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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION   

CIVIL APPEAL NO. 9333   OF  2018  (Arising out of SLP(C) No.229 of 2018)  

 Uttaradi Mutt           …..Appellant(s)          

:Versus:    

Raghavendra Swamy Mutt       ....Respondent(s)    

J U D G M E N T  

A.M. Khanwilkar, J.  

1. This appeal arises from the judgment and decree dated  

14th November, 2017 passed by the High Court of Karnataka at  

Bangalore in R.S.A. No.100446 of 2015, whereby the High  

Court was pleased to set aside the judgment and decree  

passed by the First Appellate Court and also that of the trial  

Court and relegated the parties before the trial Court, by  

allowing three applications filed by the respondent/defendant  

under Order XLI Rule 27 of the Civil Procedure Code, 1908 (for

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short, “CPC”). The High Court directed the trial Court to decide  

the suit afresh by giving its findings in light of the additional  

evidence adduced. The operative part of the order passed by  

the High Court reads thus:  

“25. Therefore, this Court cannot decide the substantial  questions of law on which the said present second appeal  was admitted on 13.04.2016 at this stage and the matter  

deserves to go back to the trial Court by allowing the three  applications filed under Order 41 Rule 27 of the CPC. All the  three applications filed by the Defendant/Appellant-RSM  

under Order 41 Rule 27 of the CPC therefore, are allowed  and setting aside the order dated 22.04.2015 passed by the  

FAC in its entirety, because even otherwise it appears to be  self contradictory and vague partial injunction granted by  FAC, the matter is restored back to the learned trial Court to  

allow the said additional evidences to be placed on record  and allow the parties to prove and disprove the same in  

accordance with law and then re-decide the suit giving its  findings in the light of such additional evidence.    

In view of the long lapse of time, the trial Court is requested  to expedite the matter and decide the suit again  expeditiously.  

 The present appeal is accordingly disposed of. No costs. All  

I.As. are also disposed of.”      2. The central issue in this appeal is whether the High  

Court was justified in allowing the three applications filed by  

the respondent/defendant under Order XLI Rule 27 before the  

First Appellate Court. Furthermore, even if there was just and  

sufficient reason for allowing the three applications, was the  

High Court justified in relegating the parties before the trial

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Court and directing the trial Court to re-decide the suit by  

giving its findings in light of the additional evidence?   

 3. This case has a chequered history. Shorn of unnecessary  

details we propose to refer only to the facts relevant to decide  

this appeal. In the first appeal filed by the appellant/plaintiff  

before the Principal Senior Civil Judge & Chief Judicial  

Magistrate, Dharwad bearing R.A. No.124 of 2014 (Original  

R.A. No.14 of 2011 before the Court of Senior Civil Judge,  

Gangawathi) against the dismissal of the suit by the Additional  

Civil Judge, Gangawathi vide judgment and decree dated 18th  

June, 2011 in O.S. No.74 of 2010 (Original O.S. No.193 of  

1992), three applications under Order XLI Rule 27 for  

permission to produce additional evidence came to be filed by  

the respondent/defendant. The First Appellate Court  

considered the stated applications along with the first appeal  

preferred by the appellant/plaintiff. The First Appellate Court  

was pleased to dismiss the said applications preferred by the  

respondent/defendant; and allowed the appeal filed by the  

appellant/plaintiff on the basis of the evidence already

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brought on record before the trial Court. The suit filed by the  

appellant was decreed in part by the First Appellate Court. The  

operative order passed by the First Appellate Court dated 22nd  

April, 2015, reads thus:  

 “ORDER  

The Application filed by the Appellant under Order 41 Rule  

27 R/w Section 151 of the Code of Civil Procedure is  dismissed.   

The Application filed by the Appellant filed by the Appellant  under Order 14 Rule 5 R/w Section 151 of the Code of Civil  Procedure is dismissed.  

