IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 FAO.No. 156 of 2005() ----------------------------------- AS.197/2001 of SUB COURT,THODUPUZHA .................... APPELLANT/RESPONDENTS: ---------------------------------------------- 1. JOSE, S/O.CHACKO, PARIYARATHUPUTHENPURAYIL KONICKAL HOUSE, THEKKUMKUTTY KARA, ALLI P.O. 2. FRANCIS, S/O.CHACKO, PARIYARATHUPUTHENPURAYIL(KONICKAL)HOUSE, KOOMPARA BAZAR P.O., KOODARANJI VILLAGE, KOZHIKODE TALUK. BY ADV. SRI.K.K.CHANDRAN PILLAI RESPONDENTS/ APPELLANTS: ------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, IDUKKI, PAINAVU. 2. THE ASST. ENGINEER, PWD ROAD SECTION, KARIMANNOOR. BY GOVERNMENT PLEADER SRI. BASANT BALAJI THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 15/01/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.PADMANABHAN NAIR, J = = = = ============ = = = = F.A.O. No. 156 OF 2005 = = = = = = = === = = = = = Dated this the 15th day of January, 2008. = = = = = = = = == = = = = = = = = = = J U D G M E N T The plaintiff in O.S.No.322/99 on the file of Munsiff Court, Thodupuzha is the appellant. This first appeal from order is filed challenging the order of remand passed by the lower appellate court, Todupuzha in A.S.No. 197/01. The following substantial questions of law were framed in the appeal at the time of admission. 1. Is not the Lower Appellate Court wrong in permitting the appellants to amend their pleadings and to adduce additional evidence without even a prayer or a petition seeking for amendment of the pleadings? 2. Is not the Lower Appellate court wrong in permitting amendment of the pleadings in the above case in view of the provision contained in the Proviso to Order 6 Rule 17 of the Code of Civil Procedure, substituted by Act 22 of 2002 which came into force with effect from 1.7.2002? 3. Whether the Lower Appellate Court is right in suo motu allowing amendment of the pleadings on the basis of additional documents produced at the appellate stage by the appellants in the Lower Appellate Court, in view of the fact that those documents were in existence and were in the possession and power of the defendants in the suit at the time when the written statement in the suit was filed by them and also at the time when the trial of the case was conducted? 4. Whether the admission of additional documents at the appellate stage by the lower Appellate Court is justified in the facts and circumstances of this case and also in view of the absence of proper affidavit and petition seeking for admission of the additional evidence? F.A.O. No. 156 OF 2005 2 5. Whether the lower Appellate Court is right in relying on the additional documents produced at the appellate stage without entering into a finding that those documents are necessary for an effective disposal of the suit? 6. Is not the Lower Appellate Court wrong in ordering remand of this case for the reason that the appellants before the lower Appellate Court may be able to prove the valid acquisition of plaint schedule property since they had ample opportunity in the trial court and since no evidence either oral or documentary were produced by them? 7. Can there be an order of remand for filling the lacuna left by defendants in the suit in respect of which the defendants have filed appeal before the lower Appellate Court in the above case? 2. The appellants who are brothers and sons of Chacko, filed O.S.No.322/99 for a decree for a permanent prohibitory injunction restraining the respondents from tress passing in to the suit property or from annexing any portion of the said property to the PWD road or from interfering in any manner with the peaceful possession and enjoyment of the appellants over the suit property. Three cents of land comprised in survey No.1534/1-4 of the Karikode Village and a building having 6 rooms situates in that property, originally belonged to Chacko, S/o. Ulahannan, father of the plaintiffs. He bequeathed the property to the plaintiffs under will No.61/83 of the Karikode Sub- Registry Office. From that day onwards, they are in absolute possession and enjoyment of the property. Prior to that date, their father was in possession. It was averred that the father of the F.A.O. No. 156 OF 2005 3 plaintiffs died on 7.11.1984. Out of the 6 rooms in the building, 4 rooms were let out to Joy Poovathinkal for running a furniture mart. The building is situated in ward No.18 of Thodupuzha Municipality and bears Nos. 239,240 and 241. It was also averred that the plaintiffs started residing in Kozhikode District from 1979. It was also averred that the suit property is situated on the southern side of Thodupuzha- Udumbannoor PWD road. Expansion work of the said road was undertaken by the PWD and work was in progress. On 24.6.99, the second defendant issued a notice to the tenant of the plaint schedule building to vacate the building within 12 hours as the PWD had decided to demolish the building. The defendants have no manner of right to evict the tenants from the suit property and they are entitled to be in possession as of right. Hence the suit for a decree for permanent prohibitory injunction. 