by law.D[Para 11] [218-D-E]

1.3 Under Rule 23 of CPC, the Appellate Court couldremand the case before it, where the Court from whose decreean appeal was preferred had disposed of the suit upon a preliminarypoint and that decree was reversed in appeal. Rule 23-A dealsEwith other (residuary) category of cases to be remanded by theAppellate Court in an appeal against a decree which has beendisposed of otherwise than on a preliminary point. Whileexercising such discretion, the Appellate Court is duty bound tokeep in mind Rules 25 and 26 of Order XLI of the CPC. In otherwords, there are two options available to the Appellate Court.FFirst, it may record the evidence itself by permitting the partiesto produce evidence before it as per Rule 27 of Order XLI ordirect the Court from whose decree the appeal underconsideration has arisen, to do so. In the present case, the HighCourt has not recorded any special reasons as to why the partiesGshould be relegated before the “trial Court” to re-decide thesuit. The only reason, which, presumably, weighed with the HighCourt, was that it was necessary to find out the truth, as it is theduty of the Court. That could be done even by directing the FirstAppellate Court to record evidence, which it was competent to H

do while hearing the first appeal, had it allowed the applicationsunder Order XLI Rule 27 of CPC by the respondent. For that, asper Rule 25 of Order XLI of the CPC, the High Court could haveframed the issues and referred them for adjudication before theFirst Appellate Court, against whose decree the second appealwas preferred before the High Court. The High Court could haveissued directions to the First Appellate Court to determine anyquestion of fact including the existence and genuineness of theadditional evidence or for that matter, whether the contents ofthe said documents had been duly proved by the party relyingthereon. After recording the evidence in support of such relevantmatters as the High Court may have directed, the First AppellateCourt could proceed to try such issues and return the evidenceto the High Court together with its findings thereon within theprescribed time. Such a course was permissible in terms of Rule28 of Order XLI of CPC. [Paras 14, 15 and 17] [219-F-G; 220-E;222-C-E]

1.4 Considering the chequered history of this litigation andthe fact that the suit was filed in the year 1992, and that the writpetition against the order passed by the Superintendent of LandRecords is stated to be pending before the High Court, the HighCourt is directed to frame the points on which additional evidencecould be adduced by the respondent and call upon the FirstAppellate Court to record additional evidence and also considerthe question of genuineness and authenticity of the additionalevidence, including as to whether the contents thereof have beenproved by the party relying thereon, and thereafter, to return theevidence to the High Court. The High Court may then considerthe Second Appeal on the substantial questions of law alreadyframed or such other substantial questions of law that may arisefor its consideration. Such a course would meet the ends ofjustice. The impugned judgment and order of the High Court isset aside in part, to the extent that it relegated the parties beforethe trial Court for re-deciding the suit. [Paras 18, 19] [223-C-F]

Union of India v. Ibrahim Uddin and Anr.(2012) 8 SCC148 : [2012] 8 SCR 35 – relied on.

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H.P. Vedavyasachar v.. Shivashankara and Anr.(2009) 8 SCC 231 : [2009] 12 SCR 268 which has alsoconsidered the decision in Shanti Devi v. Daropti Devi(2006) 13 SCC 775 : [2006] 10 Suppl. SCR 1050 –

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referred to.

BCase Law Reference

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9333of 2018.

From the Judgment and Order dated 14.11.2017 of the High Courtof Karnataka at Bengaluru in R.S.A. No. 100446 of 2015.

Mukul Rohatgi, Ranjit Kumar, J. V. Kolar, Sr. Advs., Saurabh S.DSinha, Rahul Pratap, Advs. for the Appellant.

Vikas Singh, Huzefa Ahmadi, Sr. Advs., Rohan Sharma, VishnuSharma, Ms. Anupama Sharma, Ms. Rangoli Seth, Ms. Sonali Negi,Advs. for the Respondent.

