ITEM NO.304               COURT NO.3             SECTION IVA

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                      Petition(s) for Special Leave to Appeal (Civil) No(s).1279/2008 (From the judgement and order dated 29/10/2007 in  RFA No. 1966/2007  of The  HIGH  COURT OF KARNATAKA AT BANGALORE)

H.P.VEDAVYASACHAR                                 Petitioner(s)

                VERSUS

SHIVSHANKARA & ANR.                               Respondent(s) (With prayer for interim relief and office report)

Date: 03/08/2009  This Petition was called on for hearing today.

CORAM :         HON'BLE MR. JUSTICE S.B. SINHA         HON'BLE DR. JUSTICE MUKUNDAKAM SHARMA

For Petitioner(s) Mr. Balalji Srinivasan,Adv. Mr. Sudarsna Ojha, Adv.

                    Dr. Maya Rao, Adv.

For Respondent(s) Mr. C.G. Gopalsamy, Adv. Ms. T.S. Santhi,Adv. Mr. V. Balaji, Adv.

                    Mr. Narendra Kumar, Adv.

          UPON hearing counsel the Court made the following                                O R D E R  

Leave granted. The appeal is disposed of in terms of the signed reportable judgment.   In the  

facts and circumstances of this case, there shall be no order as to costs.

(KALYANI GUPTA) SR. P.A.

(PUSHAP LATA  BHARDWAJ)

COURT MASTER

[SIGNED REPORTABLE JUDGMENT IS PLACED ON THE FILE.)

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5201   OF 2009

ARISING OUT OF S.L.P. (C) NO. 1279 OF 2008

H.P. VEDAVYASACHAR ..... APPELLANT

VERSUS

SHIVASHANKARA & ANR. ..... RESPONDENTS

J U D G M E N T

S.B. SINHA J.  

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.”

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.:  

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.”  

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  decree  

passed therein:

(ii) No case has been made out for grant of an opportunity to adduce  

additional evidence and that  in any event for the said purpose,  

the entire case could not have been remanded to the trial court for  

fresh  disposal  after  recording  fresh  evidence  as  it  was  not  a  

removal as envisaged under Order XLI Rule 23 of CPC.

The  learned  counsel  appearing  on  behalf  of  the  respondents,  

however, would contend that:

(i) the learned trial judge committed an illegality in refusing to take  

evidence which the respondent intended to adduce by closing the  

case  on  13.06.2007  which  necessitated  filing  of  an  application

under Order XLI Rule 23 of the Code of Civil Procedure.

(ii) The High Court having found that it may not be possible for it to  

record evidence issued the following aforementioned directions.

So far as the contention of the learned counsel for the appellant that  

the suit was instituted in terms of Section 6 of the Specific Relief Act, 1963 is  

concerned, in our opinion, the same cannot be accepted .  Appellant has not  

only prayed for grant  of  a  decree for permanent injunction but  has also  

asked  for  passing  a  decree  for  mandatory  injunction  directing  the  

respondents  to  handover  possession  to  it.   Such  prayers,  in  our  opinion,  

would not come within the purview of Section 6 of the Specific Relief Act.  

However,  so  far  as  the  second  contention  raised  by  the  learned  

counsel  for  the  appellant  is  concerned,  in  our  opinion,  the  same  has  

substance.  When an application for adducing additional evidence is allowed  

the appellate court has two options open to it.  It may record the evidence  

itself or it may direct the trial court to do so.  Order XLI Rule 28 of the CPC  

reads as under:-

“28.Mode  of  taking  additional  evidence  –  Wherever  additional  evidence  is  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 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 to dispose of the suit after  

taking evidence.  Such an order of remand could be only in terms of Order

XLI Rule 23, Order XLI Rule 23A or Order XLI Rule 25 of the Code. None  

of the said provisions have any application in the instant case.

This  Court  in  Shanti  Devi  & Ors. v.  Daropti  Devi  And  Others  

(2006) 13 SCC 775 has held as under:-

“But the same by itself could not be a ground  for remitting the entire suit  to the learned trial  judge  upon setting aside the decree of the learned trial court.  The power of remand vests in the appellate court either  in  terms of  Order 41 Rules  23 and 23A or Order 41  Rule 25 of the Code of Civil Procedure.  Isue 4 was held  to have been wrongly framed.  Onus of proof was also  wrongly placed and only in that view of the matter the  High Court thought it fit to remit it to the learned trial  judge to determine a question of fact, which according  to it was essential upon reframing the issue.”  

None of the aforementioned provisions were available to the High  

Court.  We, therefore,in modification of the order passed by the High Court  

direct as under:

(i) The learned trial court upon recording the evidence as directed  

by  the  High  Court  shall  transmit  the  records  to  the  First  

Appellate Court with  a copy of its report annexed thereto.

(ii)Such an exercise by the learned trial  court must be completed  

within a period of four weeks from the date of communication of  

this order.

(iii) The  first  appellate  court  must dispose  of  the  first  appeal  on  

receipt  of  the  said  order  as  also  the  evidence  as  adduced  as  

expeditiously as possible and not later than 8 weeks from the date  

of receipt of the said report.

We are passing the order keeping in view the fact that the appellant  

is said to have been dispossessed as far back as 1993.

In the facts and circumstances of this case, there shall be no order  

as to costs.     

The appeal is disposed of, accordingly.

    ......................J    [S.B. SINHA]

  ......................J    [DR.  MUKUNDAKAM  

SHARMA]

NEW DELHI AUGUST 03, 2009.