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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 920 OF 2008

 Union of India         Appellant(s)

VERSUS

K.V. Lakshman & Ors. Respondent(s)

J U D G M E N T

                 Abhay Manohar Sapre, J.

   1) This  appeal  is  filed  against  the  final  judgment

and  order  dated  24.06.2003  of  the  High  Court  of

Karnataka  at  Bangalore  in  R.F.A.  No.  933  of  2002

whereby the High Court dismissed the appeal filed by

the  appellant  herein,  in  consequence,  affirmed  the

judgment and decree dated 11.12.2001 passed by the

Ist Additional City Civil and Sessions Judge, Bangalore

in O.S. No. 5588 of 1976.

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2) In order to appreciate the controversy involved in

the  appeal,  which  lies  in  a  narrow  compass,  it  is

necessary to state few relevant facts.

3) The appellant - Union of India (Divisional Railway

Manager,  Bangalore)  is  the  plaintiff  whereas  the

respondents are the defendants in the suit.

4) The dispute in this case relates to a plot of land

situated  near  Krishnarajapuram  Railway  Station,

which is  around 14 KMs away from Bangalore  city-

details  of  which are mentioned in the  plaint  (herein

after referred to as "the suit land”).

5)  The appellant filed the suit bearing Civil Suit No.

5588/1976 against the respondents in the Court of Ist

Additional City Civil and Session Judge, Bangalore for

a declaration that they (appellant)  are the owners of

the  suit  land  and  that  the  respondents  whose

ancestral claims to have interest in the suit land have

no  right,  title  and  interest  in  the  suit  land.  The

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appellant in order to prove their title over the suit land

filed certain documents.

6) The  respondents  filed  their  written  statements

and while denying the appellant’s title asserted their

own title over the suit land through their predecessors.

According  to  them,  their  predecessors  acquired

occupancy rights under the State Tenancy Laws over

the suit land in revenue proceedings. It was contended

that  by  virtue  of  these  proceedings,  their  ancestral

acquired  superior  title  over  the  suit  land  to  the

exclusion of every one including the appellant and the

same  devolved  on  them  after  the  death  of  their

predecessor in title. The respondents also raised a plea

that the suit is barred by limitation. The Trial Court on

the basis of the pleading framed issues arising in the

civil suit.  Parties adduced evidence.

7) Therefore,  the  dispute  that  essentially  arose

between the parties was who is the owner of the suit

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land-the  appellant  (Union  of  India-Railways)  or  the

respondents’  predecessor in title?

8) The  Trial  Court  vide  judgment/decree  dated

11.12.2001 dismissed the suit on two grounds. It was

held that the suit is barred by limitation. It was further

held  that  the  plaintiff  (the  appellant)  failed  to  prove

their  title  over  the  suit  land  for  want  of  adequate

evidence  whereas  the  defendants  (respondents)  were

able to prove their title over the suit land.

9) The  appellant,  felt  aggrieved,  filed  first  appeal

before  the  High  Court.  In  the  appeal,  the  appellant

filed  an  application  under  Order  41  Rule  27  of  the

Code of Civil Procedure, 1908 (hereinafter referred to

as  “the  Code”)  and  sought  permission  to  adduce

additional  evidence  in  support  of  their  case.  The

additional evidence  inter alia consisted of documents

issued  by  the  State  Land  Revenue  department  in

relation to the suit land. According to the appellant,

these  documents  were  relevant  and  material  for

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deciding the ownership issue and if properly examined

along  with  the  documents  already  filed  in  the  suit,

would establish the appellant's title over the suit land

to  the  exclusion  of  every  one  including  the

respondents.  It was further alleged that the appellant

was not able to file these documents in the Trial Court

because firstly,  these documents were old; Secondly,

the appellants came to know of these documents after

the decision was rendered in the civil suit; and lastly,

since the documents were traced recently with great

difficulty and being in the nature of public documents,

the appellant be allowed to file them so as to enable

the Court to properly decide the issue of ownership in

relation to the suit land.