The Application filed by the Respondent under Order 14 Rule  5 R/w Section 151 of the Code of Civil Procedure is  

dismissed.  The Applications filed by the Respondent under Order 41  Rule 27 R/w Section 151 of the Code of Civil Procedure are  

dismissed.  The Application filed by the Respondent under Section 151  of the Code of Civil Procedure seeking survey of Sy.No.192 of  

Anegundi Village is dismissed.  The Application filed by the Respondent under Section 340  

of the Code of Criminal Procedure is dismissed.   The Appeal filed by the Appellant under Order 41 Rule 1 of  the Code of Civil Procedure is allowed in part. The Judgment  

and Decree dated 18-06-2011 passed by the Court of the  Addl. Civil Judge, Gangavathi in O.S.No.74/2010 are set-

aside.  The Suit of the Plaintiff is decreed in part. Subject to the  right, if any, of the Defendant Mutt to perform Aradhanas  

and Poojas of the Vrindavanas in the Suit property, the  Defendant is restrained by way of Perpetual Injunction from  interfering with the Plaintiff Mutt’s possession and  

enjoyment of the Suit property. It is hereby clarified that the  above said raider shall not be construed as declaring the  

right of the Defendant Mutt to perform Aradhanas and  Poojas.  Costs are made easy.  

The Office is directed to transmit a copy of the Judgment  and Decree to the trial Court along with LCR.”

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4. Aggrieved by the aforesaid decision, the  

respondent/defendant preferred a second appeal before the  

High Court, being R.S.A. No.100446 of 2015.   

 5. As aforesaid, for the nature of the order that we propose  

to pass and the issues to be answered in the present appeal,  

suffice it to observe that the second appeal, being R.S.A.  

No.100446 of 2015 filed by the respondent/defendant before  

the High Court of Karnataka at Bangalore, was finally decided  

vide impugned judgment dated 14th November, 2017. The High  

Court reversed the opinion of the First Appellate Court  

including the rejection of stated three applications filed by the  

respondent/defendant under Order XLI Rule 27 of CPC. The  

High Court instead allowed those applications and relegated  

the parties before the trial Court, as noted in the operative  

part of the impugned judgment extracted above.   

 6. As regards the first issue as to whether the High Court  

has recorded sufficient reasons for allowing the three  

applications for permission to produce additional evidence  

filed by the respondent/defendant under Order XLI Rule 27 of

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CPC before the First Appellate Court, the High Court has  

opined that the additional evidence sought to be brought on  

record, subject to proof, by the respondent/defendant,  

definitely, could have a material bearing on the issues involved  

in the suit and determining the rights of the appellant/  

plaintiff to claim injunction against the respondent/defendant  

on the basis of the total land being in their ownership or  

possession (whether it was 14 Acres 7 Guntas or 27 Acres 30  

Guntas). The High Court was of the view that it could change  

the entire basis of the rights of the respective parties and  

therefore such additional evidence sought to be produced by  

the respondent/defendant ought not to be shut out. The High  

Court noted that the First Appellate Court delivered a  

contrived judgment without analysing such additional  

evidence and otherwise also, it was a substantial cause for  

reaching just conclusions and for correct evaluation of the  

rights of the respective parties, satisfying the parameters of  

Order XLI Rule 27 of CPC. To buttress this conclusion, the  

High Court relied on the dictum in paragraph 49 of the  

decision of this Court in Union of India Vs. Ibrahim Uddin

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and Anr.1.  What essentially weighed with the High Court for  

showing indulgence to the respondent/defendant can be  

discerned from the observations in paragraph 17 of the  

impugned judgment which read thus:  

“17. Prima facie, this Court finds that the additional evidence  mostly in the form of Government letters and Orders could  have a major impact on the issues involved before the Courts  

below and therefore deserved to be considered by the Court  after being led and proved in accordance with law by  

concerned party. Merely because the order dated 07.09.1974  passed by Superintendent of Land Records became the  subject matter of order by the KAT and even this Court, it  

does not prevent the trial Court or the FAC to allow such  additional evidence taken on record and allow it to be proved  in accordance with law and then consider and weigh such  

evidence and then decide the issues in accordance with law.   Most of these documents were Government communication  

and Orders and were not in the control and possession of the  defendant-RSM and defendant-RSM being not a party before  KAT in the appeal filed by Vyasraja Mutt, the FAC should  

have allowed these Additional evidence which could have  helped it in completing the quest for truth and meet the ends  

of justice and deliver a correct judgment. The failure to do so  has resulted in serious miscarriage of justice. Without the  title and peaceful possession of the entire land of 27 Acres  

and 30 Guntas proved by the plaintiff/respondent-UM, in  the face of such contradicting Additional Evidence, the self  contradictory and vague injunction granted by FAC cannot  

be sustained.”  

