LexH.V. VEDAVYASACHAR versus SHIVASHANKARA & ANR.
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[2009] 12 S.C.R. 268 A H.V. VEDAVYASACHAR V. -+ ' SHIVASHANKARA & ANR. (Civil Appeal No. 5201 of 2009) AUGUST 3, 2009 B [S.B. SINHA AND DR MUKUNDAKAM SHARMA, JJ.] Code of Civil Proc,9dure, 1908 - 0.41 r. 27 - Suit for permanent and mar.datory injunction - Decreed - In appeal, c application for adducing additional evidence - Appellate court allowing the application remanding the matter to trial court for fresh disposal after recording the evidence - On appeal, Plea of maintainability of appeal, the suit being uls 6 of the Specific Relief Act - Held : Appeal was maintainable as suit was not D under Specific Relief Act - However, Appellate Court while allowing the application, could not have remanded the entire matter for disposal - It could have recorded or could have ~ directed the trial court to record the evidence - Direction ~ issued to trial court to transmit the case to appellate court after E recording the evidence - Specific Relief Act, 1963 - s. 6 Appellant filed a suit seeking permanent injunction and mandatory injunction against respondents. The suit was decreed. In appeal against the same, respondent- defendants filed an application under Order 41 r. 27 F C.P.C. seeking permission to adduce additional evidence. The application was allowed. Despite grant of various opportunities to adduce evidence the respondent failed to do so. Thereafter, lthe appellate Court remanded the matter to trial court for fresh disposal after recording G fresh evidence. Hence, the present appeal. Disposing of the appeal, the Court HELD: 1. It is not correct to say that the suit was H 268 , H.V. VEDAVYASACHAR v. SHIVASHANKARA & ANR. 269 instituted in terms of Section 6 of the Specific Relief Act, A 1963. Appellant has not only prayed for grant of a decree for permanent injunction but has also asked for passing a decree for mandatory injunction directing the respondents to handover possession to it. Such prayers would not come within the purview of Section 6 of the B Specific Relief Act. [Para 8) [272-H; 273-A-B] 2.1. High Court could not have directed the trial court to dispose of the suit after taking evidence. When an application for adducing additional evidence is allowed, C the appellate court has two options open to it. It may record the evidence itself or it may direct the trial court to do so. Such an order of remand could be only in terms of Order XU Rule 23, Order XU Rule 23A or Order XU Rule 25 CPC. None of the said provisions have any application in the instant case. [Paras 9 and 10) [273-E- D F] Shanti Devi and Ors. vs. Daropti Devi and Ors. (2006) 13 sec 775, relied on. 2.2. In modification of the impugned order, it is directed that trial court upon recording the evidence as directed by the High Court shall transmit the records to the First Appellate Court with a copy of its report annexed thereto. [Para 12) [274-C-D] Case Law Reference: (2006) 13 sec 775 relied on Para 11 CIVIL APPELLATE JURISDICTION : Civil Appeal No. E F 5201 of 2009. G From the Judgment & Order dated 29.10.2007 of the High Court of Karnataka at Bangalore in RFA No. 1966 of 2007. Balaji Srinivasan, Sudarsna Ojha, Dr. Maya Rao for the Appellants. H 270 SUPREME COURT REPORTS [2009] 12 S.C.R. , A C.G. Gopalsamy. T:S. Santhi, V. Balaji, Narendra Kumar .. • for the Respondents. The Judgment cif the Court was delivered by B S.B. SINHA J. 1. Leave granted. 2. The plaintiff is appellant before us. He filed a suit praying inter alia for the follciwing reliefs: "to grant a judgment and decree of a permanent " c injunction restraining the first and second defendants either by themselves or through anyone on their behalf from interfering in the plaintiffs right, title and interest over and in the suit scheduled property including creating documents alienating the property to others and award cost D and grant such other relief(s) as deemed fit and proper . under the circumstances in the interest of justice and equity." ., ~ 3. However, an application for leave to amend the plaint was filed which having been allowed; the prayers made in the E amended plaint read as under:- "(a) a judgment and decree of perpetual injunction against the defendants 1 to 3 directing the defendants to restore .., the possession of the schedule premises to the plaintiff F and not to intE~rfere in the plaintiffs lawful possession and enjoyment of the schedule property in any m
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