THE CORPORATION OF MADRAS & ANR. versus M. PARTHASARATHY & ORS. on 10 August 2018

SUPREME COURT REPORTS[2018] 10 S.C.R. 900

[2018] 10 S.C.R.

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THE CORPORATION OF MADRAS & ANR.

v.

M. PARTHASARATHY & ORS.

(Civil Appeal No.3033 of 2006)

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AUGUST 10, 2018

[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]

Code of Civil Procedure, 1908 – O.41, r.27, O.41, r.25 andO.41, r.23-A – Additional document – Respondents-plaintiffs claimedto be the owners of the suit land – They filed civil suits for permanentCinjunction against the appellants-defendants – Civil suits weredismissed by the trial Court – Aggrieved, respondents-plaintiffs filedfirst appeals along with an application u/O.41, r.27 C.P.C. to fileadditional documents – First Appellate Court not only allowed theapplication u/O.41, r.27 C.P.C. but further placed reliance on theDadditional evidence tendered by the respondents-plaintiffs anddecreed all the civil suits in favour of them – On appeal, held:Judgment of the First Appellate Court unsustainable – First AppellateCourt committed jurisdictional errors – It took into considerationthe additional piece of evidence while deciding the appeals on meritswithout affording any opportunity to the appellants-defendants toEfile any rebuttal evidence to counter the additional evidenceadduced by the respondents-plaintiffs – Furthermore, after allowingapplication u/O.41, r.27 C.P.C. the First Appellate Court could haveeither set aside the entire judgment/decree of the trial Court u/O.41,r.23-A C.P.C. and remanded the case to the trial Court for re-trialFor it could have invoked powers u/O.41, r.25 C.P.C. by retainingthe appeals to itself and referring the case to the trial Court on alimited issue of additional evidence – These jurisdictional errorscaused prejudice to the appellants while opposing first appeals –Thus, matter remitted to the trial Court u/O.41, r.23-A C.P.C. for re-trial of all civil suits on merits afresh – Jurisdiction.

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Allowing the appeals, the Court

HELD: 1.1 The first Appellate Court committed twojurisdictional errors in allowing the appeals. First, it took intoconsideration the additional piece of evidence while deciding theappeals on merits without affording any opportunity to theHappellants herein (who were respondents in the first appeals) to file any rebuttal evidence to counter the additional evidenceadduced by the respondents (appellants before the first AppellateCourt). This caused prejudice to the appellants herein becausethey suffered the adverse order from the Appellate Court on thebasis of additional evidence adduced by the respondents for thefirst time in appeal against them.[Paras 14-15] [903-H; 904-A-B]

1.2 The Second error was of a procedure which the firstAppellate Court failed to resort in disposing of the appeals. Thisalso involved a question of jurisdiction. The first Appellate Courthad two options, first it could have either set aside the entirejudgment/decree of the Trial Court by taking recourse to theprovisions of Order 41 Rule 23-A of the Code and remanded thecase to the Trial Court for re-trial in the suits so as to enable theparties to adduce oral evidence to prove the additional evidencein accordance with law or second, it had an option to invoke powersunder Order 41 Rule 25 of the Code by retaining the appeals toitself and remitting the case to the Trial Court for limited trial onparticular issues arising in the case in the light of additionalevidence which was taken on record and invite findings of theTrial Court on such limited issues to enable the first AppellateCourt to decide the appeals on merits. [Paras 16-17] [904-D-F]

Land Acquisition Officer, City Improvement Trust Boardv. H. Narayanaiah & Ors. (1976) 4 SCC 9: [1977]1 SCR 178; Shalimar Chemical Works Ltd. v. SurendraOil & Dal Mills (Refineries) & Ors. (2010) 8 SCC 423:[2010] 10 SCR 703 ; Akhilesh Singh v. Lal Babu Singh& Ors. (2018) 4 SCC 759 – referred to.

