Holding

The High Court's remand order was ultra vires because, post‑amendment, wholesale remand is permissible only under Order 41 Rules 23, 23A or 25, and in their absence the court cannot invoke its inherent power under Section 151 CPC.

Summary

The appellants (vendors) entered into a sale agreement with the respondent (buyer) for Rs.40.25 lakh, conditioning the sale on obtaining clearance under the Urban Land (Ceiling and Regulation) Act, 1976 by a stipulated date. When the clearance was not obtained, the vendors cancelled the agreement and refunded part of the earnest money. The buyer sued for specific performance; the trial court decreed in his favour and the vendors appealed. While the appeal was pending, the competent authority later confirmed the land was within ceiling limits and the buyer’s company was declared sick by BIFR. The High Court set aside the trial court decree and remanded the case to the trial court to decide three additional issues, invoking its inherent power under Section 151 CPC. The Supreme Court held that after the CPC amendment, wholesale remand is permissible only under Order 41 Rules 23, 23A or 25, and the High Court could not rely on inherent jurisdiction; consequently the remand was ultra vires. The Court also noted that time is not the essence of a sale contract unless expressly stated, citing the Constitution Bench decision in Chand Rani v. Kamal Rani. The order of remand was set aside and the appeals were allowed, restoring the appeal and revision for fresh determination.

Issues considered

Whether the High Court could lawfully remand the case to the trial court under its inherent powers despite the existence of Order 41 Rules 23, 23A and 25 of the CPC.
Whether time was the essence of the agreement of sale concerning the ULCRA clearance condition.
Whether the suit for specific performance was maintainable given the pleadings and Forms 47/48 of Appendix A CPC.
Whether the buyer was ready and willing to perform his part of the contract under Section 16(e) of the Specific Relief Act.
Whether the buyer was entitled to specific relief of the contract.
Effect of subsequent events (ULCRA clearance order and BIFR sick company order) on the parties' rights.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rules 23, 23A, 25, s. Section 151
Sick Industrial Companies (Special Provisions) Act, 1985
Specific Relief Act, 1963s. Section 16(e), s. Section 28
Urban Land (Ceiling and Regulation) Act, 1976

Subjects

specific performanceagreement of saleurban land ceiling actremandinherent jurisdictionCPC Order 41time as essence of contractsubsequent eventssick companySpecific Relief Act

Judgment

A P. PURUSHOTTAM REDDY AND ANR.
v.
MIS PRATAP STEELS LTD.

JANUARY 21, 2002

B [R.C. LAHOTI AND BRIJESH KUMAR, JJ.]

Code of Civil Procedure, I 908:

Order 41Rules23, 23A & 25-Section 151-Agreement of sale of suit
C property-Cancellation ofthe agreement by vendor for failure to get requisite
permission under the Urban Land (Ceiling and Regulation) Act, 1976 within
stipulated time-Suit for specific performance by purchaser-Suit decreed by
trial court-Happening ofsubsequent events during pendency ofappeal before
High Court-Remand by High Court to trial court after framing additional
D issues-Propriety and legality of remand-Inherent power of High Court-
Held, remand by High Court under the provisions of the Code and on facts
not proper-Inherent powers can be exercised only in absence of express
provisions in the Code-Hence, order of remand made by High Court set
aside and case sent back to High Court for fresh disposal after considering
E subsequent events-Specific Relief Act, 1963-Sections 16(e) & 28. ·

Appellant entered into an agreement of sale of the suit property with
respondent-company for a consideration of Rs. 40,25,000 in October 1987.
Earnest money of Rs. 8,00,000 was paid by the respondent and the
remaining amount was to be paid on execution and registration of the
F 1 sale deed. The agreement of sale provided that the appellant would obtain
the requisite permission from the Competent Authority under the Urban
Land (Ceiling and Regulation) Act, 1976 by June 1998. The agreement
further ;:>rovided for refund of the earnest money if the requisite
permission was not forthcoming by June 1998 or such extended time as
may be mutually agreed to. In December 1998, the appellant cancelled
G the agreement of sale on the ground of not obtaining the requisite
clearance from the competent authority within the stipulated time and
refunded a part of the earnest money to the respondent and promised to
repay the balance by the end of the month.

