K.S. KRISHNA SARMA versus KIFAYAT ALI

Citation: [2008] 1 S.C.R. 426 · Decided: 09-01-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off

Judgment (excerpt)

[2008] 1 S.C.R. 426 
+-. 
A 
K.S. KRISHNA SARMA 
v. 
KIFAYAT ALI 
(C.A. No. 187 of 2008) 
B 
JANUARY 9, 2008 
(DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.) 
,. 
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Code of Civil Procedure, 1908: 
c 
lmpleadment of legal representative in a proceeding for 
declaration of title and possession - Suit decreed by trial Court 
in favour of plaintiff without impleading daughter of deceased 
defendant No.2 - Matter remanded by Single Judge of High 
Court to trial Court holding the decree defective, as passed, 
in absence of one of the legal representatives of defendant 
D No.2 - Re-hearing by trial Court - Defendant No.1 adducing 
additional evidence by introducing several documents - Held: 
Not allowed in view of clarificatory order passed by Single 
Judge of the High Court directing that there was no need to 
record entire evidence afresh and defendant No. 1 to confine 
E himself to the defence taken in the written statement by the 
newly impleaded defendant - Moreover, only daughter of 
defendant No. 2 was permitted to be impleaded and to file written 
statement - Constitution of India, 1950 - Article 227. 
F 
Respondent-plaintiff filed a suit for declaration of title 
and possession. During pendency of the suit, defendant 
-
~ 
No.2 died and all his legal representatives were brought 
on record except one daughter. Trial Court decreed the 
suit in favour of the plaintiff. In the appeal filed by the 
defendant, Single Judge of the High Court held that in 
G the absence of daughter of defendant No.2, one of the 
legal representatives, the decree was defective, and 
i· 
remanded the matter to the trial Court with a direction to 
take her on record. The order was challenged by the 
respondent by filing a Letters Patent Appeal before the 
H 
426 
K.S. KRISHNA SARMA v. KIFAYAT ALI 
427 
Division Bench of the High Court. The Division Bench of A 
the High Court remitted the matter to the Single Judge 
with a direction to re-hear the matter insofar as daughter 
of defendant No.2 was concerned and consider the 
validity of the decree passed in her absence amongst 
other matters on merits. The Single Judge set aside the B 
judgment and decree and remanded the matter to trial 
Court for de novo enquiry with a direction to take 
daughter of defendant No.2 on record and to consider 
her written statement. It was also clarified by the High 
Court that there is no need to record the entire evidence c 
afresh. Accordingly, daughter of defendant No.2 was 
added as a party and she had filed her written statement. 
PW-1 was recalled and re-examined. Defendant No.1 (DW-
1) sought to file an additional affidavit in lieu of chief-
examination introducing many documents. The trial Judge 
returned the additional affidavit with a direction to file a D 
fresh affidavit confining to the right of newly impleaded 
legal representative only. The said order of the trial Judge 
was challenged by 1st defendant by filing a Civil Review 
Petition before the High Court under Article 227 of the 
Constitution of India. The petition was dismissed in limine E 
by the Single Judge of the High Court. Questioning the 
said order, 1st defendant has filed the present appeal. 
Disposing of the appeal, the Court 
HELD: 1.1 It is clear from the clarificatory order F 
-.I. 
passed by the Single Judge of the High Court that there 
is no need to record the evidence afresh in respect of all 
issues and the direction was to permit the daughter of 
defendant No.2 in the original suit to come on record, file 
her written statement and decide the matter based on her G 
claim as well as other materials which were on record. As 
a matter of fact, after remand and after impleadment of 
daughter of defendant No.2, PW"1 .confined· himself to the 
case as ag~inst 0 her: In vie'!" of the same •. as rightly 
ob.serve~ ·by Jhe Single·Judge 'of the· High Court; the H 
428 
SUPREME COURT REPORTS 
[2008] 1 S.C.R. 
A appellant cannot be permitted to lead evidence afresh on 
other issues. The trial Judge as well the Single Judge of 
the High Court correctly understood the earlier orders 
in'cluding the clarificatory order and rightly issued 
direction to 1st defendant to confine himself to the 
B defence taken in the written statement by the daughter of 
defendant No.2. (Para - 6) [431-C, D, E, F] 
1.2 It is clarified that the parties are at liberty to lead 
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fresh evidence only in respect of defence/stand taken by 
the newly impleaded defendant in her written statement. 
C (Para - 6) [431-

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