THE CORPORATION OF MADRAS & ANR.versusM. PARTHASARATHY & ORS.

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


A                THE CORPORATION OF MADRAS & ANR.
                                         v.
                        M. PARTHASARATHY & ORS.
                          (Civil Appeal No.3033 of 2006)
B                               AUGUST 10, 2018
       [ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]
             Code of Civil Procedure, 1908 – O.41, r.27, O.41, r.25 and
      O.41, r.23-A – Additional document – Respondents-plaintiffs claimed
      to be the owners of the suit land – They filed civil suits for permanent
C     injunction against the appellants-defendants – Civil suits were
      dismissed by the trial Court – Aggrieved, respondents-plaintiffs filed
      first appeals along with an application u/O.41, r.27 C.P.C. to file
      additional documents – First Appellate Court not only allowed the
      application u/O.41, r.27 C.P.C. but further placed reliance on the
D     additional evidence tendered by the respondents-plaintiffs and
      decreed all the civil suits in favour of them – On appeal, held:
      Judgment of the First Appellate Court unsustainable – First Appellate
      Court committed jurisdictional errors – It took into consideration
      the additional piece of evidence while deciding the appeals on merits
      without affording any opportunity to the appellants-defendants to
E     file any rebuttal evidence to counter the additional evidence
      adduced by the respondents-plaintiffs – Furthermore, after allowing
      application u/O.41, r.27 C.P.C. the First Appellate Court could have
      either 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-trial
F     or it could have invoked powers u/O.41, r.25 C.P.C. by retaining
      the appeals to itself and referring the case to the trial Court on a
      limited issue of additional evidence – These jurisdictional errors
      caused 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.
G            Allowing the appeals, the Court
             HELD: 1.1 The first Appellate Court committed two
      jurisdictional errors in allowing the appeals. First, it took into
      consideration the additional piece of evidence while deciding the
      appeals on merits without affording any opportunity to the
H     appellants herein (who were respondents in the first appeals) to
                                         900
         THE CORPORATION OF MADRAS & ANR. v.                            901
              M. PARTHASARATHY & ORS.

file any rebuttal evidence to counter the additional evidence           A
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.[Paras 14-15] [903-H; 904-A-B]
                                                                        B
       1.2 The 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. 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 23-A of the Code and remanded the           C
case to the Trial Court for re-trial 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 on   D
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. [Paras 16-17] [904-D-F]
       Land Acquisition Officer, City Improvement Trust Board
       v. H. Narayanaiah & Ors. (1976) 4 SCC 9: [1977]                  E
       1 SCR 178; Shalimar Chemical Works Ltd. v. Surendra
       Oil & 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 Reference                               F
[1977] 1 SCR 178                 referred to             Para 15
[2010] 10 SCR 703                referred to             Para 15
(2018) 4 SCC 759                 referred to             Para 15
       CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3033
of 2006                                                                 G
       From the Judgment and Order dated 09.10.2002 of the High Court
of Judicature at Madras in Second Appeal Nos. 126 to 129 of 1997
                                WITH
      C.A. No.8185 of 2018
                                                                        H
902             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


A           R. Basant, Sr. Adv., M. Yogesh Kanna, Mrs. Sujatha Bagadhi,
      Partha Sarathi, Ms. Aruna Prakash, Praksh Gogalani, M/s. Arputham
      Aruna & 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)
B     No. 21796/2018 (D.No.15579/2017).
            2. These appeals are directed against the final judgment and order
      dated 09.10.2002 passed by 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
C     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
D     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
E     filed four civil suits bearing O.S. Nos.2207 of 1992, 2345 of 1992, 2346
      of 1992 and 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
F     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
G     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 341 of 1993 in the Court of 8th 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
H
       THE CORPORATION OF MADRAS & ANR. v.                                          903
M. PARTHASARATHY & ORS.[ABHAY MANOHAR SAPRE, J.]

“the Code”) and sought permission to adduce additional evidence in                  A
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          B
the additional evidence as Exs. P-16 to P-20 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.
                                                                                    C
        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                D
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             E
and Ms. Aruna Prakash, learned counsel for the respondents.
       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.                                       F
       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               G
only taken on record but also relied on by the Appellate Court as
Exs. P-16 to P-20 for allowing the appeals filed by the respondents
which, in consequence, resulted in decreeing all the four civil suits.
      14. In our considered opinion, the first Appellate Court committed
two jurisdictional errors in allowing the appeals.                                  H
904             SUPREME COURT REPORTS                           [2018] 10 S.C.R.


A            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
B
      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) & Ors., (2010) 8
C     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.
D            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 23-A of the Code and remanded the
      case to the Trial Court for re-trial in the suits so as to enable the parties
E     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 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
F     Appellate Court to decide the appeals on merits.
           18. The first Appellate Court failed to take note of both the
      abovementioned provisions and proceeded to allow it wrongly.
             19. Due to these two jurisdictional errors committed by the first
G     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
H
       THE CORPORATION OF MADRAS & ANR. v.                                         905
M. PARTHASARATHY & ORS.[ABHAY MANOHAR SAPRE, J.]

the case. It is for this reason, the impugned order also cannot be legally         A
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 23-A of the Code and accordingly set aside the judgment              B
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 re-trial of all the four civil suits on merits afresh.
                                                                                   C
       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 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               D
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         E
formed an opinion to remand the case for re-trial, we have refrained
from entering into the merits of the issues. Let the trial be over within
one year.
       24. In view of the foregoing discussion the appeals succeed and
are allowed. Impugned order is set aside.                                          F
Ankit Gyan                                                      Appeals allowed.




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