H 586
P. PURUSHOTTAM REDDYv. PRATAP STEELS LTD. 587
The respondent filed a suit for specific performance of agreement A
to sell, against the appellant. The trial court decreed the suit. The appellant
filed an appeal before High Court against the decree of the trial court.
When the appeal w.as pending, two subsequent eve11ts occurred i.e. (i)
communication of the order of the competent authority (Urban Land
Ceiling) holding the land of the appellants to be within ceiling limits, and B
(ii) order of BIFR holding the respondent-company to be a sick company
under the Sick Industrial Companies (Special Provisions) Act, 1985. The
appellant filed an application before the trial court under Section 28 of
the Specific Relief Act, 1963 for cancellation of the agreement of sale due
to failure of the respondent to comply with trial court decree by non-
payment of the balance purchase money. On rejection by the trial court, C
the appellant filed a civil revision petition before the High Court.

The High Court, by a common order, set aside the judgment and
decree of the trial court and remanded the case back to the trial court to
decide the case afresh on three additional issues viz. (i) whether the suit D
for specific performance by the respondent is maintainable; (ii) whether
the respondent was ready and willing to perform his part of the contract;
... and (iii) whether the respondent was entitled for specific relief of the
contract. High Court held that time was not the essence of the contract
and therefore the factum of not obtaining the clearance under the Urban
Land Ceiling Act by the appellant within the stipulated time did not render E
the agreement inoperative and unenforceable. Hence the appeals by the
appellants.

Remanding the appeals to the High Court, the Court
F
HELD: 1.1. After the amendment in 1976 introducing Rule 23A to
Order 41 CPC, all the cases of wholesale remand are covered by Rules
23 and 23A of Order 41 CPC. High Court cannot have recourse to its
inherent powers under Section 151 CPC to make a remand because it is
well settled that inherent powers can be availed of ex debito justitiae only G
in the absence of express provisions in the Code. It is only in exceptional
cases where the court may now exercise the power of remand de hors Rules
23 and 23A CPC. An appellate court should be circumspect in ordering a
remand when the case is not covered either by Rule 23, 23A or 25 CPC.
An unwarranted order of remand gives the litigation an undeserved lease
of life and, therefore, must be avoided. [595-D-,F[ H
588 SUPREME COURT REPORTS [2002] I S.C.R.

A Mahendra v. Sushi/a, AIR (1965) SC 365, referred to.

1.2. The trial court did not dispose of the suit upon a preliminary
point. The suit was decided by recording fiJldings on all the issues. By its
appellate judgment under appeal herein, the High Court has recorded its
finding on some of the issues, not preliminary, and then framed three
B additional issues Iea~ing them to be tried and decided by the trial court.
It is not a case where a retrial is considered necessary. Neither Rule 23
nor Rule 23A of Order 41 CPC applies. None of tlie conditions
contemplated by Rule 27 exists so as to justify production of additional
evidence by either party under that Rule. The validity of remand has to
C be tested by reference to Rule 25 CPC. [595-G-H; 596-A-E)

1.3. Regarding objection as to maintainability of the suit for failure
of the plaint to satisfy the requirement of Forms 47 and 48 of Appendix
A of CPC is concerned, the High Court has itself found that there was no
D specific plea taken in the written statement. The question of framing an
issue did not, therefore, arise. However, the plea was raised on behalf of
the appellants purely as a question of law which, in their submission,
strikes at the very root of the right of the respondent to maintain the suit
in the form in which it was filed and so the plea was permitted to be urged.
So far as the plea as to readiness and willingness by reference to Section
E 16(e) of the Specific Relief Act, 1963 is concerned, the pleadings are there
as they were and the question of improving upon the pleadings does not
arise in as much as neither any of the parties made a prayer for
amendment in the pleadings nor has the High Court allowed such a liberty.
It is true that a specific issue was not framed by the trial court.
F Nevertheless, the parties and the trial court were very much alive to the
issue whether Section 16(e) of the Specific Relief Act was·complied with
or not and the contentions advanced by the parties in this regard were
also adjudicated upon. The High Court was to examine whether such
finding of the trial court was sustainable or not-in law and on facts. Even
•G otherwise the question could have been gone into by the High Court and
a finJing could have been recorded on the available material in as much
as the High Court being the court of first appeal, all the questions of fact
and law arising in the case were open before it for consideration and 4
decision. (596-A-E)

H 1.4. No grievance was raised by any of the parties before the High

r:
P. PURUSHOTTAM REDDYv. PRATAP STEELS LTD. 589

Court that there was any failure on the part of the trial court in A
discharging its obligation of framing issues. Nobody complained of
prejudice at the trial for want of any issue or a specific issue. It was
nobody's case that any evidence, oral or documentary, was excluded or
not allowed to be taken on record by the trial court. The challenge by the
appellants against the order of remand in this Court shows that they are B
not interested in remand and neither party wanted any additional issue
to be framed nor adduce any further evidence. (597-D-E]

Naghubai Ammal and Ors. v. B. Shama Rao and Ors., AIR (1956) SC
593, relied on.