E The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1.This appeal arises from thejudgment and decree dated 14[th ]November, 2017 passed by the HighCourt of Karnataka at Bangalore in R.S.A. No.100446 of 2015, wherebythe High Court was pleased to set aside the judgment and decree passedFby the First Appellate Court and also that of the trial Court and relegatedthe parties before the trial Court, by allowing three applications filed bythe respondent/defendant under Order XLI Rule 27 of the Civil ProcedureCode, 1908 (for short, “CPC”). The High Court directed the trial Courtto decide the suit afresh by giving its findings in light of the additionalevidence adduced. The operative part of the order passed by the HighGCourt reads thus:

“25. Therefore, this Court cannot decide the substantial questionsof law on which the said present second appeal was admitted on13.04.2016 at this stage and the matter deserves to go back to the H

trial Court by allowing the three applications filed under Order 41Rule 27 of the CPC. All the three applications filed by theDefendant/Appellant-RSM under Order 41 Rule 27 of the CPCtherefore, are allowed and setting aside the order dated 22.04.2015passed by the FAC in its entirety, because even otherwise itappears to be self contradictory and vague partial injunctiongranted by FAC, the matter is restored back to the learned trialCourt to allow the said additional evidences to be placed on recordand allow the parties to prove and disprove the same inaccordance with law and then re-decide the suit giving itsfindings in the light of such additional evidence.

In view of the long lapse of time, the trial Court is requested toexpedite the matter and decide the suit again expeditiously.

The present appeal is accordingly disposed of. No costs.All I.As. are also disposed of.”

2. The central issue in this appeal is whether the High Court wasjustified in allowing the three applications filed by the respondent/defendant under Order XLI Rule 27 before the First Appellate Court.Furthermore, even if there was just and sufficient reason for allowingthe three applications, was the High Court justified in relegating theparties before the trial Court and directing the trial Court to re-decidethe suit by giving its findings in light of the additional evidence?

3. This case has a chequered history. Shorn of unnecessarydetails we propose to refer only to the facts relevant to decide thisappeal. In the first appeal filed by the appellant/plaintiff before thePrincipal Senior Civil Judge & Chief Judicial Magistrate, Dharwadbearing R.A. No.124 of 2014 (Original R.A. No.14 of 2011 before theCourt of Senior Civil Judge, Gangawathi) against the dismissal of thesuit by the Additional Civil Judge, Gangawathi vide judgment and decreedated 18[th] June, 2011 in O.S. No.74 of 2010 (Original O.S. No.193 of1992), three applications under Order XLI Rule 27 for permission toproduce additional evidence came to be filed by the respondent/defendant. The First Appellate Court considered the stated applicationsalong with the first appeal preferred by the appellant/plaintiff. The FirstAppellate Court was pleased to dismiss the said applications preferredby the respondent/defendant; and allowed the appeal filed by the A

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Aappellant/plaintiff on the basis of the evidence already brought on recordbefore the trial Court. The suit filed by the appellant was decreed in partby the First Appellate Court. The operative order passed by the FirstAppellate Court dated 22[nd] April, 2015, reads thus:

“ORDER

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The Application filed by the Appellant under Order 41 Rule 27R/w Section 151 of the Code of Civil Procedure is dismissed.

The Application filed by the Appellant filed by the Appellantunder Order 14 Rule 5 R/w Section 151 of the Code of CivilProcedure is dismissed.

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The Application filed by the Respondent under Order 14 Rule 5R/w Section 151 of the Code of Civil Procedure is dismissed.

The Applications filed by the Respondent under Order 41 Rule 27R/w Section 151 of the Code of Civil Procedure are dismissed.

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The Application filed by the Respondent under Section 151 of theCode of Civil Procedure seeking survey of Sy.No.192 of AnegundiVillage is dismissed.

The Application filed by the Respondent under Section 340 of theCode of Criminal Procedure is dismissed.

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The Appeal filed by the Appellant under Order 41 Rule 1 of theCode of Civil Procedure is allowed in part. The Judgment andDecree dated 18-06-2011 passed by the Court of the Addl. CivilJudge, Gangavathi in O.S.No.74/2010 are set-aside.

The Suit of the Plaintiff is decreed in part. Subject to the right, ifFany, of the Defendant Mutt to perform Aradhanas and Poojas ofthe Vrindavanas in the Suit property, the Defendant is restrainedby way of Perpetual Injunction from interfering with the PlaintiffMutt’s possession and enjoyment of the Suit property. It is herebyclarified that the above said raider shall not be construed asGdeclaring the right of the Defendant Mutt to perform Aradhanasand Poojas.