 For that reason, the High Court  reversed the view taken by  

the First Appellate Court on the three applications preferred  

by the respondent/defendant under Order XLI Rule 27 of CPC  

                                                           1  (2012) 8 SCC 148

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and deemed it appropriate to relegate the parties to the trial  

Court.  

  7. According to the appellant, the High Court ought not to  

have interfered with the discretion exercised by the First  

Appellate Court in dismissing the three applications for  

permission to produce additional evidence preferred by the  

respondent/defendant. Furthermore, the reasons weighed  

with the High Court, in no case, satisfied the test for  

production of additional evidence predicated in Order XLI Rule  

27 of CPC.  

 8. This objection need not detain us as we are of the  

considered opinion that the First Appellate Court would have  

been within its jurisdiction to permit the party to the  

proceedings to produce additional evidence before it for full,  

complete and effectual adjudication of the proceedings. The  

purport of Order XLI Rule 27 of CPC has been considered by  

this Court in Union of India (supra). The Court adverted to  

the exposition made in earlier decisions of the Court from

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paragraphs 36 to 46 and summed up the proposition in  

paragraphs 47 and 48 as under:  

 “47. Where the additional evidence sought to be adduced  removes the cloud of doubt over the case and the evidence  has a direct and important bearing on the main issue in the  

suit and interest of justice clearly renders it imperative that  it may be allowed to be permitted on record, such application  

may be allowed.    48. To sum up on the issue, it may be held that an  

application for taking additional evidence on record at a  belated stage cannot be filed as a matter of right. The court  

can consider such an application with circumspection,  provided it is covered under either of the prerequisite  conditions incorporated in the statutory provisions itself. The  

discretion is to be exercised by the court judicially taking  into consideration the relevance of the document in respect  of the issues involved in the case and the circumstances  

under which such an evidence could not be led in the court  below and as to whether the applicant had prosecuted his  

case before the court below diligently and as to whether such  evidence is required to pronounce the judgment by the  appellate court. In case the court comes to the conclusion  

that the application filed comes within the four corners of  the statutory provisions itself, the evidence may be taken on  

record, however, the court must record reasons as on what  basis such an application has been allowed. However, the  application should not be moved at a belated stage.”  

 9. In the present case, the High Court has opined that the  

documents proposed to be produced by the  

respondent/defendant were official records and public  

documents which, if proved, could enable the Appellate Court  

to pronounce the judgment and do full, complete and effectual

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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.   

 10. In paragraphs 49-52 of the same reported decision of  

Union of India (supra), the Court dealt with the question of  

stage of consideration of applications under Order XLI Rule 27  

of CPC, in reference to earlier decisions of this Court. Be that  

as it may, on analyising the reasons recorded by the First  

Appellate Court for rejecting the three applications filed by the  

respondent/defendant under Order XLI Rule 27 of CPC and  

juxtaposing the same with the reasons recorded by the High  

Court for allowing those applications, in our opinion, the  

conclusion reached by the High Court on this count is  

impregnable.    

11. That takes us to the second contention raised by the  

appellant that even if there was sufficient ground for allowing  

the stated applications filed by the respondent/defendant for  

production of additional evidence, the genuineness and the

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contents of the additional documents would have to be proved  

by the party placing reliance thereon. As regards this plea, we  

find that the High Court has 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. We make it amply clear that  

by allowing the three applications filed by the  

respondent/defendant 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.   