.. c
1.5. The two subsequent events, which are material, are subject
matter of documentary evidence and almost admitted between the parties.
The High Court can be requested to take note of such subsequent events
by bringing the relevant documents on record which being public
documents would not require any formal proof. The High Court may take
note of such subsequent events and test the validity of judgment under
D
appeal by reference to those events also or mould the relief suitably and
as may be considered necessary. [598-A-B]
....
2. The Constitution Bench decision in Chand Rani (Smt.) (Dead) by
Lrs. v. Kamal Rani (Smt.) (Dead) by Lrs., (1993) 1 SCC 519 held that the E
time is not the essence of the contract in the case of sale of immovable
property unless the parties intended to make time as the essence and
expressed in unequivocal language in the contract. The High Court ought

-
to have noticed the Constitution Bench decision while dealing with the facts
and circumstances of the case. 1593-D-F)
• F
Chand Rani (Smt.) (Dead) by Lrs. v. Kamal Rani (Smt.) (Dead) by Lrs.,
(1993) SCC 519 CB, relied on.

K.S. Vidyanadam & Ors. v. Vairavan, [1997) 3 SCC 1 and Chandnee
Widya Vati Madden v. Dr. C.L. Katia/ & Ors., (1964) 2 SCR 495, referred G
to.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 679-680
of 2002.

From the Judgment and Order dated 19.8.99 of the Andhra Pradesh H
590 SUPREME COURT REPORTS [2002] I S.C.R.

A High Court in C.C.C.A. No. 80/93 and C.R.P. No. 1960 of 1996.

V.R. Reddy and P. Venket Reddy for Guntur Prabhakar for the
Appellants.

Parag Tripathi, Ms.Bina Gupta, Ms. Rakhi Ray, Ms. Divya Roy, Ms.
B Vanita Bhargava and Ms. Monika Malik for the Respondent.

The Judgment of the Court was delivered by

R.C. LAHOTI, J. Leave granted.
c
An Introductory Statement of bare necessary facts would suffice for the ..
purpose of this order. On 31.10.1987, a contract for sale of immoveable
property was entered into between the parties whereby the appellant agreed
to sell the suit property consisting of a building and the site on which the
D building stands, for a consideration of Rs. 40,25,000. An amount of Rs.
8,00,000 was paid by way of advance or earnest money the balance
consideration of Rs. 32,25,000 was to be paid simultaneously with the
execution and registration of sale deed. This contract was in supersession of
an earlier contract dated 22.9.1986 which had lapsed. The vendor had agreed
to obtain the requisite permission from the Urban Land Ceiling Authority
E before 30th June, 1988. The time so appointed could be extended by mutual
consent of the parties. It was expressly agreed upon between the parties that
if the requisite exemption or permission under the Urban Land (Ceiling and
Regulation) Act, 1976 ('ULCRA'. for short) was not forthcoming by 30th
June, 1988 or within such extended period as may be mutually agreed to then
F the contract was to become inoperative and unenforceable in which event the
only obligation surviving on the vendor was to refund the earnest money.
The vendor could return the earnest money within three months thereafter
and if for any reason whatsoever the amount could not be so repaid then the
amount was to carry interest at the rate of 12 per cent per annum. It appears
that proceedings for declaration that the suit property was within the ceiling
G limits as appointed by the ULCRA were already pending before the Competent
Authority at a point of time when the agreement was entered into between
the parties. However, the decision was not forthcoming within the period of
six months from the date of the agreement. On 1.12.1998 the appellant wrote
a letter to respondent informing that the agreement to sell stands cancelled as
H per the terms of the agreement for failure of the requisite clearance from the
P. PURUSHOTTAM REDDY v. PRATAP STEELS LTD. [R.C. LAHOTI, J.) 591
competent authority (Urban Land Ceiling) forthcoming. With the letter the A ·
appellant tendered an amount of Rs. 2,00,000 through two cheques enclosed
with the letter, requesting for the agreement being returned duly cancelled to
the vendor and assuring the payment of the balance amount of the earnest
money before the end of December, 1988. This letter erupted a conflict
between the parties leading to exchange of legal notices and filing by the B
respondent of a suit nor specific performance of agreement to sell on 29.6.1989.
On 12.3 .1992 the Trial Court decreed the suit against which the appellant
filed First Appeal before the High Court. On 19.8.1999 the High Court has
allowed the appeal, set aside the judgment and decree of the Trial Court and
remanded the case for holding additional trial on the three additional issues
framed by the High Court and thereafter to decide the case afresh. C