10) The learned Single Judge, by impugned judgment

running into 50 pages, dismissed the appellant's first

appeal  in  limine and,  in  consequence,  upheld  the

judgment/decree  of  the  Trial  Court.   The  learned

Single  Judge also  dismissed the  application filed  by

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the  appellant  under  Order  41  Rule  27  of  the  Code

holding  that  firstly,  the  cause  mentioned  in  the

application as to why the additional evidence could not

be filed in the civil suit before the Trial Court is not

sufficient cause and secondly, the additional evidence

sought to be tendered is neither material nor relevant.

Felt aggrieved, the plaintiff has filed this appeal by way

of special leave before this Court.

11) Heard Mr.  S.N.  Terdal,  learned counsel  for  the

appellant  and  Mr.  Girish  Ananthamurthy,   learned

counsel for the respondents.

12) Learned counsel for the appellant while assailing

the legality and correctness of the impugned judgment

urged  several  grounds and submitted  that  the  High

Court  (Single  Judge)  erred  in  dismissing  the

appellant's  first  appeal  in  limine,  so  also  erred  in

dismissing the application filed under Order 41 Rule

27 of the Code.  

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13) Firstly,  learned  counsel  urged  that  the  appeal

being in the nature of first appeal under Section 96 of

the Code should have been admitted for final hearing

almost as of right unlike the second appeal which is

not admitted for final hearing unless it involves some

substantial  question  of  law.  Learned  counsel  urged

that had the appeal been admitted for final hearing,

then the High Court would have been able to go into

all  questions  of  facts  and  law  in  its  first  appellate

jurisdiction  by  party  and  come  to  a  conclusion

different from that of the Trial Court.

14) Secondly,  learned  counsel  urged  that  since  a

right to file the first appeal is a valuable legal right,

such right could not be taken away by the High Court

in a casual manner by dismissing the appellant's first

appeal in limine.  

15)  Thirdly,  learned  counsel  urged  that  both  the

Courts below erred in dismissing the appellant's suit

on  the  ground  of  limitation  and  on  the  ground  of

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insufficiency of evidence adduced by the appellant to

prove  their  ownership  over  the  suit  land.  Both  the

findings,  according  to  learned  counsel,  are  factually

and legally  unsustainable  and against  the  record  of

the case.

16) Fourthly,  learned  counsel  urged  that  the  High

Court further erred in rejecting the application made

by the appellant under Order 41 Rule 27 of the Code.

According  to  learned  counsel,  the  application  made

under Order 41 Rule 27 deserved to be allowed on the

grounds set out therein as also keeping in view the

nature of documents filed along with the application.

Learned  counsel  pointed  out  that  the  additional

evidence  sought  to  be  adduced  was  relevant  for

deciding the issue of ownership of the parties over the

suit land and hence, the same should have been taken

on record of the case for determining the ownership

rights of the parties in accordance with law.

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17) Fifthly,  learned  counsel  pointed  out  that  the

approach  of  the  High  Court  while  dismissing  the

application was faulty because the High Court  while

considering  the  application  virtually  appreciated  the

additional  evidence  on  merits  and  found  that  the

documents  were  not  relevant.  Such  approach

according to learned counsel  was not  permissible at

the time of considering the application.

18) In  reply,  learned  counsel  for  the  respondents

supported the impugned judgment and prayed for its

upholding. According to learned counsel, no case was

made out to interfere in the impugned judgment.

19) Having heard the learned counsel for the parties

and on perusal of the record of the case, we find force

in the submissions urged by the learned counsel for

the appellant.

20) As rightly argued by the learned counsel for the

appellant, the High Court should not have dismissed

the appeal in  limine  but in the first instance should

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have  admitted  the  appeal  and  then  decided  finally

after serving notice of the appeal on the respondents.  

21) We  also  find  from the  record  that  on  the  one

hand, the learned Judge observed that the appeal has

“absolutely no arguable point" and on the other hand to

support these observations, the learned Judge devoted

50 pages. This itself indicated that the appeal involved

arguable points.  