 12. The further grievance of the appellant, however, is that  

the High Court, in any case, ought not to have relegated the  

parties before the trial Court with a direction to the trial Court  

to re-decide the suit. The respondent, however, would rely on

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the provisions of the amended Rule 23 of the CPC “as  

applicable to the State of Karnataka”. The same reads thus:  

 “23. Remand of case by Appellate Court:- “Where the  Court from whose decree an appeal is preferred has disposed  of the suit upon a preliminary point and the decree is  

reversed in appeal, or where the Appellate Court in  reversing or setting aside the decree under appeal  

considers it necessary in the interests of justice to  remand the case, the Appellate Court may by order remand  the case, and may further direct what issue or issues shall  

be tried in the case so remanded and whether any further  evidence shall or shall not be taken after remand, and shall  

send a copy of its judgment or order to the Court from whose  decree the appeal is preferred, with directions to re-admit the  suit under its original number in the register of civil suits,  

and proceed to determine the suit; the evidence, if any,  recorded during the original trial shall subject to all just  exceptions, be evidence during the trial after remand.”   

(emphasis supplied)  

13. Indeed, the provision as applicable to the State of  

Karnataka is not limited to the decree disposing of the suit on  

a preliminary point but also where the Appellate Court in  

reversing or setting aside the decree under appeal, considers it  

necessary, in the interest of justice, to remand the case.  

Notably, the Karnataka amendment has been introduced vide  

the Karnataka Gazette entry dated 5th November, 1959.  The  

effect of that provision is reinforced by Central Amendment Act

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104 of 1976 which introduced Rule 23-A. The said Rule 23-A  

reads thus:  

 “23-A. Remand in other cases.- Where the Court from  whose decree an appeal is preferred has disposed of the case  otherwise than on a preliminary point, and the decree is  

reversed in appeal and a re-trial is considered necessary, the  Appellate Court shall have the same powers as it has under  

rule 23.”      

14.  We say so because 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, which read thus:  

 “25. Where Appellate Court may frame issues and refer  them for trial to Court whose decree appealed from.-  Where the Court from whose decree the appeal is preferred  

has omitted to frame or try any issue, or to determine any  question of fact, which appears to the Appellate Court  

essential to the right decision of the suit upon the merits,  the Appellate Court may, if necessary, frame issues, and

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refer the same for trial to the Court from whose decree the  appeal is preferred and in such case shall direct such Court  

to take the additional evidence required;  And such Court shall proceed to try such issues, and shall  

return the evidence to the Appellate Court together with its  findings thereon and the reasons therefor [within such time  as may be fixed by the Appellate Court or extended by it from  

time to time].”    “26. findings and evidence to be put on record –  

Objections to finding- (1) Such evidence and findings shall  form part of the record in the suit; and either party may,  

within a time to be fixed by the Appellate Court, present a  memorandum of objections to any finding.    

(2) Determination of appeal.- After the expiration of the  period so fixed for presenting such memorandum the  

Appellate Court shall proceed to determine the appeal.”    

 15. 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.   

  16. The appellants have placed reliance on H.P.  

Vedavyasachar Vs. Shivashankara and Anr.2, which has  

also considered the decision in Shanti Devi Vs. Daropti  

Devi3. In the case of H.P. Vedavyasachar (supra), it was  

                                                           2  (2009) 8 SCC 231  3  (2006) 13 SCC 775

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specifically contended that no case was made out to adduce  

additional evidence and in that event, the entire case could not  

have been remanded to the trial Court for fresh disposal after  

recording fresh evidence as it was not a case envisaged under  

Order XLI Rule 23 of CPC. This contention has been  

considered in paragraphs 7 to 10 of the said decision, in the  

following words:   

“7. However, so far as the second contention raised by the  

learned counsel for the appellant is concerned, in our  opinion, the same has substance. When an application for  adducing additional evidence is allowed the appellate  

court has two options open to it. It may record the  evidence itself or it may direct the trial court to do so.  

 8. Order 41 Rule 28 CPC reads as under:  “28. Mode of taking additional evidence.—Wherever  additional evidence is allowed to be produced, the appellate  court may either take such evidence, or direct the Court  

from whose decree the appeal is preferred, or any other  subordinate court, to take such evidence and to send it when  taken to the appellate court.”  