Costs are made easy.

The Office is directed to transmit a copy of the Judgment andDecree to the trial Court along with LCR.”

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4. Aggrieved by the aforesaid decision, the respondent/defendantpreferred a second appeal before the High Court, being R.S.A. No.100446of 2015.

5. As aforesaid, for the nature of the order that we propose topass and the issues to be answered in the present appeal, suffice it toobserve that the second appeal, being R.S.A. No.100446 of 2015 filedby the respondent/defendant before the High Court of Karnataka atBangalore, was finally decided vide impugned judgment dated14[th] November, 2017. The High Court reversed the opinion of the FirstAppellate Court including the rejection of stated three applications filedby the respondent/defendant under Order XLI Rule 27 of CPC. TheHigh Court instead allowed those applications and relegated the partiesbefore the trial Court, as noted in the operative part of the impugnedjudgment extracted above.

6. As regards the first issue as to whether the High Court hasrecorded sufficient reasons for allowing the three applications forpermission to produce additional evidence filed by the respondent/defendant under Order XLI Rule 27 of CPC before the First AppellateCourt, the High Court has opined that the additional evidence sought tobe brought on record, subject to proof, by the respondent/defendant,definitely, could have a material bearing on the issues involved in the suitand determining the rights of the appellant/ plaintiff to claim injunctionagainst the respondent/defendant on the basis of the total land being intheir ownership or possession (whether it was 14 Acres 7 Guntas or 27Acres 30 Guntas). The High Court was of the view that it could changethe entire basis of the rights of the respective parties and therefore suchadditional evidence sought to be produced by the respondent/defendantought not to be shut out. The High Court noted that the First AppellateCourt delivered a contrived judgment without analysing such additionalevidence and otherwise also, it was a substantial cause for reaching justconclusions and for correct evaluation of the rights of the respectiveparties, satisfying the parameters of Order XLI Rule 27 of CPC. Tobuttress this conclusion, the High Court relied on the dictum inparagraph 49 of the decision of this Court in Union of India Vs. IbrahimUddin and Anr.[1]. What essentially weighed with the High Court forshowing indulgence to the respondent/defendant can be discerned from A

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Athe observations in paragraph 17 of the impugned judgment which readthus:

“17. Prima facie, this Court finds that the additional evidencemostly in the form of Government letters and Orders could havea major impact on the issues involved before the Courts belowand therefore deserved to be considered by the Court after beingled and proved in accordance with law by concerned party. Merelybecause the order dated 07.09.1974 passed by Superintendent ofLand Records became the subject matter of order by the KATand even this Court, it does not prevent the trial Court or the FACto allow such additional evidence taken on record and allow it tobe proved in accordance with law and then consider and weighsuch evidence and then decide the issues in accordance with law.Most of these documents were Government communication andOrders and were not in the control and possession of the defen-dant-RSM and defendant-RSM being not a party before KAT inthe appeal filed by Vyasraja Mutt, the FAC should have allowedthese Additional evidence which could have helped it incompleting the quest for truth and meet the ends of justice anddeliver a correct judgment. The failure to do so has resulted inserious miscarriage of justice. Without the title and peacefulpossession of the entire land of 27 Acres and 30 Guntas provedby the plaintiff/respondent-UM, in the face of such contradictingAdditional Evidence, the self contradictory and vague injunctiongranted by FAC cannot be sustained.”

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For that reason, the High Court reversed the view taken by theFirst Appellate Court on the three applications preferred by theFrespondent/defendant under Order XLI Rule 27 of CPC and deemed itappropriate to relegate the parties to the trial Court.

7. According to the appellant, the High Court ought not to haveinterfered with the discretion exercised by the First Appellate Court indismissing the three applications for permission to produce additionalGevidence preferred by the respondent/defendant. Furthermore, thereasons weighed with the High Court, in no case, satisfied the test forproduction of additional evidence predicated in Order XLI Rule 27 ofCPC.

