The Corporation Of Madras And Another vs M. Parthasarathy And Others

The Corporation of Madras & Anr. ….Appellant(s)

VERSUS

M. Parthasarathy & Ors. …Respondent(s)

WITH

CIVIL APPEAL No.8185 OF 2018 (Arising out of S.L.P.(c) No. 21796 of 2018) (D.No.15579/2017)

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted in S.L.P.(c)

No………...D.No.15579/2017).

2) These appeals are directed against the final Signature Not Verified

judgment and order dated 09.10.2002 passed by Digitally signed by ANITA MALHOTRA Date: 2018.08.10 17:14:07 IST Reason: 1 the High Court of Madras in Second Appeal Nos.126

to 129 of 1997 and Writ Petition No.13097 of 1993

whereby the High Court dismissed the second

appeals filed by the appellants herein and allowed

the writ petition filed by the respondents herein.

3) In order to appreciate the issue arising in these

appeals, few relevant facts need to be mentioned

hereinbelow.

4) The appellants are the defendants whereas the

respondents are the plaintiffs in the civil suits out of

which these appeals arise.

5) The dispute relates to a land measuring about

3600 sq. ft. in Block No.15, Aminjikarai Village,

Pulla Reddy Avenue, Chennai (hereinafter referred

to as the “suit land”).

6) The respondents claiming to be the owners of

the suit land filed four civil suits bearing O.S.

Nos.2207 of 1992, 2345 of 1992, 2346 of 1992 and

2 2347 of 1992 against the appellants (defendants) in

the City Civil Court at Chennai for permanent

injunction.

7) The appellants on being served denied the

claims set up by the respondents by filing written

statement. Since all the four suits were between the

same parties and relate to one piece of land though

part of different four sale deeds and further there

was no multiplicity of causes of action, the Trial

Judge clubbed all the four suits for their analogous

disposal. The Trial Court accordingly framed

common issues on the basis of the pleadings.

Parties adduced their common evidence. The Trial

Court, by a common judgment/decree dated

24.09.1993, dismissed all the four suits filed by the

respondents with costs.

8) The plaintiffs (respondents herein) felt

aggrieved filed first appeals being A.S. Nos.338 to

3 341 of 1993 in the Court of 8th Additional District

Judge, Chennai. In the appeals, the plaintiffs filed

an application under Order 41 Rule 27 of the Civil

Procedure Code, 1908 (for short “the Code”) and

sought permission to adduce additional evidence in

support of their case (CMP No.1559/93).

9) By judgment/decree dated 17.12.1993, the

Additional District Judge allowed the application

filed under Order 41 Rule 27 of the Code thereby

permitting the plaintiffs (appellants before the first

Appellate Court) to file the additional evidence. The

Appellate Court then exhibited the additional

evidence as Exs. P­16 to P­20 and placing reliance

on the additional evidence tendered by the plaintiffs

for the first time at the appellate stage, allowed the

appeals, set aside the judgment and decree of the

Trial Court and decreed all the four civil suits filed

by the respondents against the appellants.

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10) The defendants (appellants herein) felt

aggrieved and filed second appeals in the High

Court. The plaintiffs (respondents herein) also filed

a writ petition in the High Court in relation to the

land in question. By impugned judgment, the High

Court dismissed the second appeals filed by the

defendants (appellants herein) and allowed the writ

petition filed by the respondents herein as a

consequence of dismissal of the appellants’ second

appeals and affirmed the judgment/decree passed

by the first Appellate Court. It is against this order

of the High Court, the defendants felt aggrieved and

filed the present appeals by way of special leave in

this Court.

11) Heard Mr. R. Basant, learned senior counsel

for the appellants and Ms. Aruna Prakash, learned

counsel for the respondents.

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12) Having heard the learned counsel for the

parties and on perusal of the written submissions

filed by the learned counsel for the respondents, we

are of the considered view that these appeals

deserve to be allowed in part on a short ground as

indicated infra.

