THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 195 OF 2006 JUDGMENT: 1. This Civil Miscellaneous Appeal is preferred aggrieved by the judgment dated 28.11.2005 in Appeal Suit No.119 of 2003 on the file of the V Additional District Judge (Fast Track Court), Ranga Reddy. 2. The third respondent died during pendency of the C.M.A. and the second respondent, who is the legal heir of the third respondent, is already on record. 3. The appellant herein is the plaintiff and the respondents herein are defendants, in the suit. For sake of convenience, the parties are hereinafter referred to, as arrayed in the trial Court. 4. The brief facts that are necessary for disposal of the present appeal may be stated as follows. The plaintiff purchased plot no.201 admeasuring 300 square yards in survey no.62 of Uppal under registered sale deed dated 27.11.1984 from one P.Vara Laxmi Devi through her General Power of Attorney holder B.Ramesh, and since then, he had been in possession of the same. On 6.8.2000, when the plaintiff started constructing compound wall and engaged workmen for the purpose of digging trenches, the defendants 1 and 2, with the help of anti-social elements, came to the schedule land, trespassed into the plot and criminally intimated the plaintiff. Then, the plaintiff lodged a complaint with the police. On 12.8.2000, when the plaintiff was returning from suit schedule land, 7 persons threatened him with dire consequences if he proceeds with the construction. Therefore, he filed the suit for perpetual injunction. 5. The first defendant filed his written statement stating that the plaintiff is not the owner of the suit schedule plot and he was not in possession of the same, and that the alleged interference by the defendants over the possession of the plaint is imaginary. The first defendant purchased 200 square yards of land under registered sale deed from the predecessor-in-title P.Vara Laxmi Devi, and she also sold 200 square yards of land to P.Dayanandam and another and another 200 square yards to Dr.M.Kaladhar, under registered sale deeds. The abovesaid three plots are out of the plot bearing nos. 200 and 201 in survey no.62 admeasuring 600 square yards purchased by P.Vara Laxmi Devi from M.Kalyani. The first defendant and another purchased some land from P.Vara Laxmi Devi, and the first defendant sold the plot purchased by him to R.Sujatha and delivered the vacant possession to her. The said Smt. R.Sujatha also purchased 100 square yards of land and constructed compound wall around the entire 300 square yards of land purchased by her. The General Power of Attorney in favour of B.Ramesh is forged and fabricated with a view to grab the land. When R.Sujatha approached P.Vara Laxmi Devi, she denied execution of the General Power of Attorney in favour of B.Ramesh. The plaintiff has not approached the Court with clean hands and hence he is not entitled for perpetual injunction. Hence, the first defendant prayed to dismiss the suit. 6. The second defendant filed memo adopting the written statement of defendant no.1. The fourth defendant has not filed any written statement. 7. The defendants 1 and 3 filed additional written statement after amendment of plaint, stating that there was no whisper against the defendants 3 and 4 about their interference over the plaint schedule property and that the suit against the defendants 3 and 4 cannot be sustained, and without relief of declaration, mere suit for injunction is not maintainable. Therefore, they prayed to dismiss the suit. 8. Basing on the above pleadings, the trial court framed the following issues for trial. 1) Whether the plaintiff is absolute owner and possessor of suit property ? 2) Whether the plaintiff is entitled for perpetual injunction, as prayed for ? 3) to what relief ? 9. During trial, P.Ws. 1 to 7 were examined and Exs.A1 to A32 were marked, on behalf of the plaintiff. On behalf of defendants, D.Ws. 1 to 4 were examined and Exs.B1 to B10 were marked. 10. The trial Court, considering the oral and documentary evidence, came to the conclusion that the plaintiff purchased the plot under Ex.A1-sale deed and that he was in possession and enjoyment of the property, and accordingly granted perpetual injunction as prayed for. 11. On appeal, the appellate court, vide the impugned judgment, came to the conclusion that the trial Court has not properly appreciated the circumstances surrounding execution of Exs.A1 and A2 and accordingly set aside the judgment and decree of the trial Court and remanded the matter to the trial Court with a direction to restore the suit and record the evidence that may be adduced by both parties, particularly the evidence of P.Vara Laxmi Devi on behalf of the appellants therein/defendants. Challenging the same, the present appeal is preferred by the appellant/plaintiff. 12. Now, the point for determination is whether the judgment of the first appellate court is correct and proper ? 