Case: J. Balaji Singh Vs. Diwakar Cole

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.6. The respondents filed their respective written statements and denied the appellants 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 appellants 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 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.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.

Reasoning:
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.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 plaintiffs suit stands dismissed.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, 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 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 to the Trial Court, a fortiori, the High Court had no jurisdiction to decide the appeal on merits.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 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 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 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.