Uttaradi Mutt vs Raghavendra Swamy Mutt

Code of Civil Procedure, 1908 – Or. XLI, rr.23, 23-A and 25-29 – Suit for injunction filed by the appellant against respondent – Suit dismissed by trial court – Appellant filed first appeal wherein respondent filed applications u/Or. XLI, r.27 to produce additional evidence – First Appellate Court (FAC) allowed the appeal filed by the appellant – In second appeal filed by the respondent, High Court inter alia relegated the parties before the trial court for re-deciding the suit – Propriety of – Held: While exercising discretion u/Or. XLI, r.23-A for remanding the cases, the Appellate Court is duty bound to keep in mind Or.XLI , rr.25 and 26 – There are two options available to the Appellate Court – First, it may record the evidence itself by permitting the parties to produce evidence before it as per Or. XLI,r. 27 or direct the Court from whose decree the appeal under consideration has arisen, to do so – In the present case, the High Court did not record any special reasons for relegating the parties before the “trial court” to re-decide the suit – Only reason, which weighed with the High Court was that it was necessary to find out the truth, as it is the duty of the Court – That could be done even by directing the FAC to record evidence, which it was competent to do while hearing the first appeal – For that, as per Or. XLI, r.25, the High Court could have framed the issues and referred them for adjudication before the FAC, against whose decree the second appeal was preferred before the High Court – Considering the chequered history of the present litigation, the fact that the suit was filed in the year 1992, High Court directed to frame the points on which additional evidence could be adduced by the respondent and call upon the FAC to record additional evidence – Impugned judgment of the High Court set aside to the extent it relegated the parties before the trial court.

Code of Civil Procedure, 1908 – Or.XLI, r.27 – Application under, to produce additional evidence, allowed – Implication of – Suit for injunction filed by the appellant against respondent – Suit dismissed by trial court – Appellant filed first appeal wherein respondent filed applications u/Or. XLI, r.27 to produce additional evidence, dismissed – High Court inter alia allowed the applications filed by the respondent – Plea of appellant inter alia that even if there was sufficient ground for allowing the applications filed by the respondent for production of additional evidence, the genuineness and the contents of the additional documents would have to be proved by the party placing reliance – Held: High Court made it clear that the fact that the applications are allowed per se is not to give any direction to straightaway exhibit the additional documents, but that it could be exhibited subject to proof – Documents will have to be proved in accordance with law.

Disposing of the appeal, the Court

HELD: 1.1 In the present case, the High Court opined that the documents proposed to be produced by the respondent were official records and public documents which, if proved, could enable the Appellate Court to pronounce the judgment and do full, complete and effectual justice to the parties. In other words, the proposed additional evidence was required by the Court to answer the subject matter and in particular, to pronounce the judgment on material issues. On analysing the reasons recorded by the First Appellate Court for rejecting the three applications filed by the respondent under Order XLI Rule 27 of CPC and juxtaposing the same with the reasons recorded by the High Court for allowing those applications, it is clear that the conclusion reached by the High Court on this count is impregnable. [Paras 9, 10] [217-G-H; 218-A-B]

1.2 The High Court made it amply clear that the fact that the applications are allowed per se is not to give any direction to straightaway exhibit the additional documents, but that it could be exhibited subject to proof. The High Court has unambiguously observed that the documents will have to be proved in accordance with law. By allowing the three applications filed by the respondent under Order XLI Rule 27 of CPC, it would not follow that the additional documents/additional evidence can be straightaway exhibited rather, the respondent would have to not only prove the existence, authenticity and genuineness of the said documents but also the contents thereof, as may be required by law. [Para 11] [218-D-E]

1.3 Under Rule 23 of CPC, the Appellate Court could remand the case before it, where the Court from whose decree an appeal was preferred had disposed of the suit upon a preliminary point and that decree was reversed in appeal. Rule 23-A deals with other (residuary) category of cases to be remanded by the Appellate Court in an appeal against a decree which has been disposed of otherwise than on a preliminary point. While exercising such discretion, the Appellate Court is duty bound to keep in mind Rules 25 and 26 of Order XLI of the CPC. In other words, there are two options available to the Appellate Court. First, it may record the evidence itself by permitting the parties to produce evidence before it as per Rule 27 of Order XLI or direct the Court from whose decree the appeal under consideration has arisen, to do so. In the present case, the High Court has not recorded any special reasons as to why the parties should be relegated before the “trial Court” to re-decide the suit. The only reason, which, presumably, weighed with the High Court, was that it was necessary to find out the truth, as it is the duty of the Court. That could be done even by directing the First Appellate Court to record evidence, which it was competent to do while hearing the first appeal, had it allowed the applications under Order XLI Rule 27 of CPC by the respondent. For that, as per Rule 25 of Order XLI of the CPC, the High Court could have framed the issues and referred them for adjudication before the First Appellate Court, against whose decree the second appeal was preferred before the High Court. The High Court could have issued directions to the First Appellate Court to determine any question of fact including the existence and genuineness of the additional evidence or for that matter, whether the contents of the said documents had been duly proved by the party relying thereon. After recording the evidence in support of such relevant matters as the High Court may have directed, the First Appellate Court could proceed to try such issues and return the evidence to the High Court together with its findings thereon within the prescribed time. Such a course was permissible in terms of Rule

28 of Order XLI of CPC. [Paras 14, 15 and 17] [219-F-G; 220-E; 222-C-E]

1.4 Considering the chequered history of this litigation and the fact that the suit was filed in the year 1992, and that the writ petition against the order passed by the Superintendent of Land Records is stated to be pending before the High Court, the High Court is directed to frame the points on which additional evidence could be adduced by the respondent and call upon the First Appellate Court to record additional evidence and also consider the question of genuineness and authenticity of the additional evidence, including as to whether the contents thereof have been proved by the party relying thereon, and thereafter, to return the evidence to the High Court. The High Court may then consider the Second Appeal on the substantial questions of law already framed or such other substantial questions of law that may arise for its consideration. Such a course would meet the ends of justice. The impugned judgment and order of the High Court is set aside in part, to the extent that it relegated the parties before the trial Court for re-deciding the suit. [Paras 18, 19] [223-C-F]

Union of India v. Ibrahim Uddin and Anr. (2012) 8 SCC

148 : [2012] 8 SCR 35 – relied on.

H.P. Vedavyasachar v.. Shivashankara and Anr.

(2009) 8 SCC 231 : [2009] 12 SCR 268 which has also considered the decision in Shanti Devi v. Daropti Devi (2006) 13 SCC 775 : [2006] 10 Suppl. SCR 1050 – referred to.