A perusal of the order of remand made by the High Court shows that
on behalf of the appellant Six contentions were raised: (i) that the suit was
not maintainable as the pleadings did not conform to the requirements of
Forms 47 and 48 of Appendix A of the Code of Civil Procedure: (ii) that D
there was no pleading in the plaint that the plaintiff-respondent had always
been ready and willing to perform his part of the contract and continued to
be so, and on the contrary the conduct of the respondent showed the absence
of such readiness and willingness; (iii) that the agreement became inoperative
and unenforceable on 30th June, 1988 and therefore was rendered incapable
of specific performance (iv) that the grant of relief of specific performance E
was discretionary, which the facts and circumstances of the case did not
permit being exercised in favour of the plaintiff-respondent, (v) that the
respondent had not approached the Court with clean hands and therefore was
not entitled to the discretionary and equitable relief of specific performance;
and (vi) that the respondent was not financially sound and therefore was not F
in a position to perform his part of the contract.

Before we may proceed to notice how the High Court proceeded to
dispose of the appeal and the reason~ which persuaded the High Court to
make a remand, we may place on record two subsequent events which have
occurred. Firstly, the Competent Authority (Urban Land Ceiling) had passed G
an _order on 22.12.1989 declaring the land held by the appellants, including
the property agreed to be sold, not to be in excess of ceiling limits which
order though passed on 22.12.1989 was, according to the appellants,
communicated to them sometime in May 1992, that is, subsequent to the
decision of the suit. In view of this order the need for obtaining clearance H
592 SUPREME COURT REPORTS [2002] I S.C.R.

A from the Competent Authority (Urban Land Ceiling) was obviated. Secondly,
the respondent which is a duly incorporated company running an industry,
fell sick. Proceedings under Sick Industrial Companies (Special Provisions)
Act, 1985 were initiated and the Board of Industrial and Financial
Reconstruction ('BIFR', for by its order dated 14.10.1996 declared the
B respondent-company as a sick company directing the promoters to furnish a
proposal for revival of the company. During the course of hearing in this
Court we were informed at the Bar that the order made by BIFR has been put
in issue by the respondent by filing a writ petition in the High Court of Delhi
and it is, pending sub-judice.

C On an analysis of several recitals of the agreement dated 31.10.1987
and of the law the High Court concluded that time was not the essence of the
contract and therefore the factum of not obtaining the clearance under the
•
ULCRA by the appellant within the time appointed did not render the
agreement inoperative and unenforceable. The High Court also held that the
six months time appointed by the agreement could not be said to have been
D extended by acuquiescence and implied consent on the part of the appellant.
The High Court then proceeded to examine the crucial question whether the
respondent was ready and willing to perform his part of the contract and the
pleading in that regard as contained in the plaint. The High Court noticed that
there was no specific issue framed by the Trial Court as to such a plea. The
E High Court also noticed that in the written statement there was no plea taken
that the suit for specific performance was not maintainable for non-compliance
with Forms 17 and 48 of Appendix A of the Code of Civil Procedure. Having
stated so the High Court felt the need of framing three additional issues viz.
(i) whether the suit is maintainable, (ii) whether the plaintiff is ready and
willing to perform his part of the contract, and (iii) whether the plaintiff is
F entitled for specific relief of the contract. Having formed that opinion the
• '
High Court set aside the judgment and decree of the Trial Court framed the
three issues as abovesaid, allowed liberty to the parties for adducing in the
trial court such evidence as was necessary on the abovesaid issues without
amending the pleadings and sent the matter back to the Trial Court. The High
G Court also left it open to the Trial Court to take into account the subsequent
events.