22) It is a settled principle of law that a right to file

first appeal against the decree under Section 96 of the

Code  is  a  valuable  legal  right  of  the  litigant.  The

jurisdiction of the first appellate Court while hearing

the first appeal is very wide like that of the Trial Court

and it is open to the appellant to attack all findings of

fact or/and of law in first appeal. It is the duty of the

first appellate Court to appreciate the entire evidence

and may come to a conclusion different from that of

the Trial Court.

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23) Similarly, the powers of the first appellate Court

while deciding the first appeal are indeed well defined

by various judicial pronouncements of this Court and

are, therefore, no more  res integra.   It is apposite to

take note of the law on this issue.

24) As far  back in 1969,  the learned Judge – V.R.

Krishna Iyer, J (as His Lordship then was the judge of

Kerala  High  Court)  while  deciding  the  first  appeal

under Section 96 of the CPC in  Kurian Chacko vs.

Varkey Ouseph, AIR  1969 Kerala 316, reminded the

first  appellate  Court  of  its  duty  to  decide  the  first

appeal. In his distinctive style of writing with subtle

power of expression, the learned judge held as under:  

“1.  The  plaintiff,  unsuccessful  in  two Courts,  has come up here aggrieved by the dismissal  of  his  suit  which  was  one  for declaration  of  title  and  recovery  of possession.  The  defendant  disputed  the plaintiff's  title  to  the  property  as  also  his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded findings against the plaintiff both on title and possession.  But,  in  appeal,  the  learned Subordinate  Judge  disposed  of  the  whole matter glibly and briefly, in a few sentences. 2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled

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to  a  full  and  fair  and  independent consideration of the evidence at the appellate stage.  Anything  less  than  this  is  unjust  to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short  of  what is  expected of  him as an appellate  Court.  Although  there  is  furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation…..”

       (Emphasis supplied)

25) This  Court  also  in  various cases  reiterated the

aforesaid principle and laid down the powers of  the

appellate  Court  under  Section 96 of  the Code while

deciding the first appeal.

26) We consider it  apposite to refer to some of the

decisions.   

27) In  Santosh  Hazari  vs.  Purushottam  Tiwari

(Deceased) by L.Rs. (2001) 3 SCC 179, this Court held

(at pages 188-189) as under:

“.……..the appellate court has jurisdiction to reverse  or  affirm  the  findings  of  the  trial court. First appeal is a valuable right of the parties  and  unless  restricted  by  law,  the whole case is therein open for rehearing both on questions of fact and law. The judgment of the  appellate  court  must,  therefore,  reflect its conscious application of mind and record findings  supported  by  reasons,  on  all  the issues arising along with the contentions put forth, and pressed by the parties for decision of  the  appellate  court……while  reversing  a

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finding of fact the appellate court must come into  close  quarters  with  the  reasoning assigned by the trial court and then assign its own  reasons  for  arriving  at  a  different finding. This would satisfy the court hearing a further appeal that the first appellate court had  discharged  the  duty  expected  of it…………”  

28) The  above  view was  followed by  a  three-Judge

Bench decision of this Court in Madhukar & Ors. v.

Sangram & Ors.,(2001) 4 SCC 756, wherein it was

reiterated that sitting as a court of first appeal, it is

the duty of the High Court to deal with all the issues

and the evidence led by the parties before recording its

findings.

29) In  H.K.N.  Swami v.  Irshad  Basith,(2005)  10

SCC 243, this Court (at p. 244) stated as under: (SCC

para 3)

“3. The first appeal has to be decided on facts  as  well  as  on law.  In  the first  appeal parties  have the right to be  heard both on questions of law as also on facts and the first appellate court is required to address itself to all  issues  and  decide  the  case  by  giving reasons.  Unfortunately,  the  High  Court,  in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court  to  deal  with  all  the  issues  and  the

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evidence led by the parties before recording the finding regarding title.”

