Supreme Court - Daily Orders
Alamelu Ammal vs S.Rani . on 2 January, 2017
Bench: A.K. Sikri, Abhay Manohar Sapre
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S).27/2017
(Arising out of Special Leave Petition (C) No(s). 18463/2014)
ALAMELU AMMAL AND ANR APPELLANT(S)
VERSUS
S.RANI AND ORS. RESPONDENT(S)
WITH
CIVIL APPEAL NO(S).28/2017
(Arising out of Special Leave Petition (C) No(s). 27576/2016)
O R D E R
We have heard learned counsel for the parties finally at this stage.
Leave granted.
One Kanda Nainar executed a sale deed in favour of the first appellant on 05.09.1979 whereunder a wall measuring 30 feet East-West and ¾ feet North-South of a length of 30 feet with a height of 9 feet had been sold. The said appellant instituted a suit for declaration of title and permanent injunction in respect of the suit property measuring 95 feet East-West and 23 feet North-South, which comprised of the house and the garden on the Signature Not Verified Digitally signed by ASHWANI KUMAR backside of the house against the predecessor of the respondents. Date: 2017.01.05 16:46:58 IST Reason: The said suit was resisted by the predecessor of the respondents. The trial court partly decreed the suit and granted relief to the 2 appellants in respect of an extent of 33.5 feet East-West and 23 feet North-South which took within its fold the house of the appellants. Being aggrieved, the appellants preferred an appeal in respect of the disallowed portion of their claim namely, the garden on the backside of their house measuring 61.5 feet East-West and 23 feet North-South. During the trial, the appellants had produced a Patta in respect of Re-Survey No. 286/1B while the suit property was comprised in Re-Survey No. 278/1. Realzing the mistake, the appellants filed an application for receiving the Patta issued in their favour in respect of Re-Survey No. 278/1 in which the suit property was situate. The First Appellate Court received the said Patta by way of additional evidence and proceeded to grant the relief to the appellants as prayed for in the suit by allowing the appeal. Aggrieved with the grant of the relief in toto, the predecessor of the respondents preferred a second appeal before the High Court. The learned Single Judge allowed the second appeal by holding that no opportunity had been afforded by the First Appellate Court to prove the document (Patta) which had been filed by way of additional evidence and restored the decision of the Trial Court. The said order was challenged by the appellants by filing review application. The High Court while dismissing the review application held that the points raised in the review application had not been urged when the second appeal was heard and, therefore, the same cannot be permitted to be raised in the review application. The High Court noted that the procedure contemplated under Order XLI Rule 28 of the Civil Procedure Code, 1908 had to be followed for receiving additional evidence. 3
From the aforesaid, it transpires that the High Court has not questioned the order passed by the First Appellate Court in allowing the application of the appellants under Order XLI Rule 28 of the Code of Civil Procedure, 1908. It means that insofar as exercise of the discretion by the First Appellate Court on this aspect was concerned, no fault was found there with and though the High Court rightly held that once the application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 was allowed, the procedure contemplated under Order XLI Rule 28 of the Code of Civil Procedure, 1908 should have been followed by the First Appellate Court and the document in question, which was Exhibit – A10, should have been proved in accordance with law. This was not done and the First Appellate Court simply acted upon the said Exhibit – A10 and on that basis passed the decree in favour of the appellants. However, thereafter the manner in which the High Court proceeded is also blemished to some extent. The High Court has set aside the decree passed by the First Appellate Court simply because the procedure contemplated under Order XLI Rule 28 of the Code of Civil Procedure, 1908 was not followed. In a situation like this more appropriate course of action for the High Court was to remit the case to the First Appellate Court with a direction to follow the procedure as contemplated under Order XLI Rule 28 of the Code of Civil Procedure, 1908 and thereafter decide the first appeal which was filed by the appellants herein.
4For the aforesaid reasons, we set aside the impugned judgment of the High Court and remit the case to the First Appellate Court. The First Appellate Court shall follow the procedure contained in Order XLI Rules 28 & 29 of the Code of Civil Procedure, 1908 by permitting the appellants to adduce the necessary evidence to prove Exhibit-A10 and also give an opportunity to the respondents herein to lead any evidence and thereafter decide the first appeal of the appellants.
The appeals are, accordingly, disposed of.
......................J. [A.K. SIKRI] ......................J. [ABHAY MANOHAR SAPRE] NEW DELHI;
JANUARY 02, 2017.
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ITEM NO.3 COURT NO.9 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 18463/2014
(Arising out of impugned final judgment and order dated 04/02/2014 in SA No. 33/2005 04/02/2014 in RA No. 60/2013 passed by the High Court Of Madras) ALAMELU AMMAL AND ANR Petitioner(s) VERSUS S.RANI AND ORS. Respondent(s) (with appln. (s) for exemption from filing O.T. and interim relief and office report) WITH SLP(C) No. 27576/2016 (With appln.(s) for c/delay in filing SLP and Office Report) Date : 02/01/2017 These petition s were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE A.K. SIKRI HON'BLE MR. JUSTICE ABHAY MANOHAR SAPRE For Petitioner(s) Mr. V. Prabhakar, Adv.
Ms. Jyoti Prashar, Adv.
Mr. Pramit Saxena,Adv.
For Respondent(s) Mr. M.P. Parthiban, Adv.
Mr. T. R. B. Sivakumar,Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeals are disposed of in terms of the signed order. Pending application(s), if any, stands disposed of accordingly.
(Ashwani Thakur) (Mala Kumari Sharma)
COURT MASTER COURT MASTER
(Signed order is placed on the file)