Subsequent to the passing of the decree that judgment-debtor had moved
an application under Section 28 of the Specific Relief Act. 1963 to have the
contract rescinded for failure of the decree-holder to comply with his
H obligations under the decree specially the one for payment of the purchase
P. PURUSHOTTAM REDDY v. PRAT AP STEELS LTD. [R.C. LAHOTI, I.] 593
money. The application was rejected by the Trial Court. Feeling aggrieved by A
such order the appellant had filed a civil revision petition which was taken
~ up for hearing along with the first Appeal. Having disposed of the First
Appeal in the manner and in the terms as already stated the Trial Court
directed the pleas raised in such application also to be decided along with the
suit.
B
.... We have heard the learned counsel for the parties and we are satisfied
that the approach adopted by the High Court is unsustainable in law and
therefore the order ofremand cannot also be sustained. We briefly set out the
reasons for forming such opinion in the succeeding paragraphs.

For the purpose of deciding the question whether or not time was the
c
essence of the contract the appellant before the High Court relied on K.S.
Vidyanandam and Ors. v. Vairavan, (1997] 3 SCC I which is a two-Judge
Bench decision and a few other decided cases. On behalf of the plaintiff-
respondent reliance was placed on Chandnee Widya Vati Madden v. Dr. C.L.
Katia/ and Ors., [1964] 2 SCR 495, which is a three-Judge Bench decision. D
The High Court noticed that facts of both these decisions and having also
dealt with the law laid down therein felt inclined to decide the case in the
light of the law laid down in Chandnee Widya Vati 's case because the decision
ir1 Chandnee Widya Vati 's case was, as stated by the High Court, "the earlier
larger Bench judgment". The attention of the High Court was not invited to
E
a Constitution Bench decision in Chand Rani (Smt.) (Dead) by Lrs. v. Kamal
Rani (Smt.) (Dead) by Lrs., [1993] 1 SCC 519 and therefore the law laid
down by the Constitution Bench has escaped the attention of the High Court.
The issue as to whether time is the essence of the contract in contracts for

.. sale of immoveable property came up for the consideration of the Constitution
Bench and it was held: F

"It is a well-settled principle that in the case. of sale of immovable
property, time is never regarded as the essence of the contract. In
fact, there is .a presumption against time being the essence of the
contract. This principle is not in any way different from that obtainable
G
in England. Under the law of equity which governs the rights of the
parties in the case of specific performance of the contract to sell real
estate, law looks not at the letter but at the substance of the agreement.
It has to be ascertained whether under the terms of the contract the
parties named a specific time within which completion was to take
place, really and in substance it was intended that it should be H
594 SUPREME COURT REPORTS (2002] I S.C.R.

A completed within a reasonable time. An intention to make time the
essence of the contract must be expressed in unequivocal language."

xxx xxx xxx

" .............. .in the case of sale of immovable property there is not
B presumption as to time being the essence of the contract. Even if it
is not of the essence of the contract the Court may infer that it is to
be performed in a reasonable time if the conditions are:
-
1. From the express terms of the contract.

c 2. from the nature of the property; and
•
3. from the surrounding circumstances, for example the object of
making the contract."

Vide para 29, the Constitution Bench, on an analysis of evidence,
concluded that though as a general proposition of law time is not the essence
D of the contract in the case of sale of immoveable property yet the parties
intended to make time as the essence under clause ( 1) of the suit agreement.
This Constitution Bench decision in Chand Rani's case was placed before
and followed by the two-Judge Bench deciding Vidyanadam 's case. The
High Court ought to have noticed the Constitution Bench decision, while
E dealing with the facts and circumstances of the present case as emerging
from evidence and then decided the case in the light of the law laid down by
the Constitution Bench.

The next question to be examined is the legality and propriety of the
order of remand made by the High Court. Prior to the insertion of Rule 23A
F in Order 41 of the Code of Civil Procedure by CPC Amendment Act 1976,
there were only two provisions contemplating remand by a court of appeal
in Order 41 of CPC. Rule 23 applies when the trial court disposes of the
entire suit by recording its findings on a preliminary issue without deciding
other issues and the finding on preliminary issue is reversed in appeal. Rule
G 25 applies when the appellate court notices an omission on the part of the
trial court to frame or try any issue or to determine any question of fact
which in the opinion of the appellate court was essential to the right decision
of the suit upon the merits. However, the remand contemplated by Rule 25
is a limited remand' in as much as the subordinate court can try only such
issues as are referred to it for trial and having done so, the evidence recorded,
H together with findings and reasons therefore of the trial court, are required to
P. PURUSHOTTAM REDDYv. PRAT AP STEELS LTD. [R.C. LAHOTI, J.] 595
be returned to the appellate court. However, still it was a settled position of A
law before 1976 Amendment that the court, in a appropriate case could