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8. This objection need not detain us as we are of the consideredopinion that the First Appellate Court would have been within itsjurisdiction to permit the party to the proceedings to produce additionalevidence before it for full, complete and effectual adjudication of theproceedings. The purport of Order XLI Rule 27 of CPC has beenconsidered by this Court in Union of India (supra). The Court advertedto the exposition made in earlier decisions of the Court from paragraphs36 to 46 and summed up the proposition in paragraphs 47 and 48 asunder:

“47. Where the additional evidence sought to be adduced removesthe cloud of doubt over the case and the evidence has a directand important bearing on the main issue in the suit and interest ofjustice clearly renders it imperative that it may be allowed to bepermitted on record, such application may be allowed.

48. To sum up on the issue, it may be held that an application fortaking additional evidence on record at a belated stage cannot be filed asa matter of right. The court can consider such an application withcircumspection, provided it is covered under either of the prerequisiteconditions incorporated in the statutory provisions itself. The discretionis to be exercised by the court judicially taking into consideration therelevance of the document in respect of the issues involved in the caseand the circumstances under which such an evidence could not be led inthe court below and as to whether the applicant had prosecuted his casebefore the court below diligently and as to whether such evidence isrequired to pronounce the judgment by the appellate court. In case thecourt comes to the conclusion that the application filed comes within thefour corners of the statutory provisions itself, the evidence may be takenon record, however, the court must record reasons as on what basissuch an application has been allowed. However, the application shouldnot be moved at a belated stage.”

9. In the present case, the High Court has opined that thedocuments proposed to be produced by the respondent/defendant wereofficial records and public documents which, if proved, could enable theAppellate Court to pronounce the judgment and do full, complete andeffectual justice to the parties. In other words, the proposed additionalevidence was required by the Court to answer the subject matter and inparticular, to pronounce the judgment on material issues.

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A10.In paragraphs 49-52 of the same reported decision of Unionof India (supra), the Court dealt with the question of stage ofconsideration of applications under Order XLI Rule 27 of CPC, inreference to earlier decisions of this Court. Be that as it may, on analyisingthe reasons recorded by the First Appellate Court for rejecting the threeapplications filed by the respondent/defendant under Order XLI Rule 27Bof CPC and juxtaposing the same with the reasons recorded by the HighCourt for allowing those applications, in our opinion, the conclusion reachedby the High Court on this count is impregnable.

11. That takes us to the second contention raised by the appellantthat even if there was sufficient ground for allowing the statedCapplications filed by the respondent/defendant for production ofadditional evidence, the genuineness and the contents of the additionaldocuments would have to be proved by the party placing reliance thereon.As regards this plea, we find that the High Court has made it amplyclear that the fact that the applications are allowed per se is not to give Dany direction to straightaway exhibit the additional documents, but that itcould be exhibited subject to proof. The High Court has unambiguouslyobserved that the documents will have to be proved in accordance withlaw. We make it amply clear that by allowing the three applications filedby the respondent/defendant under Order XLI Rule 27 of CPC, it would not follow that the additional documents/additional evidence can beEstraightaway exhibited rather, the respondent would have to not onlyprove the existence, authenticity and genuineness of the said documentsbut also the contents thereof, as may be required by law.

12. The further grievance of the appellant, however, is that theHigh Court, in any case, ought not to have relegated the parties beforeFthe trial Court with a direction to the trial Court to re-decide the suit.The respondent, however, would rely on the provisions of the amendedRule 23 of the CPC “as applicable to the State of Karnataka”. Thesame reads thus:

“23. Remand of case by Appellate Court:- “Where the CourtGfrom whose decree an appeal is preferred has disposed of thesuit upon a preliminary point and the decree is reversed in appeal,or where the Appellate Court in reversing or setting asidethe decree under appeal considers it necessary in theinterests of justice to remand the case, the Appellate Court H

may by order remand the case, and may further direct what issueor issues shall be tried in the case so remanded and whether anyfurther evidence shall or shall not be taken after remand, andshall send a copy of its judgment or order to the Court from whosedecree the appeal is preferred, with directions to re-admit the suitunder its original number in the register of civil suits, andproceed to determine the suit; the evidence, if any, recordedduring the original trial shall subject to all just exceptions, beevidence during the trial after remand.”

