Suit – Permanent prohibitory injunction – Claim for – Plaintiff -respondent filed suit for permanent prohibitory injunction in respect of the suit property – The defendant-appellant disputed the claim of the plaintiff – The Trial Court decreed the suit – The First Appellate Court on reappreciating the matter, set aside the judgment of the Trial Court and remanded the suit to the Trial Court for fresh disposal in terms of Or. 41 r. 23A CPC – However, the High Court restored the judgment and decree passed by the Trial Court and held that the suit was for bare injunction and found that the exercise to identify the property with reference to the ownership was not justified – On appeal, held: In the instant case, the dispute had arisen when the plaintiff was seeking to put up a construction of the wall and the defendants had objected to the same – The defendants had in the written statement referred to the manner in which the right to property had flowed ever since the partition through the deed and the measurements – The location of the shares enjoyed by the parties is referred and the right as claimed by the plaintiff is disputed – The Trial Court had framed the issues referring to the identity of the property as also the ownership and possession – The plaintiff did not object to the said issues – Instead, the evidence was tendered based on the issues – The Trial Court answered the issues referring to the identity to the property, ownership and possession in favour of plaintiff – In that background, the defendant questioned the conclusion reached by the Trial Court – Thereafter, the First Appellate Court held that the said issues needed reconsideration and in the background of the additional evidence and opportunity was provided to the defendant – Therefore, in the facts and circumstances of the present case the High Court was not justified, but the conclusion of the First appellate Court was the appropriate course.
Allowing the appeal, the Court
HELD: 1. The issues No.1 and 2 framed by the trial court refers to the identity of the property as also the ownership and possession thereof. The plaintiff did not object to the said issues nor did the plaintiff file any application under Order 14 Rule 5 CPC seeking amendment or to strike out the said issues. On the other hand, the evidence was tendered based on the issues and the Issue Nos.1 and 2 were considered by the trial court and was answered in favour of the plaintiff wherein it is held that the plaintiff is in ownership and possession of the plaint schedule property. In that background when the defendant had questioned such conclusion reached by the trial court and had put forth the contention and also sought for an opportunity to produce additional evidence by filing an application under Order 41 Rule 27 CPC and in that background when the lower appellate court was of the opinion that the said issues need reconsideration in the background of the additional evidence and opportunity being provided to the defendant the appropriate course was to remand the matter to the trial court and provide opportunity which was accordingly done. [Para 13][981 B-F]
2. If the above aspects are kept in view the observations made by the High Court relating to the consideration required being only of possession since the suit was for perpetual injunction is without reference to the nature of contentions put forth in a suit, the issues that had been raised for consideration and the conclusion that had been reached by the trial court as also the lower appellate court in that background. Hence, this Court is of the opinion that in the facts and circumstance of the present case the High Court was not justified, but the conclusion of the lower appellate court to set aside the judgment and decree of the trial court and remand the matter for reconsideration by the trial court was the appropriate course. [Para 14][981 F-H]
Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors. (2019) 8 SCC 729 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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