UTTARADI MUTTversusRAGHAVENDRA SWAMY MUTT

208                      [2018]REPORTS
               SUPREME COURT    12 S.C.R. 208              [2018] 12 S.C.R.


A                             UTTARADI MUTT
                                        v.
                      RAGHAVENDRA SWAMY MUTT
                        (Civil Appeal No. 9333 of 2018)
B                            SEPTEMBER 26, 2018
             [DIPAK MISRA, CJI, A. M. KHANWILKAR AND
                       DR. D.Y. CHANDRACHUD, JJ.]
             Code of Civil Procedure, 1908 – Or. XLI, r.27 – Application
      under, allowed – Propriety of – Suit for injunction filed by the
C
      appellant-plaintiff against respondent-defendant – Suit dismissed
      by trial court – Appellant filed first appeal wherein respondent filed
      applications u/Or. XLI, r.27 to produce additional evidence – First
      Appellate Court (FAC) dismissed the said applications, while allowed
      the appeal filed by the appellant – In second appeal, High Court
D     inter alia allowed the applications filed by the respondent – Held: In
      the present case, the High Court opined that the documents proposed
      to be produced by the respondent were official records and public
      documents which, if proved, could enable the Court to pronounce
      the judgment and do complete justice to the parties – Said view of
      High Court is impregnable.
E
             Code of Civil Procedure, 1908 – Or. XLI, rr.23, 23-A and
      25-29 – Suit for injunction filed by the appellant against respondent
      – Suit dismissed by trial court – Appellant filed first appeal wherein
      respondent filed applications u/Or. XLI, r.27 to produce additional
      evidence – First Appellate Court (FAC) allowed the appeal filed by
F
      the appellant – In second appeal filed by the respondent, High Court
      inter alia relegated the parties before the trial court for re-deciding
      the suit – Propriety of – Held: While exercising discretion u/Or. XLI,
      r.23-A for remanding the cases, the Appellate Court is duty bound
      to keep in mind Or.XLI , rr.25 and 26 – There are two options
G     available to the Appellate Court – First, it may record the evidence
      itself by permitting the parties to produce evidence before it as per
      Or. XLI,r. 27 or direct the Court from whose decree the appeal under
      consideration has arisen, to do so – In the present case, the High
      Court did not record any special reasons for relegating the parties
      before the “trial court” to re-decide the suit – Only reason, which
H
                                       208
    UTTARADI MUTT v. RAGHAVENDRA SWAMY MUTT                               209


weighed with the High Court was that it was necessary to find out         A
the truth, as it is the duty of the Court – That could be done even by
directing the FAC to record evidence, which it was competent to do
while hearing the first appeal – For that, as per Or. XLI, r.25, the
High Court could have framed the issues and referred them for
adjudication before the FAC, against whose decree the second
                                                                          B
appeal was preferred before the High Court – Considering the
chequered history of the present litigation, the fact that the suit was
filed in the year 1992, High Court directed to frame the points on
which additional evidence could be adduced by the respondent and
call upon the FAC to record additional evidence – Impugned
judgment of the High Court set aside to the extent it relegated the       C
parties before the trial court.
       Code of Civil Procedure, 1908 – Or.XLI, r.27 – Application
under, to produce additional evidence, allowed – Implication of –
Suit for injunction filed by the appellant against respondent – Suit
dismissed by trial court – Appellant filed first appeal wherein           D
respondent filed applications u/Or. XLI, r.27 to produce additional
evidence, dismissed – High Court inter alia allowed the applications
filed by the respondent – Plea of appellant inter alia that even if
there was sufficient ground for allowing the applications filed by
the respondent for production of additional evidence, the
genuineness and the contents of the additional documents would            E
have to be proved by the party placing reliance – Held: High Court
made it clear that the fact that the applications are allowed per se is
not to give any direction to straightaway exhibit the additional
documents, but that it could be exhibited subject to proof –
Documents will have to be proved in accordance with law.                  F
      Disposing of the appeal, the Court
       HELD: 1.1 In the present case, the High Court opined
that the documents proposed to be produced by the respondent
were official records and public documents which, if proved, could
enable the Appellate Court to pronounce the judgment and do               G
full, complete and effectual justice to the parties. In other words,
the proposed additional evidence was required by the Court to
answer the subject matter and in particular, to pronounce the
judgment on material issues. On analysing the reasons recorded
by the First Appellate Court for rejecting the three applications         H
210            SUPREME COURT REPORTS                     [2018] 12 S.C.R.


A     filed by the respondent under Order XLI Rule 27 of CPC and
      juxtaposing the same with the reasons recorded by the High Court
      for allowing those applications, it is clear that the conclusion
      reached by the High Court on this count is impregnable.
      [Paras 9, 10] [217-G-H; 218-A-B]
B           1.2 The High Court made it amply clear that the fact that
      the applications are allowed per se is not to give any direction to
      straightaway exhibit the additional documents, but that it could
      be exhibited subject to proof. The High Court has unambiguously
      observed that the documents will have to be proved in accordance
      with law. By allowing the three applications filed by the respondent
C     under Order XLI Rule 27 of CPC, it would not follow that the
      additional documents/additional evidence can be straightaway
      exhibited rather, the respondent would have to not only prove
      the existence, authenticity and genuineness of the said documents
      but also the contents thereof, as may be required by law.
D     [Para 11] [218-D-E]
             1.3 Under Rule 23 of CPC, the Appellate Court could
      remand the case before it, where the Court from whose decree
      an appeal was preferred had disposed of the suit upon a preliminary
      point and that decree was reversed in appeal. Rule 23-A deals
E     with other (residuary) category of cases to be remanded by the
      Appellate Court in an appeal against a decree which has been
      disposed of otherwise than on a preliminary point. While
      exercising such discretion, the Appellate Court is duty bound to
      keep in mind Rules 25 and 26 of Order XLI of the CPC. In other
      words, there are two options available to the Appellate Court.
F     First, it may record the evidence itself by permitting the parties
      to produce evidence before it as per Rule 27 of Order XLI or
      direct the Court from whose decree the appeal under
      consideration has arisen, to do so. In the present case, the High
      Court has not recorded any special reasons as to why the parties
G     should be relegated before the “trial Court” to re-decide the
      suit. The only reason, which, presumably, weighed with the High
      Court, was that it was necessary to find out the truth, as it is the
      duty of the Court. That could be done even by directing the First
      Appellate Court to record evidence, which it was competent to