- exercise its inherent jurisdiction under Section 151 of the CPC to order a
remand if such a remand was considered pre-eminently necessary ex debito
justitiate, though not covered by any specific provision of Order 41 of the
CPC. In cases where additional evidence is required to be taken in the event B
of any one of the clauses of sub-rule (I) of Rule 27 being attracted, such
additional evidence oral or documentary, is allowed to be produced either
before the appellate court itself or by directing any court subordinate to the
appellate court to receive such evidence and send it to the appellate court. In
1976, Rule 23 A has been inserted in Order 41 which provides for a remand
by an appellate court hearing an appeal against a decree if (i) the trial court C
disposed of the case otherwise than on a preliminary point, and (ii) the decree
is reversed in appeal and a retrial is considered necessary. On twin conditions
being satisfied, the appellate court can exercise the same power of remand
under Rule 23A as it is under Rule 23. After the amendment, all the cases
of wholesale remand are covered by Rule 23 and 23 A. In view of the
express provision of these rules, the High Court cannot have recourse to its D
inherent powers to make a remand because, as held in Mahendra v. Sushi/a,
AIR (1965) SC 365, at p. 399), it is well settled that inherent powers can be
availed of ex debito justiatiate only in the absence of express provisions in
the Code. It is only in exceptional cases where the court may now exercise
the power of remand de hors the Rules 23 and 23A. To wit, the superior E
court, if it finds that the judgment under appeal has not disposed of the case
satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule
31 of the CPC and hence it is no judgment in the eye of law, it may set aside
the same and send the matter back for re-writing the judgment so as to
protect valuable rights of the parties,. An appellate court should be circumspect
in ordering a remand when the case is not covered either by Rule 23 or Rule
F
23A or Rule 25 of the CPC. An unwarranted order of remand gives the
litigation an undeserved lease of life and, therefore, must be avoided.

In the case at hand, the trial court did not dispose of the sit upon a
preliminary point. The suit was decided by recording findings on all the G
issues. By its appellate judgment under appeal therein, the High court has
recorded its finding on some of the issues, not preliminary, and then framed
three additional issues leaving them to be tried and decided by the trial court.
It is not a case where a retrial is considered necessary. Neither rule 23 nor
rule 23A of Order 41 applies. None of the conditions contemplated by Rule
27 exists so as to justify production of additional evidence by either party H
596 SUPREME COURT REPORTS [2002) I S.C.R.

A under that Rule. The validity of remand has to<be tested by reference to Rule
25. So far as the objection as to maintainability of the suit for failure of the
plaint to satisfy the requirement of Forms 4 7 and 48 of Appendix A of CPC
is concerned, the High court has itself found that there was no specific plea
taken in the written statement. The question of framing an issue did not,
B therefore, arise. However, the plea was raised on behalf of the defendants
purely as a question of law which, in their submission, strikes at the very root
of the right of the plaintiff to maintain the suit in the form in which it was
filed and so the plea was permitted to be urged. So far as the pleas as to
readiness and willingness by reference to clause (c) of Section 16 of the
Specific Relief Act, 1963 is concerned, the pleadings are there as they were
C and the question of improving upon the pleadings does not arise in as much •
as neither any of the parties made a prayer for amendment in the pleadings
nor has the High Court allowed such a liberty. It is true that a specific issue
was not framed by the trial court. Nevertheless, the parties and the trial court
were very much alive to the issue whether Section 16(c) of the Specific
D Relief Act was complied with or not and the contentions advanced by the
parties in this regard were also adjudicated upon. The High Court was to
examine whether such finding of the trial court was sustainable or not-in
law and on facts. Even otherwise the question could have been gone into by
the High Court and a finding could have been recorded on the available
material in as much as the High Court being the court of first appeal, all the
E questions of fact and law arising in the case were open before it for
consideration and decision.