Case Law Referencereferred toPara 15referred toPara 15referred toPara 15

[1977] 1 SCR 178[2010] 10 SCR 703 (2018) 4 SCC 759

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3033of 2006

From the Judgment and Order dated 09.10.2002 of the High Courtof Judicature at Madras in Second Appeal Nos. 126 to 129 of 1997

WITH

C.A. No.8185 of 2018

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AR. Basant, Sr. Adv., M. Yogesh Kanna, Mrs. Sujatha Bagadhi,Partha Sarathi, Ms. Aruna Prakash, Praksh Gogalani, M/s. ArputhamAruna & Co., R. Chandrachud, Advs. for the appearing parties.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted in S.L.P.(c)BNo. 21796/2018 (D.No.15579/2017).

2. These appeals are directed against the final judgment and orderdated 09.10.2002 passed by the High Court of Madras in Second AppealNos. 126 to 129 of 1997 and Writ Petition No. 13097 of 1993 wherebythe High Court dismissed the second appeals filed by the appellantsCherein and allowed the writ petition filed by the respondents herein.

3. In order to appreciate the issue arising in these appeals, fewrelevant facts need to be mentioned hereinbelow.

4. The appellants are the defendants whereas the respondentsDare the plaintiffs in the civil suits out of which these appeals arise.

5. The dispute relates to a land measuring about 3600 sq. ft. inBlock 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 landEfiled four civil suits bearing O.S. Nos.2207 of 1992, 2345 of 1992, 2346of 1992 and 2347 of 1992 against the appellants (defendants) in the CityCivil Court at Chennai for permanent injunction.

7. The appellants on being served denied the claims set up bythe respondents by filing written statement. Since all the four suits wereFbetween the same parties and relate to one piece of land though part ofdifferent four sale deeds and further there was no multiplicity of causesof action, the Trial Judge clubbed all the four suits for their analogousdisposal. The Trial Court accordingly framed common issues on the basisof the pleadings. Parties adduced their common evidence. The TrialCourt, by a common judgment/decree dated 24.09.1993, dismissed allGthe four suits filed by the respondents with costs.

8. The plaintiffs (respondents herein) felt aggrieved filed firstappeals being A.S. Nos.338 to 341 of 1993 in the Court of 8[th] AdditionalDistrict Judge, Chennai. In the appeals, the plaintiffs filed an applicationunder Order 41 Rule 27 of the Civil Procedure Code, 1908 (for shortH

“the Code”) and sought permission to adduce additional evidence insupport of their case (CMP No.1559/93).

9. By judgment/decree dated 17.12.1993, the Additional DistrictJudge allowed the application filed under Order 41 Rule 27 of the Codethereby permitting the plaintiffs (appellants before the first AppellateCourt) to file the additional evidence. The Appellate Court then exhibitedthe additional evidence as Exs. P-16 to P-20and placing reliance onthe additional evidence tendered by the plaintiffs for the first time at theappellate stage, allowed the appeals, set aside the judgment and decreeof the Trial Court and decreed all the four civil suits filed by therespondents against the appellants.

10. The defendants (appellants herein) felt aggrieved and filedsecond 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 appealsfiled by the defendants (appellants herein) and allowed the writ petitionfiled by the respondents herein as a consequence of dismissal of theappellants’ second appeals and affirmed the judgment/decree passed bythe first Appellate Court. It is against this order of the High Court, thedefendants felt aggrieved and filed the present appeals by way of specialleave in this Court.

11. Heard Mr. R. Basant, learned senior counsel for the appellantsand Ms. Aruna Prakash, learned counsel for the respondents.

12. Having heard the learned counsel for the parties and on perusalof the written submissions filed by the learned counsel for the respondents,we are of the considered view that these appeals deserve to be allowedin part on a short ground as indicated infra.