30) Again in Jagannath v. Arulappa & Anr., (2005)  

12 SCC 303, while considering the scope of Section 96 of  

the Code of Civil Procedure, 1908, this Court (at pp.  

303-04) observed as follows: (SCC para 2)

“2.  A court of  first  appeal can reappreciate the entire evidence and come to a different conclusion……...”

31) Again  in  B.V  Nagesh  &  Anr. vs.  H.V.

Sreenivasa Murthy, (2010) 13 SCC 530, this Court

taking note of all the earlier judgments of this court

reiterated  the  aforementioned  principle  with  these

words:

“3. How the regular first  appeal is  to be disposed of by the appellate court/High Court has been considered by this Court in various decisions.  Order 41 CPC deals with appeals from  original  decrees.  Among  the  various rules, Rule 31 mandates that the judgment of the appellate court shall state:

(a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d)  where  the  decree  appealed  from  is

reversed  or  varied,  the  relief  to  which  the appellant is entitled.

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4. The appellate court has jurisdiction to reverse  or  affirm  the  findings  of  the  trial court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the  appellate  court  must,  therefore,  reflect its conscious application of mind and record findings  supported  by  reasons,  on  all  the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led  by  the  parties  before  recording  its findings. The first appeal is a valuable right and the parties have a right to be heard both on  questions  of  law  and  on  facts  and  the judgment  in  the  first  appeal  must  address itself  to  all  the  issues  of  law and fact  and decide it by giving reasons in support of the findings.  (Vide  Santosh  Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188,  para  15  and  Madhukar v.  Sangram, (2001) 4 SCC 756 at p. 758, para 5.)

5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In  our  view,  the  judgment  under  appeal  is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of  the  judgment  in  the  regular  first  appeal shows that it falls short of considerations which are  expected  from  the  court  of  first  appeal. Accordingly,  without  going  into  the  merits  of the  claim  of  both  parties,  we  set  aside  the impugned  judgment  and  decree  of  the  High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law.”

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32) The  aforementioned  cases  were  relied  upon  by

this  Court  while  reiterating  the  same  principle  in

State  Bank  of  India  &  Anr. vs.  Emmsons

International Ltd. & Anr., (2011) 12 SCC 174.

33) This takes us to the next question in relation to

the  application filed under  Order  41 Rule  27 of  the

Code.  In  our  considered  view,  the  High  Court

committed  another  error  when  it  rejected  the

application filed by the appellant under Order 41 Rule

27  of  the  Code.  This  application,  in  our  opinion,

should have been allowed for more than one reason.  

34) First, there was no one to oppose the application.

In other words, the respondents were neither served

with  the  notice  of  appeal  and  nor  served  with  the

application  and  hence  they  did  not  oppose  the

application.  Second,  the  appellant  averred  in  the

application as to why they could not file the additional

evidence earlier in civil suit and why there was delay

on their part in filing such evidence at the appellate

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stage.  Third,  the  averments  in  the  application  were

supported  with  an  affidavit,  which  remained

un-rebutted.  Fourth,  the  application  also  contained

necessary averment as to why the additional evidence

was necessary to decide the real controversy involved

in appeal. Fifth, the additional evidence being in the

nature of public documents and pertained to suit land,

the same should have been taken on record and lastly,

the appellant being the Union of India was entitled to

legitimately claim more indulgence in such procedural

matters  due  to  their  peculiar  set  up  and  way  of

working.  

35) It was for all  these reasons, we are of the view

that the application filed by the appellant under Order

41 Rule 27 of the Code deserved to be allowed and is

accordingly allowed by permitting the appellant to file

additional evidence.  

36) Learned  counsel  for  the  respondents,  however,

contended that the additional evidence is not relevant

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for  deciding the appeal/suit.  He also urged that the

appellant has not pleaded any cause as required under

Order 41 Rule 27 to file such evidence at the appellate

stage. We are not impressed by this submission in the

light of  the reasons given supra.  This submission is

accordingly rejected.  