13. The learned counsel for the appellant contended that in a suit for injunction, the issue with regard to possession has to be decided and the question with regard to title need not be gone into; that the appellant/plaintiff acquitted title over the schedule property by adverse possession also as he was in continuous possession and enjoyment of the property for over 15 years; that in view of the long standing possession of the appellant/ plaintiff, he cannot be dispossessed except in accordance with law; that the order of remand would indicate conversion of the suit for permanent injunction into a title suit; that no opinion can be given in the suit with regard to the fabrication of Ex.A2; that the affidavit filed by P.Vara Laxmi Devi has not been considered, and therefore, he prays to set aside the order of remand passed by the first appellate court. 14. On the other hand, the learned counsel for the respondents contended that since the order passed by the first appellate court in the application filed by the defendants under Order XLI Rule 27 C.P.C. to receive additional evidence of P.Vara Laxmi Devi by examining her, has become final; that, when a petition to receive additional evidence is allowed, an opportunity must be given to the parties to adduce additional evidence; that even in a suit for perpetual injunction, title of the parties has to be gone into incidentally and that it is not the case of the appellant/plaintiff that he is in settled possession of the schedule property; that the first appellate court, after considering the evidence on record, rightly remanded the matter giving opportunity to the parties to adduce necessary evidence and there are no grounds to interfere with the impugned judgment. Hence, he prays to dismiss the C.M.A. 15. Grant or refusal of injunction is guided by three well established principles viz. (i) that the plaintiff has made out a prima facie case; (ii) that the balance of convenience is in his favour i.e. it would be greater inconvenience to the plaintiff if the injunction is not granted than the inconvenience which the defendant would be put to, if the temporary injunction is granted; and (iii) that the plaintiff suffers irreparable injury. 16. With regard to prima facie case, the court must be satisfied that there is a serious question to be tried at the hearing and that on the facts before the court, there is a probability that the plaintiff is entitled to the relief. With regard to balance of convenience, the court must compare the amount of mischief done or threatened to the plaintiff and must weigh the same against that inflicted by the injunction upon the defendant and see that the comparative mischief or inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it. Irreparable injury means that the injury must be material and substantial one, and not adequately reparable in damages. It cannot be measured by any known pecuniary standard. The plaintiff must show that injunction is necessary to protect him from irreparable injury and that mere inconvenience is not enough. 17. Order XLI Rule 23, as amended in Madras states, reads thus: “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.” The above provision makes it clear that in the interest of justice, to remand a case would arise only after the appellate court comes to the conclusion that the judgment and decree of the trial Court are not sustainable. On this aspect, the learned counsel for the appellant relied upon a decision in Devagiri Plantations Ltd., Nagercoil & another v. State of Tamilnadu,[1] wherein it is held thus: “..But, the conditions prescribed for the exercise of the power of remand under O.41 Rule 23, C.P.C. are mandatory and not a mere formality. To arrive at a finding on the material on record that the judgment of the trial Court is erroneous and is liable to be reversed or set aside is a condition precedent for the appellate court to pass an order of remand under O.41, Rule 23, C.P.C. …” 18. The learned counsel for the appellant also relied upon a decision in Natha Singh & others v. The Financial Commissioner, Taxation, Punjab & others[2], wherein it is held as follows: ( para 10) “So far as the application of the appellants for additional evidence is concerned, it cannot be allowed in view of the well settled principles of law that the discretion given to the appellate court to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in Order 41, Rule 27 of the Code of Civil Procedure. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. The true test to be applied in dealing with applications for additional evidence is whether the appellate court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced. In the instant case, we have not been able to experience any difficulty in rendering the judgment on the material already before us. Instead we feel that the prayer for adducing additional evidence has been made merely to fill up gaps on the basis of some revenue record which has been found by the Collector and the Commissioner to be spurious. So, from the above decision, it is clear that unless the case of a party comes under any one of the three clauses in Order XLI Rule 27 C.P.C., receipt of additional evidence is not automatic or routine. 