13. It is an admitted fact that the respondents (plaintiffs) had filedan application under Order 41 Rule 27 of the Code in their first appealsbefore the first Appellate Court (CMP No.1559/93) praying therein forproduction of additional evidence in appeals. It is also an admitted factthat this application was allowed and the additional evidence was notonly taken on record but also relied on by the Appellate Court asExs. P-16 to P-20for allowing the appeals filed by the respondentswhich, in consequence, resulted in decreeing all the four civil suits.

14. In our considered opinion, the first Appellate Court committedtwo jurisdictional errors in allowing the appeals.

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A15. First, it took into consideration the additional piece of evidencewhile deciding the appeals on merits without affording any opportunityto the appellants herein (who were respondents in the first appeals) tofile any rebuttal evidence to counter the additional evidence adduced bythe respondents (appellants before the first Appellate Court). This causedprejudice to the appellants herein because they suffered the adverseBorder from the Appellate Court on the basis of additional evidence adducedby the respondents for the first time in appeal against them. (See LandAcquisition Officer, City Improvement Trust Board vs. H.Narayanaiah & Ors., (1976) 4 SCC 9, Shalimar Chemical WorksLtd. vs. Surendra Oil & Dal Mills (Refineries) & Ors., (2010) 8CSCC 423 and Akhilesh Singh vs. Lal Babu Singh & Ors., (2018) 4SCC 759).

16. Second error was of a procedure which the first AppellateCourt failed to resort in disposing of the appeals. This also involved aquestion of jurisdiction.

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17. Having allowed the CMP No.1559/1993 and, in our opinionrightly, the first Appellate Court had two options, first it could have eitherset aside the entire judgment/decree of the Trial Court by taking recourseto the provisions of Order 41 Rule 23-A of the Code and remanded thecase to the Trial Court for re-trial in the suits so as to enable the partiesEto adduce oral evidence to prove the additional evidence in accordancewith law or second, it had an option to invoke powers under Order 41Rule 25 of the Code by retaining the appeals to itself and remitting thecase to the Trial Court for limited trial on particular issues arising in thecase in the light of additional evidence which was taken on record andinvite findings of the Trial Court on such limited issues to enable the firstFAppellate Court to decide the appeals on merits.

18. The first Appellate Court failed to take note of both theabovementioned provisions and proceeded to allow it wrongly.

19. Due to these two jurisdictional errors committed by the firstGAppellate Court causing prejudice to the appellants herein while opposingthe first appeals, the judgment rendered by the first Appellate Court, inour opinion, cannot be sustained legally on merits.

20. The High Court also while deciding the second appeals failedto notice these two jurisdictional legal errors which went to the root of H

THE CORPORATION OF MADRAS & ANR. v.M. PARTHASARATHY & ORS.[ABHAY MANOHAR SAPRE, J.]

the case. It is for this reason, the impugned order also cannot be legallysustained calling interference by this Court.

21. In the light of the foregoing discussion and having regard tothe totality of the facts of the case and to enable the parties to have fulland fair trial, we consider it proper to take recourse to the powers underOrder 41 Rule 23-A of the Code and accordingly set aside the judgmentand decree of the first Appellate Court to the extent it allows therespondents’ appeals on merit but at the same time uphold that part ofthe order which has allowed CMP No.1559/1993 filed by the plaintiffsfor adducing additional evidence and remand the cases to the Trial Courtfor re-trial 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 appellants are allowed to adduce additional evidence in rebuttal.Let the additional evidence taken on record by the first Appellate Courtbe remitted to the Trial Court for its proving in evidence in accordancewith law. The Trial Court, if considered appropriate, can also frameadditional issues. Parties will be allowed to adduce their oral anddocumentary evidence in addition to one already adduced.

23. The Trial Court will then decide the suits afresh on merits onthe basis of entire evidence without being influenced by any of the previousorders/judgments rendered in this case including this order because havingformed an opinion to remand the case for re-trial, we have refrainedfrom entering into the merits of the issues. Let the trial be over withinone year.

24. In view of the foregoing discussion the appeals succeed andare allowed. Impugned order is set aside.

Ankit Gyan Appeals allowed.

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