37) Order 41 Rule 27 of the Code is a provision which

enables the party to file additional evidence at the first

and second appellate stage. If  the party to appeal is

able  to  satisfy  the  appellate  Court  that  there  is

justifiable  reason for  not  filing such evidence at the

trial stage and that the additional evidence is relevant

and  material  for  deciding  the  rights  of  the  parties

which  are  the  subject  matter  of  the  lis,  the  Court

should allow the party to file such additional evidence.

After all, the Court has to do substantial justice to the

parties. Merely because the Court allowed one party to

file additional  evidence in appeal would not by itself

mean that the Court has also decided the entire case

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in his favour and accepted such evidence. Indeed once

the  additional  evidence  is  allowed  to  be  taken  on

record, the appellate Court is under obligation to give

opportunity to the other side to file additional evidence

by way of rebuttal.

38) Coming to the case,  since we have allowed the

application  made  by  the  appellant  under  Order  41

Rule 27 of the Code and has permitted the appellant to

file  additional  evidence  then  as  a  necessary

consequence, the impugned order has to be set aside

and  respondents  are  granted  an  opportunity  to  file

additional evidence in rebuttal, if they so wish to file.  

39) The other inevitable consequence is that the case

has  to  be  remanded  either  to  the  High  Court  for

deciding the appeal  afresh on merits or  to the Trial

Court  for  deciding the  civil  suit  afresh on merits  in

accordance with law.

40) Having regard to the nature of controversy and

the manner in which the suit/appeal was decided, we

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consider  it  appropriate,  in the interest of  parties,  to

remand  the  case  to  the  Trial  Court  (District  and

Sessions Judge, Bengaluru) for deciding the civil suit

afresh on merits in accordance with law.  

41) In  view  of  foregoing  discussion,  the  appeal

succeeds and is allowed. The impugned judgment and

also the judgment/decree passed by the  Trial  Court

are set aside.  

42) The civil suit is now restored to its file.  The Trial

Court, i.e., District and Sessions Judge Bengaluru, is

directed to retry the civil suit on merits. The additional

evidence filed by the appellant is taken on record. The

respondents  are  afforded  an  opportunity  to  file

additional evidence in support of their case in rebuttal.

The parties are at liberty to amend their pleadings in

case,  if  they  so  wish and further  adduce  additional

oral  evidence  in  support  of  their  respective  case  in

addition to what has already been adduced and prove

the documents filed at the appellate stage.

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43) While trying the civil suit, the Court may in its

discretion or at the instance of any party, as the case

may  be,  consider  appointing  Court  Commissioner

preferably any retired government revenue official by

taking recourse to the provisions of  Order 26 of the

Code  to  undertake  spot  inspection  of  the  suit  land

with  a  view  to  verify  its  exact  location,  area,

boundaries etc. keeping in view the evidence on record

in relation to the suit land.  

44) The Trial Court shall decide the civil suit strictly

in accordance with law on the basis of pleadings and

the evidence adduced by the parties uninfluenced by

any  observations,  reasoning  and  the  findings  of  the

two Courts below which stand now set aside.  

45) We may also clarify that we have refrained from

recording any finding either way on the merits.

46) Since  the  civil  suit  is  quite  old,  we  direct  the

District and Sessions Judge Bengaluru to decide the

civil suit expeditiously and preferably within 6 months

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from the date of party’s appearance before him. Parties

to  appear  before  the  District  and  Sessions  Judge

Bengaluru on 01.08.2016.  

47) The original record of the case, if  requisitioned,

be  sent  forthwith  to  the  Trial  Court  (District  and

Sessions  Judge,  Bengaluru)  so  as  to  reach  to  the

Court concerned before the date of parties appearance.

48) No costs.

                                    .……...................................J.                     [ABHAY MANOHAR SAPRE]                  

                    ………..................................J.                      [ASHOK BHUSHAN]

New Delhi, June 29, 2016.

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