VELAYUDHAN & ORS.versusMOHAMMEDKUTTY & ORS.

                        [2017) 3 S.C.R. 533


                     VELAYUDHAN & ORS.                                  A
                                 v.
                  MOHAMMEDKUTTY & ORS.
                  (Civil Appeal No. 5459 of2007)
                          APRIL 18,2017                                 B

  [R. K. AGRAWAL AND AlllIAY MANOIIAR SAPRE, JJ.]
       Suit- Nature of- For grant ofpermanent injunction simpliciter
or for declaration of title with permanent injunction as ·
consequential relief - Suit by respondents-plaintiffs in relation to
                                                                      c
land, decreed by trial court - First appellate court dismissed the
suit by allowing the appeal of appellants-defendants - High Court
in second appeal by respondents decreed the suit holding that the
suit was one for perpetual injunction and thus investigation into
the question of title was not necessary - Propriety of - Held: One
of the questions, which fell for consideration before the first and D
second appellate Court was regarding the nature of the suit filed by
the respondents and the reliefs claimed therein - High Court
proceeded on the assumption that the civil suit filed by the
re!>pondents was essentially for grant of permanent injunction
simpliciter - The issue of title having swfaced in the relief clause,
                                                                      E
the same is of some significance over the rights of the parties while
considering the grant of the reliefs - Keeping in view the averments
made in the plaint read with the prayer clause, it cannot be said
that the suit is only for grant of permanent injunction simpliciter -
Matter remanded back to High Court - Code of Civil Procedure,
1908 - s.100 - Substantial question of law.                           F
      Allowing the appeal in part, the Court
       HELD: 1.1 One of the questions, which fell for
consideration before the first and second appellate Court was
regarding the nature of the suit filed by the respondents and the
reliefs claimed therein. Was it a suit for grant of permanent           G
injunction sim pliciter or a suit to seek a declaration of title with
consequential relief of grant of permanent injunction in relation
lo the suit land? [Paras 10, 11) [536-D-E)
      1.2 Reading the expression "or from doing a11ytlii11g
                                                                        H
                                 533
534            SUPREME COURT REPORTS                        [2017] 3 S.C.R.


A     detrimental to the title and possession ofthe plaintiffs" in the prayer
      clause of the plaint shows that the plaintiffs have also expressed
      apprehension in relation to their title over the suit properties.
      [Para 13 ][ 536-ll]
            1.3 Keeping in view the averments made in Para 1 of the
B     plaint read with aforementioned words of the prayer clause, it
      cannot be said that the suit is only fur grant of permanent injunction
      simpliciter. In other words, the issue of title having surfaced in
      the relief clause, the same is of some significance over the rights
      of the parties while considering the grant of the reliefs. It is true
      that the relief clause in the plaint is not happily worded but the
c     reading of the plaint as a whole in the context of the reliefs claimed
      therein would go to show that the issue of title is not wholly foreign
      to the controversy and is relevant while considering the grant of
      permanent injunction. [Paras 14, 15 and 16] [537-A-C)
            1.4 The High Court proceeded to decide the appeal in the
D     light of the first substantial·quesii'on of law and thus committed
      an error. The first error was in framing the wrong question and
      the second was in proceeding to examine the said question. In
      view of the aforesaid reasons;· the matter needs a fresh look by
      the High Court after framing proper questions of law keeping in
E     view the pleadings and the findings of the two Courts below. [Paras
      17, 19 and 20][537-C-D, E-G)
            Anathula Sudhakar v. P Buchi Reddy (Dead) by L.Rs.
            & Ors. (2008) 4 sec 594 : [2008] 5 SCR 331 -
            referred to.
 F                             Case· Law Reference
            [2008) 5 SCR 331           referred to             Para 18
           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5459
      of2007.
G          From the Judgment and Order dated 08.03 .2006 of the High Court
      ofKerala at Ernakulam, in S. A. No. 180/920 & 475/1992.
            M. K. S. Menon, Ms. Shreya Menon, Ms. Usha Nandini V: (for
      Jogy Scaria), Advs. for the Appellants.
             K. Rajeev, Shinoj K. Narayanan, Ad vs. for the Respondents.
 H
   VELAYUDHAN & ORS. v. MOHAMMEDKUTTY & ORS.                                 535