Assuming that there was any deficiency in the pleadings and also an
omission on the part of the trial court to frame a specific issue, the present
one is a case where the applicability of the law laid down by this court in
F Nagubai Ammal and Ors. v. B. Shama Rao and Ors., AIR (1956) SC 593 was •
squarely attracted. In Nagubai case this court was called upon to examine if
the plea of its pendens was not open to the plaintiff on the ground that it had
not been raised in the pleadings. Neither the plaint nor the reply statement of
the plaintiff contained any averment that the sale was affected by the rule of
G /is pendens. There was no specific issue directed to that question. However,
evidence was adduced by the plaintiff on the plea of /is pendens and not
objected to by the defendants. The question was argued and tested by taking
into consideration the evidence that the proceedings were collusive in character
with a view to avoid operation of Section 52 of the T.P. Act. This court felt
satisfied that the defendants went to trial with full knowledge that the question
H of /is pendens was in issue, had ample opportunity to adduce their evidence
P. PURUSHOTTAM REDDY v. PRAT AP STEELS LTD. [R.C. LAHOTI, J.] 597
thereon and fully availed themselves of the opportunity. This court formed A
the opinion that in the circumstances of the case, absence of a specific pleading

- on the question was a mere irregularity which resulted in no prejudice to the
defendants. After having noticed the rule of pleadings as applicable to civil
law that "no amount of evidence can be looked into upon a plea which was
never put toward", this court held, "The true scope of this rule is that evidence B
let in on issues on which the parties actually went to trial should not be made
the foundation for decision of another and different issue, which was not
present in the minds of the parties and on which they had no opportunity of
adducing evidence. But that rule has no application to a case where parties
go to trial with knowledge that a particular question is in issue, though no
specific issue has been framed thereon, and adduce evidence relating thereto." C

In the case before us it was not the grievance raised by any of the
parties before the High Court that there was any failure on the part of the trial
court in discharging its obligation of framing issues. Nobody complained of
prejudice at the trial for want of any issue or a specific issue. It was nobody's
case that any evidence, oral or documentary, was excluded or not allowed to D
be taken on record by the trial court. The very fact that the defendant-
appellants have come up to this court laying challenge to the order of remand
shows that the appellants are not interested in remand and do not want any
additional issue to be framed or to adduce any further evidence. Once of the
pleas taken by the appellants in the memo of special leave petition is that the E
High Court had erred in remanding the matter back for fresh trial and the
High Court had failed to appreciate that there was sufficient material on
record to show absence of readiness and willingness on the part of the plaintiff
to perform its part of the contract. On the other hand, after the passing of the
impugned order of remand the plaintiff-respondent has also through his
counsel, filed a memo before the trial court on 18.2.2000 submitting that on F
the additional issues framed pursuant to the direction of the High Court, the
evidence on behalf of the plaintiff was already on record and the plaintiff
would lead rebuttal evidence only if any evidence was adduced by the
defendants. Thus the plaintiff is also not desirous of adducing any additional
evidence on the issues. G
The subsequent events which are material and ought to be noticed by
the appellate court are only two i.e. (i) communication of the order of the
competent authority (Urban Land Ceiling) holding the land of the appellants
to be within ceiling limits, and (ii) order of BIFR holding the plaintiff-
respondent to be a sick company. These two events are subject matter of H
598 SUPREME COURT REPORTS [2002] I S.C.R.

A documentary evidence and almost admitted between the parties. The High
Court can be requested to take note of such subsequent events by bringing
...
the relevant documents on record which being public documents would not
require any formal proof. The High Court may take note of such subsequent
events and test the validity of judgment under appeal by reference to those
--
events also or mould the relief suitably and as may be considered necessary.
B
For the foregoing reasons the appeals are allowed. The impugned order
of remand made by the High Court is set aside. The first appeal and the civil
revision petition shall stand restored on the file of the High Court and shall
be decided afresh after affording the parties an opportunity of being heard
c and consistently with the observation made hereinabove. No order as to the
•
costs.

Before parting, we would like to make it clear that we have not expressed
any opinion on the merits of any of the issues arising for decision in the suit
or appeal and whatever we have stated herein is only for the purpose of
D demonstrating that no remand was required. So also although the order of
remand has been set aside and the parties too are not desirous of adducing
any evidence excepting for placing on record the relevant requisite documents
as to the two admitted subsequent events, yet we should not be understood
as depriving the High Court of its power to require any document to be
E produced or any witness to be examined to enable it to pronounce judgment,
or for any other substantial cause, within meaning of clause (b) of sub-Rule
(I) of Rule 27 Order 41. That power inheres in the court and that court alone
which is hearing the appeal. It is the requirement of court (and not of any of
the parties) and the conscience of the court feeling inhibited in satisfactory
disposal of !is which rule the exercise of this power. •
F
B.S. Appeals allowed.