(emphasis supplied)

13. Indeed, the provision as applicable to the State of Karnatakais not limited to the decree disposing of the suit on a preliminary point butalso where the Appellate Court in reversing or setting aside the decreeunder appeal, considers it necessary, in the interest of justice, to remandthe case. Notably, the Karnataka amendment has been introduced videthe Karnataka Gazette entry dated 5[th] November, 1959. The effect ofthat provision is reinforced by Central Amendment Act 104 of 1976which introduced Rule 23-A. The said Rule 23-A reads thus:

“23-A. Remand in other cases.- Where the Court from whosedecree an appeal is preferred has disposed of the case otherwisethan on a preliminary point, and the decree is reversed in appealand a re-trial is considered necessary, the Appellate Court shallhave the same powers as it has under rule 23.”

14. We say so because under Rule 23 of CPC, the AppellateCourt could remand the case before it where the Court from whosedecree an appeal was preferred, had disposed of the suit upon apreliminary point and that decree was reversed in appeal. Rule 23-Adeals with other (residuary) category of cases to be remanded by theAppellate Court in an appeal against a decree which has been disposedof otherwise than on a preliminary point. While exercising suchdiscretion, the Appellate Court is duty bound to keep in mind Rules 25and 26 of Order XLI of the CPC, which read thus:

“25. Where Appellate Court may frame issues and referthem for trial to Court whose decree appealed from.- Wherethe Court from whose decree the appeal is preferred has omittedto frame or try any issue, or to determine any question of fact, AB

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Awhich appears to the Appellate Court essential to the rightdecision of the suit upon the merits, the Appellate Court may, ifnecessary, frame issues, and refer the same for trial to the Courtfrom whose decree the appeal is preferred and in such case shalldirect such Court to take the additional evidence required; BAnd such Court shall proceed to try such issues, and shall returnthe evidence to the Appellate Court together with its findings thereonand the reasons therefor [within such time as may be fixed by theAppellate Court or extended by it from time to time].”

“26. findings and evidence to be put on record –CObjections to finding- (1) Such evidence and findings shall formpart of the record in the suit; and either party may, within a time tobe fixed by the Appellate Court, present a memorandum ofobjections to any finding.

(2) Determination of appeal.- After the expiration of the periodDso fixed for presenting such memorandum the Appellate Courtshall proceed to determine the appeal.”

15. In other words, there are two options available to theAppellate Court. First, it may record the evidence itself bypermitting the parties to produce evidence before it as per Rule 27 ofEOrder XLI or direct the Court from whose decree the appeal underconsideration has arisen, to do so.

16. The appellants have placed reliance on H.P. VedavyasacharVs. Shivashankara and Anr.[2], which has also considered the decisionin Shanti Devi Vs. Daropti Devi[3]. In the case of H.P. VedavyasacharF(supra),it was specifically contended that no case was made out toadduce additional evidence and in that event, the entire case could nothave been remanded to the trial Court for fresh disposal after recordingfresh evidence as it was not a case envisaged under Order XLI Rule 23of CPC. This contention has been considered in paragraphs 7 to 10 ofthe said decision, in the following words:G

“7. However, so far as the second contention raised by the learnedcounsel for the appellant is concerned, in our opinion, the samehas substance. When an application for adducing additionalevidence is allowed the appellate court has two options open 2(2009) 8 SCC 231H3(2006) 13 SCC 775

to it. It may record the evidence itself or it may direct thetrial court to do so.

8. Order 41 Rule 28 CPC reads as under:

“28. Mode of taking additional evidence.—Wherever additionalevidence is allowed to be produced, the appellate court may eithertake such evidence, or direct the Court from whose decree theappeal is preferred, or any other subordinate court, to take suchevidence 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 todispose of the suit after taking evidence. Such an order ofremand could be only in terms of Order 41 Rule 23, Order41 Rule 23-A or Order 41 Rule 25 of the Code. None of thesaid provisions have any application in the instant case.

9. This Court in Shanti Devi v. Daropti Devi1has held as under:(SCC p. 778, para 13)

“13. But the same by itself could not be a ground forremitting the entire suit to the learned trial Judge uponsetting aside the decree of the learned trial court. Thepower of remand vests in the appellate court either in termsof Order 41 Rules 23 and 23-A or Order 41 Rule 25 of theCode of Civil Procedure. Issue 4 was held to have been wronglyframed. Onus of proof was also wrongly placed and only in thatview of the matter the High Court thought it fit to remit it to thelearned trial Judge permitting the parties to adduce fresh evidence.It, therefore, required the learned trial Judge to determine aquestion of fact, which according to it was essential, upon reframingthe issue.”

