Holding

The appeal is maintainable because the suit does not fall within Section 6 of the Specific Relief Act, and the High Court could not remand the entire suit; it may only direct the trial court to record additional evidence under Order 41 Rule 28.

Summary

The plaintiff, H.V. Vedavyasachar, sued Shivashankara and others for a permanent injunction and a mandatory injunction directing possession of the suit property. The trial court decreed the suit. On appeal, the respondents filed an application under Order 41 Rule 27 CPC to adduce additional evidence, which was allowed, but they failed to produce the evidence. The High Court remanded the entire suit to the trial court for fresh disposal after recording fresh evidence. The Supreme Court held that the suit was not filed under Section 6 of the Specific Relief Act, so the appeal was maintainable, and that the High Court could not remand the whole suit; it could only direct the trial court to record the additional evidence under Order 41 Rule 28. The Court modified the order, directing the trial court to record the evidence and transmit the record to the appellate court, and disposed of the appeal.

Issues considered

The suit was filed under Section 6 of the Specific Relief Act, 1963, making the appeal non-maintainable.
The appellate court's power to remand a case for fresh disposal after allowing additional evidence, and the correct CPC provision governing such remand.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 23, s. Order 41 Rule 23A, s. Order 41 Rule 25, s. Order 41 Rule 27, s. Order 41 Rule 28
Specific Relief Act, 1963s. 6

Subjects

injunctionpermanent injunctionmandatory injunctionadditional evidenceappellate remandSpecific Relief ActCPC Order 41appeal maintainability

Judgment

[2009] 12 S.C.R. 268

A H.V. VEDAVYASACHAR
V. -+
'
SHIVASHANKARA & ANR.
(Civil Appeal No. 5201 of 2009)
AUGUST 3, 2009
B
[S.B. SINHA AND DR MUKUNDAKAM SHARMA, JJ.]

Code of Civil Proc,9dure, 1908 - 0.41 r. 27 - Suit for
permanent and mar.datory injunction - Decreed - In appeal,
c application for adducing additional evidence - Appellate court
allowing the application remanding the matter to trial court for
fresh disposal after recording the evidence - On appeal, Plea
of maintainability of appeal, the suit being uls 6 of the Specific
Relief Act - Held : Appeal was maintainable as suit was not
D under Specific Relief Act - However, Appellate Court while
allowing the application, could not have remanded the entire
~
matter for disposal - It could have recorded or could have
~
directed the trial court to record the evidence - Direction
issued to trial court to transmit the case to appellate court after
recording the evidence - Specific Relief Act, 1963 - s. 6
E
Appellant filed a suit seeking permanent injunction
and mandatory injunction against respondents. The suit
was decreed. In appeal against the same, respondent-
defendants filed an application under Order 41 r. 27
F C.P.C. seeking permission to adduce additional evidence.
The application was allowed. Despite grant of various
opportunities to adduce evidence the respondent failed
to do so. Thereafter, lthe appellate Court remanded the
matter to trial court for fresh disposal after recording
G fresh evidence. Hence, the present appeal.
Disposing of the appeal, the Court

HELD: 1. It is not correct to say that the suit was

H 268
,

H.V. VEDAVYASACHAR v. SHIVASHANKARA & ANR. 269

instituted in terms of Section 6 of the Specific Relief Act, A
1963. 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
would not come within the purview of Section 6 of the B
Specific Relief Act. [Para 8) [272-H; 273-A-B]

2.1. High Court could not have directed the trial court
to dispose of the suit after taking evidence. When an
application for adducing additional evidence is allowed, C
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. Such an order of remand could be only in terms
of Order XU Rule 23, Order XU Rule 23A or Order XU
Rule 25 CPC. None of the said provisions have any
application in the instant case. [Paras 9 and 10) [273-E- D
F]