3. The respondents filed a written statement denying all allegations raised in the written statement. It was contended that suit property and building were taken possession on 30.3.84 by the Revenue Authorities and handed over to PWD on the very same day under a Mahazar prepared by the village officer, Karikode. Title claimed by the plaintiffs was denied. PWD took over the building and land as per order in AS-3684/80 of Tahsildar, Thodupuzha. It was F.A.O. No. 156 OF 2005 4 contended that the defendants had every right to demolish the building. It was also contended that a notification regarding the taking over possession of the suit property was published in the Kerala Gazette. It was contended that plaintiff did not raised any dispute regarding the possession at any point of time and prayed for a dismissal of the suit. 4. Written statement was filed on 14.2.2001. Issues were framed on 3.4.2001 and the case was posted for steps to 29.6.2001. It was adjourned to 27.7.2001 and then to 19.9.2001 for evidence. On that day plaintiff and two witness were examined as PW1 to 3, A1 to A6 proved and marked. C1 and C1(a) were also marked. The arguments were heard on 22.9.2001. The suit was decreed. Challenging the decree and judgment in the suit, the defendants filed A.S. 197/2001. In the appeal the defendants/appellants filed I.A.No.1173/04 under Order XLI Rule 27 of CPC to admit additional documents in the appeal. The appellants filed a detailed counter affidavit to that application. The appellate court did not pass any order in I.A.No.1173/04. But discussed the relevancy of some of the documents produced by defendant/appellant. The defendant/appellant sought permission to amend written statement. Lower appellate court found that it was a fit case in which the State can be allowed to F.A.O. No. 156 OF 2005 5 amend the written statement to incorporate the plea that the property is situated in survey No. 1534/1-4. The lower appellate court set aside the decree and judgment passed by the Trial court and remanded the matter with a direction to afford an opportunity to both sides to amend their pleadings and adduce additional evidence. The lower appellate court directed the trial court to consider all the 12 documents which were produced before the appellate court. The trial court was directed to give an early verdict untrammelled by the observation made by the lower appellate court. Challenging that order of remand this appeal is filed. 5. Learned counsel appearing for the appellant argued that the procedure adopted by the lower appellate court is something unknown to law. It is argued that the defendants/appellants in the appeal filed a petition under Order XLI Rule 27 of CPC to which the plaintiffs had filed their objections. It is argued that the lower appellate court directed the trial court to consider all the 12 documents without allowing I.A.1173/04. It is also argued that even without a petition and merely based on an oral request the lower appellate court went wrong in holding that it is a fit case to allow the defendants to amend the written statement filed by them. The petition under Order XLI Rule 27 of CPC was filed on 29.10.2004. Not even a first order is F.A.O. No. 156 OF 2005 6 seen passed in that petition. But it contains an order 'receive'. The order is seen passed on 30.1.2007. Since it is a petition to adduce additional evidence, the lower appellate court ought to have considered the petition on its merits and passed appropriate orders. It is also interesting to note that there was no direction by the lower appellate court to the appellants to take back those documents and produce the same before the trial court. It did not pass an order to transmit those records along with the records of the trial court also. The trial court will not be in a position to consider these documents unless the defendants get back those documents and produce the same before the trial court. As I have already stated issues were framed on 3.4.2001 and the case was posted for steps on 29.6.2001 and then to 27.7.2001 and thereafter for evidence to 19.9.2001. On that day plaintiffs and defendants were present and plaintiffs and two witness were examined, documents marked. The case was posted for argument. There is nothing on record to show that the defendants submitted before the trial court that they do not propose to adduce any evidence. 6. Plaintiffs claimed possession over 3 cents of land and a building. Ext.A5 is a notice issued to the tenant of the plaintiffs asking him to vacate the building portion occupied by him. The specific F.A.O. No. 156 OF 2005 7 contention of the plaintiffs was that the building situates in their property. The contention of the State was that this plaint schedule property was acquired for widening of the public road. So, the point to be established that whether the 3 cents and building claimed by the plaintiffs were acquired for which a report of the commissioner and a survey plan with the assistance of a surveyor is necessary. The burden is on the plaintiff to prove that they are the owners in possession of the property covered by Ext.A3 notice. So a remand for the purpose of identifying the suit property is justified. The observations made by the lower appellate court regarding the relevancy of the documents produced by the defendants and also the direction to the trial court to permit the defendant to amend the written statement could have been avoided. But the view of the lower appellate court, one more opportunity can be afforded to the parties to prove their case is correct. So I do not find any reason to interfere with the order of remand. No substantial question of law arises in this appeal and the same is only to be disposed of confirming the same. 7. In the result, the FAO is disposed of in the following manner: The order of remand passed by the lower appellate court is sustained; but the direction issued by it are set aside. It is open to the F.A.O. No. 156 OF 2005 8 parties to file petition to amend the pleadings or adduce further evidence. If such petitions are filed, the trial court shall pass appropriate orders in accordance with law after hearing the parties. It is open to the defendants to get back the documents produced before the lower appellate court and produce the same before the trial court. If those documents are produced before the trial court, the relevancy and admissibility of the same shall be considered by the trial court in accordance with law. Parties are directed to appear before the court below on 28.2.2008. K.PADMANABHAN NAIR JUDGE. bkn/-