10. None of the aforementioned provisions were available to theHigh Court. We, therefore, in modification of the order passed bythe High Court direct as under:

(i) The learned trial court upon recording the evidence as directedby the High Court shall transmit the records to the first appellatecourt with a copy of its report annexed thereto.

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A(ii) Such an exercise by the learned trial court must be completedwithin a period of four weeks from the date of communication ofthis order.

(iii) The first appellate court must dispose of the first appeal onreceipt of the said order as also the evidence as adduced asBexpeditiously as possible and not later than eight weeks from thedate of receipt of the said report.

We are passing the order keeping in view the fact that the appellantis said to have been dispossessed as far back as in 1993.”

(emphasis supplied)

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17. In the present case, the High Court has not recorded anyspecial reasons as to why the parties should be relegated before the“trial Court” to re-decide the suit. The only reason, which, presumably,weighed with the High Court, is that it was necessary to find out thetruth, as it is the duty of the Court. That could be done even by directingDthe First Appellate Court to record evidence, which it was competent todo while hearing the first appeal, had it allowed the applications underOrder XLI Rule 27 of CPC by the respondent/defendant. For that, asper Rule 25 of Order XLI of the CPC, the High Court could have framedthe issues and referred them for adjudication before the First AppellateECourt, against whose decree the second appeal was preferred beforethe High Court. It may be useful to advert to Rules 28 & 29 of OrderXLI of C.P.C. The same read thus:

“28. Mode of taking additional evidence.- Whereveradditional evidence is allowed to be produced, the Appellate CourtFmay either take such evidence, or direct the Court from whosedecree the appeal is preferred, or any other subordinate Court, totake such evidence and to send it when taken to the AppellateCourt.”

“29. Points to be defined and recorded.- Whereadditional evidence is directed or allowed to be taken, theGAppellate Court shall specify the points to which the evidence isto be confined, and record on its proceedings the points sospecified.”

The High Court could have issued directions to the FirstAppellate Court to determine any question of fact including theexistence and genuineness of the additional evidence or for that matter,whether the contents of the said documents had been duly proved by theparty relying thereon. After recording the evidence in support of suchrelevant matters as the High Court may have directed, the FirstAppellate Court could proceed to try such issues and return theevidence to the High Court together with its findings thereon within theprescribed time. Such a course was permissible in terms of Rule 28 ofOrder XLI of CPC. And on receipt of the report, the High Court couldthen consider the substantial questions of law already framed whileadmitting the second appeal and finally decide the same on all issues.

18. Considering the chequered history of this litigation and thefact that the suit was filed in the year 1992, and that the writ petitionagainst the order passed by the Superintendent of Land Records is statedto be pending before the High Court, it would be appropriate that theHigh Court frames the points on which additional evidence could beadduced by the respondent/defendant and call upon the First AppellateCourt to record additional evidence and also consider the question ofgenuineness and authenticity of the additional evidence, including as towhether the contents thereof have been proved by the party relyingthereon, and thereafter, to return the evidence to the High Courttogether with its findings thereon and reasons thereof within theprescribed time. Such a course would meet the ends of justice.

19. Accordingly, we set aside the impugned judgment and orderof the of the High Court in part, to the extent that it has relegated theparties before the trial Court for re-deciding the suit after allowing therespondent/defendant to produce additional evidence in accordance withlaw. Instead, the appeal is restored to the file of the High Court to itsoriginal number. The High Court shall frame points on which theadditional evidence is allowed to be produced and direct the FirstAppellate Court to take the additional evidence on record inaccordance with law and then return the evidence to the High Courttogether with its findings thereon and the reasons thereof, within theprescribed time. Such directions be issued by the High Courtexpeditiously, preferably within two months from today. On receipt of A

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Athe said report from the First Appellate Court, the High Court may thenconsider the Second Appeal on the substantial questions of law alreadyframed or such other substantial questions of law that may arise for itsconsideration.

20. The appeal and the accompanying application are disposed ofBin the aforementioned terms with no order as to costs.

Divya Pandey

Appeal disposed of.

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