For the aforementioned purpose, in our considered  opinion, the High Court could not have directed the trial  court to dispose of the suit after taking evidence. Such  

an order of remand could be only in terms of Order 41  Rule 23, Order 41 Rule 23-A or Order 41 Rule 25 of the  

Code. None of the said provisions have any application in  the instant case.    

9. This Court in Shanti Devi v. Daropti Devi1 has held as  under: (SCC p. 778, para 13)  

“13. But the same by itself could not be a ground for  remitting the entire suit to the learned trial Judge upon  setting aside the decree of the learned trial court. The  

power of remand vests in the appellate court either in  terms of Order 41 Rules 23 and 23-A or Order 41 Rule 25

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of the Code of Civil Procedure. Issue 4 was held to have  been wrongly framed. Onus of proof was also wrongly placed  

and only in that view of the matter the High Court thought it  fit to remit it to the learned trial Judge permitting the parties  

to adduce fresh evidence. It, therefore, required the learned  trial Judge to determine a question of fact, which according  to it was essential, upon reframing the issue.”  

 10. None of the aforementioned provisions were available to  the High Court. We, therefore, in modification of the order  

passed by the High Court direct as under:  (i) The learned trial court upon recording the evidence as  directed by the High Court shall transmit the records to the  first appellate court with a copy of its report annexed  thereto.  

(ii) Such an exercise by the learned trial court must be  completed within a period of four weeks from the date of  

communication of this order.    (iii) The first appellate court must dispose of the first appeal  on receipt of the said order as also the evidence as adduced  as expeditiously as possible and not later than eight weeks  

from the date of receipt of the said report.    We are passing the order keeping in view the fact that the  

appellant is said to have been dispossessed as far back as in  1993.”  

(emphasis supplied)    

 17.  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, is 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

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hearing the first appeal, had it allowed the applications under  

Order XLI Rule 27 of CPC by the respondent/defendant. 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.  

It may be useful to advert to Rules 28 & 29 of Order XLI of  

C.P.C. The same read thus:  

“28. Mode of taking additional evidence.- Wherever  

additional evidence is allowed to be produced, the Appellate  Court may either take such evidence, or direct the Court  from whose decree the appeal is preferred, or any other  

subordinate Court, to take such evidence and to send it  when taken to the Appellate Court.”   “29. Points to be defined and recorded.- Where additional  

evidence is directed or allowed to be taken, the Appellate  Court shall specify the points to which the evidence is to be  

confined, and record on its proceedings the points so  specified.”  

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

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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. And on receipt of the report, the High Court  

could then consider the substantial questions of law already  

framed while admitting the second appeal and finally decide  

the same on all issues.   

 18. 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, it  

would be appropriate that the High Court frames the points on  

which additional  evidence could be adduced by the  

respondent/defendant 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

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evidence to the High Court together with its findings thereon  

and reasons thereof within the prescribed time. Such a course  

would meet the ends of justice.   

 19. Accordingly, we set aside the impugned judgment and  

order of the of the High Court in part, to the extent that it has  

relegated the parties before the trial Court for re-deciding the  

suit  after allowing the respondent/defendant to produce  

additional evidence in accordance with law.  Instead, the  

appeal is restored to the file of the High Court to its original  

number.  The High Court shall frame points on which  the  

additional evidence is allowed to be produced and direct the  

First Appellate Court to take the additional  evidence on record  

in accordance with law and then return the evidence to the  

High Court together with its findings thereon and the reasons  

thereof, within the prescribed time. Such directions be issued  

by the High Court expeditiously, preferably within two months  

from today. On receipt of the said report from the First  

Appellate Court, the High Court may then consider the Second  

Appeal on the substantial questions of law already framed or

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such other substantial questions of law that may arise for its  

consideration.    

20. The appeal and the accompanying application are  

disposed of in the aforementioned terms with no order as to  

costs.    

.………………………….CJI.        (Dipak Misra)   

…………………………..….J.                (A.M. Khanwilkar)  

…………………………..….J.               (Dr. D.Y. Chandrachud)  

New Delhi;  

September 26, 2018.