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   REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 5540 OF 2017 (Arising out of S.L.P.(c) No. 2771 of 2014)

J. Balaji Singh       ….Appellant(s)

VERSUS

Diwakar Cole & Ors.                ….Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.   

2) This appeal is filed by the plaintiff against the

final judgment and order dated 26.09.2013 passed

by the High Court of Judicature, Andhra Pradesh at

Hyderabad  in  Civil  Misc.  Appeal  No.645  of  2012

whereby the learned Single Judge of the High Court

allowed  the  appeal  filed  by  the  defendants

(respondents  herein)  and  set  aside  the  judgment

and  decree  dated  17.02.2012  passed  by  the

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Additional  District  Judge,  Kadapa  and  confirmed

the judgment and decree dated 31.12.2009 passed

by the Senior Civil Judge, Kadapa in Original Suit

No.62 of 2005.

3) Facts necessary for the disposal of the appeal,

which lies in narrow compass, need mention infra to

appreciate the controversy involved in the appeal.

4) The  appellant  is  the  plaintiff  whereas  the

respondents are the defendants in a civil suit out of

which this appeal arises.

5) The appellant filed a civil suit being O.S. No.62

of  2005  before  the  Senior  Civil  Judge,  Kadapa

against the respondents for  declaration of his title

over  the  suit  property  (described  in  detail  in  the

Schedule to the plaint) and also sought permanent

injunction against the respondents restraining them

from  interfering  in  his  possession  over  the  suit

property.  

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6) The respondents filed their respective written

statements  and  denied  the  appellant's  claim over

the suit property. The Trial Court framed issues on

law  and  facts  on  the  basis  of  the  pleadings  for

adjudicating the rights of the parties arising in the

case.  The  parties  filed  the  documentary  evidence

and  adduced  oral  evidence  in  support  of  their

respective case.  

7) The  Trial  Court,  vide  judgment/decree  dated

31.12.2009  in  O.S.  No.62  of  2005  dismissed  the

appellant's  suit.  Felt  aggrieved,  the appellant filed

first appeal being A.S. No.42 of 2010 before the VI

Additional  District  Judge,  Kadapa.  In  appeal,  the

appellant filed one application (I.A. No. 211 of 2011)

under Order 41 Rule 27 read with Section 151 of

the  Code  of  Civil  Procedure,  1908  (hereinafter

referred to as “the Code") and sought permission to

file  additional  evidence  (documents)  in  support  of

his case which, according to him, was material and

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necessary for the proper disposal of the suit.  It was

alleged  that  the  additional  evidence  could  not  be

filed in suit at that time due to its non-availability

with  the  plaintiff.   The  respondents  opposed  the

application.  

8) The first Appellate Court, by judgment/decree

dated  17.02.2012,  allowed  the  application

(I.A.No.211  of  2011)  filed  by  the  appellant  under

Order 41 Rule 27 read with Section 151 of the Code

and then proceeded to decide the appeal on merits.

By his lengthy judgment (pages 97 to 129, Annexure

P-10 to SLP paper book) the first Appellate Judge

allowed the appeal, set  aside the judgment/decree

of  the  Trial  Court  and remanded the  case  to  the

Trial  Court  for  deciding the suit  afresh on merits

uninfluenced by any of  the observations made by

him  in  the  judgment.   The  parties  were  granted

liberty to adduce additional evidence in support of

their case in the Trial Court.

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9) Felt aggrieved by the aforesaid judgment, the

respondents  (defendants)  filed  C.M.A.  No.645  of

2012 before the High Court under Order 43 Rule 1

(u) of the Code.

10) By  impugned  judgment,  the  learned  Single

Judge allowed the appeal, set aside the judgment of

the first Appellate Court and dismissed the suit by

restoring  the  judgment  and  decree  of  the  Trial

Court.  Felt  aggrieved,  the  plaintiff  has  filed  this

appeal by way of special leave before this Court.

11) Heard Mr. D. Bharat Kumar, learned counsel

for  the  appellant  and  Mr.  Y.  Raja  Gopala  Rao,

learned counsel for the respondents.

12) Having heard learned Counsel for the parties

and on perusal  of  the  record of  the  case,  we are

constrained  to  allow  the  appeal,  set  aside  the

impugned  judgment  and  remand  the  case  to  the

Trial  Court  for  deciding  the  civil  suit  afresh  on

merits in accordance with law.