      The Judgment of the Court was delivered by                             A
      ABIIAY MANOUAR SAPRE, J. I. This appeal is filed by the
defendants against the final judgment and order dated 08.03.2006 passed
by the High Court of Kerala in S.A. No.180 & 475/1992 whereby the
High Court allowed the second appeals filed by the plaintiffs-respondents
herein and set aside the judgment and decree dated 26.07.1991 of the          B
Subordinate Judge, Tirur in A.S. Nos. 83 & 84of1988 and restored the
judgment dated 30.09 .1988 of the Munsif of Parappanangadi in O.S.
No. 177 of 1983.
       2. We need not burden our j udg1n~nt by mentioning the facts [11 ·
detail except to the extent necessary to appreciate the issue involved in C
the appeal.· ·
               '                                                         '
       3. The appellants herein are the defendants whereas the
respondents are the plaintiffs in a suit out of which this appeal arises.
       4. The respondents filed a civil suit in relation to ihe suit land as
described in detail in schedule to the plaint against the appellants before D
the Munsif of Parappanangadi. The Munsif Court decreed the
respondents' suit against the appellants and passed the decree as prayed·
by the plaintiffs.
       5. The defendants, felt aggrieved, filed the first appeals before
the Subordinate Judge Tirur. The first appellate Court allowed the appeals    E
and dismissed the suit. The respondents, felt aggrieved, filed Second
Appeals under Section 100 of Code of Civil Procedure, 1908 (hereinafter
referred to as "the Code"). The High Court admitted the appeals on the
following two substantial questions of law:
      "1. The suit being one for perpetual injunction,                        F
      whether investigation into the question of title was
      necessary or called for?
      2. Whether, in view of the evidence, including the
      Commissioner's report, the Appellate Court was
      justified in coming to the conclusion that the                          G
      appellants bad no possession?"
       6. By impugned order, the High Court allowed the appeals and
while reversing the judgment and decree of the first appellate Court
restored that-of the Trial Cou11, which had decreed the respondents'
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536             SUPREME COURT REPORTS                             [2017] 3 S.C.R.


A     suit. It is against this order of the High Court, the defendants felt aggrieved
      and filed this appeal by way of special leave before this Court.
           7. Heard Mr. M.K.S. Menon, learned counsel for the appellants
      and Mr. K. Rajeev, learned counsel for the respondents.
B.            8. Having heard learned counsel for the parties and on perusal of
      the record of the case, we. are inclined to allow the appeal in part and
      while setting aside of the impugned order consider it just and proper and
      in the. interest of all parties concerned to remand the case to the High
      Court for deciding the plaintiffs' Second Appeals afresh on merits by
      reframing the fresh substantial questions of law.
c             9. In our considered opinion, the need to remand the case to the
      High Court for deciding the Second Appeals afresh has arisen because
      we find that the High Court proceeded on the assumption that the Civil
      Suit filed by the respondents out of which this appeal arises is essentially
      for grant of permanent injunction simpliciter. It would be clear from the
D     first substantial question oflaw framed by the High Court quoted supra.
              I 0. One of the questions, which fell for consideration before the
      first and second appellate Court was regarding the nature of the Suit
      filed by the respondents and the reliefs claimed therein.
             11. Was<it a suit for grant of permanent injunction simpliciter or a
E     suit to seek a declaration of title with consequential relief of grant of
      perman~nt injunction in relation to the suit land?

              12. On perusal of the plaint, we find that the plaintiffs asked for
      the following reliefs:
             "A. Issue an order of injunction tffeventing defendants
F
             or their men from entering into or taking any usufructs
                                           I
             from the plaint schedule property or from doing
             anything detrimental to the title and possession of
             the plaintiffs.
             B. Direct the defendants to pay all costs in the suit.~
G
             C. Such other or further orders be 11assed in the suit."
              13. Reading the expression "orji-0111 doing anything detrimental
      to the title and possession of the plaintiffs" in prayer clause A quoted
      above would show that the plaintiffs have also expressed apptehension
H     in relation to their title over the suit properties.
    VELAYutrHAN & ORS. v. MOHAMMEDKUTTY & ORS.                                        537
             [ABHAY MANOHAR SAPRE, J.]

       14. Keeping in view the averments made in Para 1 of the plaint                 A
read with aforementioned words of the prayer clause, we are of the
view that it cannot be said that the Suit is only for grant of permanent
injunction simpliciter. In other words, the issue of title having surfaced in
the relief clause, the same is of some significance over the rights of the
pa11ies while considering the grant of the reliefs.
                                                                                      B
       15. In our considered opinion, the reading of the plaint as a whole
in the context of the reliefs claimed therein would go to show that the
issue of title is not wholly foreign to the controversy and is relevant
while considering the grant of permanent injunction.
       I 6. It is true that the relief clause in the plaint is not happily worded     c
but, as observed supra, reading the plaint as a whole along with relief
clause does support our observations.
       17. Since the High Court proceeded to decide the appeals in the
light of first substantial question oflaw and hence it committed an error.
The first error was in framing the wrong question and the second was in               D
proceeding to examine the said question.
      18. The issue, in our view, was required to be examined by the
High Court keeping in view the law laid down by this Court in the case
of Anathula Sudhakar vs. P. Buchi Rcddy(Dead) by L.Rs. & Ors.,
2008(4) SCC 594. It was, however, not done.       .                                    E
       19. It is due to the aforesaid reasons, we are of the view that
matter needs a fresh look by the High Court on the questions which
arise in the case.
       20. In the light of foregoing discussion, we allow the appeal in
part, set aside the impugned judgment and remand the case to the High                 F
Court to decide the appeal afresh after reframing the proper substantial
questions oflaw kee(}f11gin view the pleadings and the findings of the
two Cou11s below as required under Section 100 oftht}Code.
      21. Since the appeal is quite old, we request the High Court to
decide the appeal expeditiously.                                                      G


Divya Pandey                                                 Appeal partly allowed.