13) It is an admitted fact that the respondents

(plaintiffs) had filed an application under Order 41

Rule 27 of the Code in their first appeals before the

first Appellate Court (CMP No.1559/93) praying

therein for production of additional evidence in

appeals. It is also an admitted fact that this

application was allowed and the additional evidence

was not only taken on record but also relied on by

the Appellate Court as Exs.P­16 to P­20 for

allowing the appeals filed by the respondents which,

in consequence, resulted in decreeing all the four

civil suits.

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14) In our considered opinion, the first Appellate

Court committed two jurisdictional errors in

allowing the appeals.

15) First, it took into consideration the additional

piece of evidence while deciding the appeals on

merits without affording any opportunity to the

appellants herein (who were respondents in the first

appeals) to file any rebuttal evidence to counter the

additional evidence adduced by the respondents

(appellants before the first Appellate Court). This

caused prejudice to the appellants herein because

they suffered the adverse order from the Appellate

Court on the basis of additional evidence adduced

by the respondents for the first time in appeal

against them. (See Land Acquisition Officer, City

Improvement Trust Board vs. H. Narayanaiah &

Ors., (1976) 4 SCC 9, Shalimar Chemical Works

Ltd. vs. Surendra Oil & Dal Mills (Refineries) &

7 Ors., (2010) 8 SCC 423 and Akhilesh Singh vs. Lal

Babu Singh & Ors., (2018) 4 SCC 759).

16) Second error was of a procedure which the

first Appellate Court failed to resort in disposing of

the appeals. This also involved a question of

jurisdiction.

17) Having allowed the CMP No.1559/1993 and, in

our opinion rightly, the first Appellate Court had

two options, first it could have either set aside the

entire judgment/decree of the Trial Court by taking

recourse to the provisions of Order 41 Rule 23­A of

the Code and remanded the case to the Trial Court

for re­trial in the suits so as to enable the parties to

adduce oral evidence to prove the additional

evidence in accordance with law or second, it had

an option to invoke powers under Order 41 Rule 25

of the Code by retaining the appeals to itself and

remitting the case to the Trial Court for limited trial

8 on particular issues arising in the case in the light

of additional evidence which was taken on record

and invite findings of the Trial Court on such

limited issues to enable the first Appellate Court to

decide the appeals on merits.

18) The first Appellate Court failed to take note of

both the above mentioned provisions and proceeded

to allow it wrongly.

19) Due to these two jurisdictional errors

committed by the first Appellate Court causing

prejudice to the appellants herein while opposing

the first appeals, the judgment rendered by the first

Appellate Court, in our opinion, cannot be

sustained legally on merits.

20) The High Court also while deciding the second

appeals failed to notice these two jurisdictional legal

errors which went to the root of the case. It is for

9 this reason, the impugned order also cannot be

legally sustained calling interference by this Court.

21) In the light of the foregoing discussion and

having regard to the totality of the facts of the case

and to enable the parties to have full and fair trial,

we consider it proper to take recourse to the powers

under Order 41 Rule 23­A of the Code and

accordingly set aside the judgment and decree of

the first Appellate Court to the extent it allows the

respondents’ appeals on merit but at the same time

uphold that part of the order which has allowed

CMP No.1559/1993 filed by the plaintiffs for

adducing additional evidence and remand the cases

to the Trial Court for re­trial of all the four civil

suits on merits afresh.

22) All parties to the four civil suits (appellants

and the respondents) are allowed to amend their

respective pleadings, if they wish to do so. The

10 appellants are allowed to adduce additional

evidence in rebuttal. Let the additional evidence

taken on record by the first Appellate Court be

remitted to the Trial Court for its proving in

evidence in accordance with law. The Trial Court, if

considered appropriate, can also frame additional

issues. Parties will be allowed to adduce their oral

and documentary evidence in addition to one

already adduced.

23) The Trial Court will then decide the suits

afresh on merits on the basis of entire evidence

without being influenced by any of the previous

orders/judgments rendered in this case including

this order because having formed an opinion to

remand the case for re­trial, we have refrained from

entering into the merits of the issues. Let the trial

be over within one year.

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24) In view of the foregoing discussion the appeals

succeed and are allowed. Impugned order is set

aside.

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

………...................................J. [S. ABDUL NAZEER] New Delhi;

August 10, 2018

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