19. The appellate court should not ordinarily remand a case to the trial Court and mere reception of additional evidence at the appellate stage will not, by itself, justify order of remand. With regard to remand of a case, it is pertinent to refer to a decision reported in Ashwin Kumar K.Patel v. Upendra J.Patel[3], wherein it is held thus: (para 7) “In our view, the High Court should not ordinarily remand a case under Order 41, Rule 23, C. P. C. to the lower Court merely because it considered that the reasoning of the lower Court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or other. It could have considered the various aspects of the case mentioned in the order of the trial Court and considered whether the order of the trial Court ought to be confirmed or reversed or modified. It could have easily considered the documents and affidavits and decided about the prima-facie case on the material available. In matters Involving agreements of 1980 (and 1996) on the one hand and an agreement of 1991 on the other, as in this case, such remand orders would lead to further delay and uncertainty. We are, therefore, of the view that the remand by the High Court was not necessary.” From the above decision, it is clear that when sufficient material is available on record before the appellate court, the appellate court ought to have decided the appeal in accordance with law. 20. The other decisions relied upon by the learned counsel for the appellant relate to granting injunction when a person is in settled possession of the property; or where there is no dispute with regard to title; or that possession as on the date of filing of the suit can be taken into consideration as one of the principles in granting injunction; or where there is a dispute with regard to title, incidentally deciding title of the parties with reference to the evidence. Therefore, those decisions relied upon by the learned counsel for the appellant apply to the merits of the case. But, in this appeal, the order of remand passed by the first appellate court is being challenged seriously. 21. In this case, except one point i.e. non-examination of Vara Laxmi Devi, the remaining evidence is available on record. But, without assigning any reasons of whatsoever, the first appellate court simply remanded the case giving liberty to examine the witnesses on behalf of the parties. Right to reason is an indispensable part of sound judicial system. Failure to give reasons amounts to denial of justice. I.A. No.543 of 2005 is filed by the respondents herein, before the first appellate Court under Order XLI Rule 27 C.P.C. for receiving additional evidence i.e. examination of Varalaxmi Devi as one of the witnesses on their behalf, and they also filed I.A. No.5890 of 2005 under Section 45 of the Indian Evidence Act, 1872 to thereafter send the deposition of said Varalaxmi Devi along with Ex.A2 to hand-writing expert for the purpose of comparison. Instead of examining Varalaxmi Devi in the first appellate court itself, the first appellate court, had opened pendoras box, giving blanket liberty to examine the witnesses on behalf of the defendants, which is uncalled for. As seen from the impugned judgment, Ex.A2 is the certified copy of registered General Power of Attorney alleged to have been executed by P.Varalaxmi Devi in favour of B.Ramesh, in which the said Varalaxmi Devi appears to have affixed her thumb impression. Unless original of Ex.A2 is summoned or called for from the possession of the party, question of sending Ex.A2 for the purpose of comparison with the admitted signatures of Varalaxmi Devi does not arise. 22. Further more, observation of the first appellate court in para 20 of its judgment is as follows: ‘The defendants also filed I.A. No.580/05 U/Sec.45 of Indian Evidence Act to send the deposition and cross-examination of Varalaxmi Devi in interlocutory petition and Ex.A2 to the hand-writing expert to know Ex.A2 bears her signature.’ But, the observation in para no.14 of judgment contradicts the above observation, which reads thus: “Ex.A2 shows that Varalaxmi Devi affixed her left thumb mark”. The above contradictory observations of the first appellate court would reveal that it has not applied its mind properly in deciding the points involved in the appeal. When Ex.A2 is not the original document and it is only a certified copy of the document, it cannot be sent to expert for comparison. Without considering these aspects, simply the first appellate court remanded the matter to the trial Court. The first appellate court ought to have considered the evidence available on record and decided the point. Further, if the first appellate court is of the opinion that examination of Varalaxmi Devi is necessary, it ought to have recorded her evidence and decided the point in the appeal, instead of setting aside the judgment and decree of the trial court and remanding the matter to the trial Court. Therefore, the impugned judgment of the first appellate court is set aside. The first appellate court is directed to dispose of the appeal in accordance with law, and if it considers that examination of Varalaxmi Devi is necessary, it shall record her evidence and decide the point involved in the appeal in accordance with law. It is also made clear that, before deciding the appeal, the first appellate court shall pass necessary orders in I.A. Nos. 543 of 2005 and 580 of 2005 in accordance with law after hearing both sides and thereafter decide the appeal on merits. 23. The Civil Miscellaneous Appeal is, accordingly, allowed. No costs. --------------------- (K.C.Bhanu, J.) .09.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 195 OF 2006 Date: .09.2010 Between: K.Harnadh Babu …appellant And B.V.Prasanna Kumar & others …Respondents THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL No. 195 of 2006 .09.2010 [1] 1993 MLJ 194 [2] AIR 1976 Supreme Court 1053 [3] AIR 1999 SC 1125