Page 1 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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Page 2 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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Page 3 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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Page 4 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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Page 5 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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Page 6 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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Page 7 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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Page 8 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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Page 9 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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Page 10 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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Page 11 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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Page 12 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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Page 13 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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Page 14 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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Page 15 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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Page 16 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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