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13) The question, which arises for consideration in

this appeal, is whether the High Court was justified

in  allowing  the  defendants’  appeal  and  thereby

justified  in  restoring  the  judgment/decree  of  the

Trial Court which had dismissed the suit.  In other

words,  the questions which arose before the High

Court were, whether the first Appellate Court was

justified in setting aside the judgment/decree of the

Trial  Court;  and if  so,  whether  it  was justified in

remanding the case to the Trial Court for fresh trial

of  the  suit  in  accordance  with  law.  Another

question, which fell for consideration, was whether

the  first  Appellate  Court  was  justified  in  allowing

the  application  filed  by  the  appellant  (plaintiff)

under Order 41 Rule 27 of the Code by which the

plaintiff had sought permission to adduce additional

evidence in appeal in support of his case.

14) As is clear from mere perusal of the impugned

judgment,  we  find  that  the  High  Court  recorded

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inconsistent finding insofar as it pertained to Order

41 Rule 27 of the Code.   In Para 26, it was held  as

under:  

"26………….Assuming that the lower appellate Court felt that the additional documents filed by the plaintiff in the appeal before it have some bearing on the case, nothing prevented it  from  considering  the  same,  giving opportunity to both parties to lead evidence and deciding the appeal……."

15) Whereas in the other part of the judgment, the

learned Single Judge did not approve the approach

of the first Appellate Court in granting indulgence to

the  appellant  to  fill  the  lacuna  by  adducing

evidence. Be that as it may, having observed this,

the High Court proceeded to examine the case on

merits and eventually allowed the appeal, set aside

the  judgment  of  the  first  Appellate  Court  and

restored  the  judgment/decree  of  the  Trial  Court.

The effect of the judgment of the High Court is that

the plaintiff's suit stands dismissed.

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16) The main question, which fell for consideration

before  the  High  Court,  was  whether  the  first

Appellate Court was right in remanding the case to

the Trial Court for fresh trial on merits?

17) There are three provisions in the Code which

deal  with  the  power  of  the  Appellate  Court  to

remand the case to the Trial Court. These provisions

are Order 41 Rules 23, 23-A, and 25.

18) So  far  as  Order  41 Rule  23 is  concerned,  it

enables the Appellate Court to remand the case to

the Trial  Court when it  finds that the Trial  Court

has disposed of the suit upon a preliminary point.

The Appellate Court in such cases is empowered to

direct  the  Trial  Court  to  decide  all  the  issues  on

evidence on record.

19) So far  as Rule 23-A is  concerned,  it  enables

the Appellate Court to remand the case to the Trial

Court when it finds that though the Trial Court has

disposed of the suit on all the issues but on reversal

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of  the  decree  in  appeal,  a  re-trial  is  considered

necessary by the Appellate Court.  

20) So far as Rule 25 is concerned, it enables the

Appellate Court to frame or try the issue if it finds

that it is essential to the right decision of the suit

and  was  not  framed  by  the  Trial  Court.  The

Appellate  Court  in  such  case  may,  accordingly,

frame the  issues  and  refer  the  same to  the  Trial

Court to take the evidence and record the findings

on such issues and return to the Appellate Court for

deciding  the  appeal.  In  such cases,  the  Appellate

Court retains the appeal to itself.  

21) Now coming to the facts of the case, we are of

the considered opinion that once the first Appellate

Court allowed the application under Order 41 Rule

27  of  Code  and  took  on  record  the  additional

evidence, it rightly set aside the judgment/decree of

the Trial Court giving liberty to the parties to lead

additional evidence in support of their case which,

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in turn, enabled the Trial Court to decide the civil

suit afresh on merits in the light of entire evidence.

The first Appellate Court was, therefore, justified in

taking  recourse  to  powers  conferred  on  the

Appellate  Court  under  Order  41  Rule  23-A  for

remanding the case to the Trial Court. We find no

fault in exercise of such power by the first Appellate

Court.

22) In our considered view, the only error which

the first Appellate Court committed was that it went

on to record the findings on merits. In our view, it

was not necessary to do so while passing the order

of  remand.   The  reason  is  that  once  the  first

Appellate Court formed an opinion to remand the

case, it was required to give reasons in support of

the remand order as to why the remand is called for

in the case.  Indeed, the remand was made only to

enable the Trial Court to decide the case on merits.

Therefore, there was no need to discuss much less

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record findings on several issues on merits.  It was

totally uncalled for.   