Shanti Devi and Ors. vs. Daropti Devi and Ors. (2006)
13 sec 775, relied on.
E
2.2. In modification of the impugned order, it is
directed that 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. [Para 12) [274-C-D]
F
Case Law Reference:
(2006) 13 sec 775 relied on Para 11
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5201 of 2009. G
From the Judgment & Order dated 29.10.2007 of the High
Court of Karnataka at Bangalore in RFA No. 1966 of 2007.
Balaji Srinivasan, Sudarsna Ojha, Dr. Maya Rao for the
Appellants. H
270 SUPREME COURT REPORTS [2009] 12 S.C.R. ,..
A C.G. Gopalsamy. T:S. Santhi, V. Balaji, Narendra Kumar .. •
for the Respondents.

The Judgment cif the Court was delivered by

S.B. SINHA J. 1. Leave granted.
B
2. The plaintiff is appellant before us. He filed a suit praying
inter alia for the follciwing reliefs:

"to grant a judgment and decree of a permanent
c 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 .
D
under the circumstances in the interest of justice and
equity."
.,
~

3. However, an application for leave to amend the plaint
was filed which having been allowed; the prayers made in the
E 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 intE~rfere in the plaintiffs lawful possession and
F
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
G 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
H
H.V. VEDAVYASACHAR v. SHIVASHANKARA & ANR. 271
[S.B. SINHA, J.]

~
for the enquiry into the mesne profits with Order XVIII Rule A
i ' 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.:

4. The said suit was decreed. The respondents herein
B
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
-'f given opportunity to adduce said evidence by the learned trial
judge. The said application was allowed. It is stated that an c
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:- D
-+
• "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 E
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 F
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 obseNations at this juncture when
the matter is being remanded would only affect the case
G
of the parties on merits and hence, I proceed to pass the
1
following order:

The application field by the appellants for leading additional
evidence is allowed and the appellants are permitted to lead
H
272 SUPREME COUHT REPORTS (2009] 12 S.C.R.

A additional evidence before the trial court. the respondent also
.1
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."
B
5. The appellant is b•afore us questioning the correctness
of the said judgment.

6. The learned counsel appearing on behalf of the
appellant has raised two contentions before us:- +-
c
(i) the suit bein9 one under Section 6 of the Specific
Relief Act, an appeal was not maintainable against
the judgment and decree passed therein:

(ii) No case ha.s been made out for grant of an
D 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 rnmoval as envisaged under Order XLI
E Rule 23 of CPC.

7. The learned counsel appearing on behalf of the
respondents, however, would contend that:
*
(i) the learned trial judge committed an illegality in
F
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 XU Rule 23 of the Code
of Civil Procedure.
G
(ii) The High Court having found that it may not be A

possible for it to record evidence issued the
following aforementioned directions.

H
8. So far as the contention of the learned counsel for the
H.V. VEDAVYASACHAR v. SHIVASHANKARA & ANR. 273
[S.B. SINHA, J.]
appellant that the suit was instituted in terms of Section 6 of A
"t t 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 B
opinion, would not come within the purview of Section 6 of the
Specific Relief Act.

9. However, so far as the second contention raised by the
_.. learned counsel for the appellant is concerned~ in our opinion, C
the same has substance. When an application for adducing
i 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:-
D
"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 E
to send it when taken to the Appellate Court."

10. 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 F
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.

11. This Court in Shanti Devi & Ors. v. Daropti Devi And
Others (2006) 13 SCC 775 has held as under:- G

"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 H
274 SUPREME COUFff REPORTS [2009] 12 S.C.R.

A of Order 41 Rules 23 and 23A or Order 41 Rule 25 of the
_..
Code of Civil Procedure. lsue 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
B of fact, whicil according to it was essential upon reframing
the issue."

12. 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:
c
(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.
D
(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
E 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.
+
F 13. We are passing the order keeping in view the fact that
the appellant is said to have been dispossessed as far back
as 1993.

14. In the facts and circumstances of this case, there shall
be no order as to costs.
G
15. The appeal is disposed of, accordingly.

K.K.T. Appeal disposed of.