The Corporation of Madras & Anr. v. M. Parthasarathy & Ors.
ABHAY MANOHAR SAPRE, J. 1. Leave granted in S.L.P.(c)
No. 21796/2018 (D.No.15579/2017).
2. These appeals are directed against the final judgment and order
dated 09.10.2002 passed by 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 appe llants
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 responde nts
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 la nd
filed four civil suits bearing O.S. Nos.2207 of 1992, 2345 of 1992, 2346
of 1992 and 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 ana logous
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 file d first
appeals being A.S. Nos.338 to 341 of 1993 in the Court of 8 th Additional
District Judge, Chennai. In the appeals, the plaintiffs filed an application
under Order 41 Rule 27 of the Civil Procedure Code, 1908 (for sho rt
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“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 f irst Appellate
Court) to file the additional evidence. The Appellate Court then exhibited
the additional evidence as Exs. P-16 to P-20 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.
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 appeal s
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.
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 Appellat e Court as
Exs. P-16 to P-20 for allowing the appeals filed by the respondents
which, in consequence, resulted in decreeing all the four civil suits.
14. In our considered opinion, the first Appellate Court committed
two jurisdictional errors in allowing the appeals.
THE CORPORATION OF MADRAS & ANR. v.
M. PARTHASARATHY & ORS.[ABHAY MANOHAR SAPRE, J.]
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 appe als) 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 a dverse
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 v s. H.
Narayanaiah & Ors. , (1976) 4 SCC 9, Shalimar Chemical Works
Ltd. vs. Surendra Oil & Dal Mills (Refineries) & 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 als o 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 23-A of the Code and remanded the
case to the Trial Court for re-trial 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 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 b oth the
abovementioned 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
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the case. It is for 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 23-A of the Code and accordingly set aside the judgment
and decree of the first Appellate Court to the exte nt it allows the
respondents’ appeals on merit but at the same time uphold that pa rt 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 re-trial 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 appellants are allowed to adduce additional evidence in reb uttal.
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 al so frame
additional issues. Parties will be allowed to adduc e 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 re-trial, we have r efrained
from entering into the merits of the issues. Let the trial be ove r within
one year.
24. In view of the foregoing discussion the appeals succeed and
are allowed. Impugned order is set aside.
Ankit Gyan Appeals allowed.
THE CORPORATION OF MADRAS & ANR. v.
M. PARTHASARATHY & ORS.[ABHAY MANOHAR SAPRE, J.]