23) So far as the impugned order is concerned, the

High  Court,  in  our  view,  committed  jurisdictional

error  when  it  also  again  examined  the  case  on

merits  and  set  aside  the  judgment  of  the  first

Appellate  Court  and restored the judgment of  the

Trial Court. The High Court, in our opinion, should

not have done this for the simple reason that it was

only examining the legality of the remand order in

an  appeal  filed  under  Order  43  Rule  1(u)  of  the

Code.   Indeed,  once  the  High  Court  came  to  a

conclusion that the remand order was bad in law

then  it  could  only  remand  the  case  to  the  first

Appellate Court with a direction to decide the first

appeal on merits.  

24) The High Court failed to see that when the first

Appellate Court itself did not decide the appeal on

merits and considered it proper to remand the case

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to the Trial Court, a fortiori, the High Court had no

jurisdiction  to  decide  the  appeal  on  merits.

Moreover, Order 43 Rule 1(u) confers limited power

on the High Court to examine only the legality and

correctness  of  the  remand  order  of  the  first

Appellate  Court  but  not  beyond  that.  In  other

words, the High Court should have seen that Order

43 Rule 1(u) gives a limited power to examine the

issue relating to legality of remand order, as is clear

from Order 43 Rule 1(u) which reads thus:-

“1(u)  an order under rule 23 or rule 23A of Order XLI remanding a case, where an appeal would  lie  from the  decree  of  the  Appellate Court”

25) It  is  well  settled  law that  the  jurisdiction  to

decide the appeal on merits can be exercised by the

Appellate Court only when the appeal is filed under

Section 96 or 100 of the Code against the decree.

Such was not the case here.

26) In the light of abovementioned discussion, we

are  of  the  opinion  that  the  High  Court  had  no

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jurisdiction  to  consider  much  less  deciding  the

entire case of the parties on merits in such appeal.  

27) We  are  also  unable  to  agree  with  the  High

Court  when it  held  that  the  first  Appellate  Court

instead  of  remanding  the  case  to  the  Trial  Court

should  have  heard  the  appeal  on  merits.  This

finding,  in our view, is  bad in law for  the reason

that firstly, it was not possible for the first Appellate

Court to have recorded the evidence at the appellate

stage.  Secondly,  having  regard  to  the  nature  of

factual controversy involved and keeping in view the

nature of additional evidence filed which too needed

to  be  proved  in  evidence,  it  was  not  possible  to

retain the appeal to itself and invite finding only on

additional  evidence  by  taking  recourse  to  powers

under Rule 25; and lastly, wholesome remand, as

directed by the first Appellate Court, would enable

the Trial Court to appreciate the entire evidence in

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its proper perspective while deciding the suit afresh

on merits.

28) We  are  also  unable  to  agree  with  the  High

Court  when  it  reversed  the  finding  of  the  first

Appellate  Court,  in  so  far  as  it  pertained  to

application  filed  by  the  plaintiff  under  Order  41

Rule 27 of the Code. In our opinion, no fault could

be found in the finding of the first Appellate Court

on this issue for the following reasons:

29) First, the additional evidence sought to be filed

at the first appellate stage was held to be material

and necessary for  proper adjudication of the suit;

and second, the reasons as to why it could not be

filed during the trial also found acceptance to the

first Appellate Court.  

30) In order to enable the parties to have fair trial

in  civil  suit  and  with  a  view  to  do  substantial

justice, the first Appellate Court, in our view, rightly

allowed the plaintiff to file the additional documents

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in appeal which satisfied the requirements of Order

41 Rule 27 of the Code.

31) We  cannot,  therefore,  concur  with  the

reasoning and the conclusion arrived at by the High

Court in the light of reasoning mentioned above.

32) In view of foregoing discussion,  we allow the

appeal,  set  aside the impugned order of  the High

Court and restore that of the first Appellate Court

with modification as mentioned in para 22.

33) Liberty is granted to the defendants to file in

rebuttal  any  additional  evidence  before  the  Trial

Court in support of their case. The Trial Court will

allow  the  parties  to  lead  oral  evidence  to  prove

additional  documentary  evidence  and  then  decide

the  suit  afresh on  merits  strictly  on  the  basis  of

evidence  in  accordance  with  law  without  being

influenced  by  any  observations  made  by  the  first

Appellate Court, the High Court and this Court in

their respective orders passed in these proceedings.

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34) The  Trial  Court  shall  ensure  disposal  of  the

suit,  as  directed,  within  six  months  as  an  outer

limit.  Parties  to  appear  before  the  Trial  Court  on

01.05.2017 to enable the Trial Court to decide the

suit as directed above.  

                    ………...................................J.  [R.K. AGRAWAL]

                                                                …...……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; April  24, 2017  

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