JOSE versus JOHNSON

Citation: [2020] 2 S.C.R. 975 · Decided: 02-03-2020 · Supreme Court of India · Bench: INDIRA BANERJEE · Disposal: Appeal(s) allowed

Judgment (excerpt)

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975
JOSE
v.
JOHNSON
(Civil Appeal No. 1892 of 2020)
MARCH 02, 2020
[INDIRA BANERJEE AND A. S. BOPANNA, JJ.]
Suit – Permanent prohibitory injunction – Claim for – Plaintiff
-respondent filed suit for permanent prohibitory injunction in respect
of the suit property – The defendant-appellant disputed the claim
of the plaintiff – The Trial Court decreed the suit – The First Appellate
Court on reappreciating the matter, set aside the judgment of the
Trial Court and remanded the suit to the Trial Court for fresh disposal
in terms of Or. 41 r. 23A CPC – However, the High Court restored
the judgment and decree passed by the Trial Court and held that
the suit was for bare injunction and found that the exercise to identify
the property with reference to the ownership was not justified – On
appeal, held: In the instant case, the dispute had arisen when the
plaintiff was seeking to put up a construction of the wall and the
defendants had objected to the same – The defendants had in the
written statement referred to the manner in which the right to property
had flowed ever since the partition through the deed and the
measurements – The location of the shares enjoyed by the parties is
referred and the right as claimed by the plaintiff is disputed – The
Trial Court had framed the issues referring to the identity of the
property as also the ownership and possession – The plaintiff did
not object to the said issues – Instead, the evidence was tendered
based on the issues – The Trial Court answered the issues referring
to the identity to the property, ownership and possession in favour
of plaintiff – In that background, the defendant questioned the
conclusion reached by the Trial Court – Thereafter, the First
Appellate Court held that the said issues needed reconsideration
and in the background of the additional evidence and opportunity
was provided to the defendant – Therefore, in the facts and
circumstances of the present case the High Court was not justified,
but the conclusion of the First appellate Court was the appropriate
course.
 [2020] 2 S.C.R. 975
975
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SUPREME COURT REPORTS
[2020] 2 S.C.R.
Allowing the appeal, the Court
HELD: 1. The issues No.1 and 2 framed by the trial court
refers to the identity of the property as also the ownership and
possession thereof. The plaintiff did not object to the said issues
nor did the plaintiff file any application under Order 14 Rule 5
CPC seeking amendment or to strike out the said issues. On the
other hand, the evidence was tendered based on the issues and
the Issue Nos.1 and 2 were considered by the trial court and was
answered in favour of the plaintiff wherein it is held that the plaintiff
is in ownership and possession of the plaint schedule property.
In that background when the defendant had questioned such
conclusion reached by the trial court and had put forth the
contention and also sought for an opportunity to produce additional
evidence by filing an application under Order 41 Rule 27 CPC
and in that background when the lower appellate court was of the
opinion that the said issues need reconsideration in the
background of the additional evidence and opportunity being
provided to the defendant the appropriate course was to remand
the matter to the trial court and provide opportunity which was
accordingly done. [Para 13][981 B-F]
2. If the above aspects are kept in view the observations
made by the High Court relating to the consideration required
being only of possession since the suit was for perpetual injunction
is without reference to the nature of contentions put forth in a
suit, the issues that had been raised for consideration and the
conclusion that had been reached by the trial court as also the
lower appellate court in that background. Hence, this Court is of
the opinion that in the facts and circumstance of the present case
the High Court was not justified, but the conclusion of the lower
appellate court to set aside the judgment and decree of the trial
court and remand the matter for reconsideration by the trial court
was the appropriate course. [Para 14][981 F-H]
Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors.
(2019) 8 SCC 729 – referred to.
Case Law Reference
(2019) 8 SCC 729
referred to
Para 9
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977
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1892
of 2020.
From the Judgment and Order dated 14.11.2014 of the High Court
of Kerala at Ernakulam in FAO (RO) No. 229 of 2014.
P. A. Noor Muhamed and Abdul Rahiman, Advs. f

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