H
    UTTARADI MUTT v. RAGHAVENDRA SWAMY MUTT                             211


do while hearing the first appeal, had it allowed the applications      A
under Order XLI Rule 27 of CPC by the respondent. For that, as
per Rule 25 of Order XLI of the CPC, the High Court could have
framed the issues and referred them for adjudication before the
First Appellate Court, against whose decree the second appeal
was preferred before the High Court. The High Court could have
                                                                        B
issued directions to the First Appellate Court to determine any
question of fact including the existence and genuineness of the
additional evidence or for that matter, whether the contents of
the said documents had been duly proved by the party relying
thereon. After recording the evidence in support of such relevant
matters as the High Court may have directed, the First Appellate        C
Court could proceed to try such issues and return the evidence
to the High Court together with its findings thereon within the
prescribed time. Such a course was permissible in terms of Rule
28 of Order XLI of CPC. [Paras 14, 15 and 17] [219-F-G; 220-E;
222-C-E]
                                                                        D
       1.4 Considering the chequered history of this litigation and
the fact that the suit was filed in the year 1992, and that the writ
petition against the order passed by the Superintendent of Land
Records is stated to be pending before the High Court, the High
Court is directed to frame the points on which additional evidence
could be adduced by the respondent and call upon the First              E
Appellate Court to record additional evidence and also consider
the question of genuineness and authenticity of the additional
evidence, including as to whether the contents thereof have been
proved by the party relying thereon, and thereafter, to return the
evidence to the High Court. The High Court may then consider            F
the Second Appeal on the substantial questions of law already
framed or such other substantial questions of law that may arise
for its consideration. Such a course would meet the ends of
justice. The impugned judgment and order of the High Court is
set aside in part, to the extent that it relegated the parties before
the trial Court for re-deciding the suit. [Paras 18, 19] [223-C-F]      G

      Union of India v. Ibrahim Uddin and Anr. (2012) 8 SCC
      148 : [2012] 8 SCR 35 – relied on.


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212            SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A           H.P. Vedavyasachar v.. Shivashankara and Anr.
            (2009) 8 SCC 231 : [2009] 12 SCR 268 which has also
            considered the decision in Shanti Devi v. Daropti Devi
            (2006) 13 SCC 775 : [2006] 10 Suppl. SCR 1050 –
            referred to.
B                              Case Law Reference
      [2012] 8 SCR 35                      relied on              Para 6
      [2009] 12 SCR 268                    referred to            Para 16
      [2006] 10 Suppl. SCR 1050            referred to            Para 16
C           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9333
      of 2018.
            From the Judgment and Order dated 14.11.2017 of the High Court
      of Karnataka at Bengaluru in R.S.A. No. 100446 of 2015.
            Mukul Rohatgi, Ranjit Kumar, J. V. Kolar, Sr. Advs., Saurabh S.
D
      Sinha, Rahul Pratap, Advs. for the Appellant.
            Vikas Singh, Huzefa Ahmadi, Sr. Advs., Rohan Sharma, Vishnu
      Sharma, Ms. Anupama Sharma, Ms. Rangoli Seth, Ms. Sonali Negi,
      Advs. for the Respondent.
E            The Judgment of the Court was delivered by
             A. M. KHANWILKAR, J. 1. This appeal arises from the
      judgment and decree dated 14th November, 2017 passed by the High
      Court of Karnataka at Bangalore in R.S.A. No.100446 of 2015, whereby
      the High Court was pleased to set aside the judgment and decree passed
F     by the First Appellate Court and also that of the trial Court and relegated
      the parties before the trial Court, by allowing three applications filed by
      the respondent/defendant under Order XLI Rule 27 of the Civil Procedure
      Code, 1908 (for short, “CPC”). The High Court directed the trial Court
      to decide the suit afresh by giving its findings in light of the additional
      evidence adduced. The operative part of the order passed by the High
G     Court reads thus:
            “25. Therefore, this Court cannot decide the substantial questions
            of law on which the said present second appeal was admitted on
            13.04.2016 at this stage and the matter deserves to go back to the

H
     UTTARADI MUTT v. RAGHAVENDRA SWAMY MUTT                                  213
               [A.M. KHANWILKAR, J.]

      trial Court by allowing the three applications filed under Order 41     A
      Rule 27 of the CPC. All the three applications filed by the
      Defendant/Appellant-RSM under Order 41 Rule 27 of the CPC
      therefore, are allowed and setting aside the order dated 22.04.2015
      passed by the FAC in its entirety, because even otherwise it
      appears to be self contradictory and vague partial injunction
                                                                              B
      granted by FAC, the matter is restored back to the learned trial
      Court to allow the said additional evidences to be placed on record
      and allow the parties to prove and disprove the same in
      accordance with law and then re-decide the suit giving its
      findings in the light of such additional evidence.
      In view of the long lapse of time, the trial Court is requested to      C
      expedite the matter and decide the suit again expeditiously.
      The present appeal is accordingly disposed of. No costs.
      All I.As. are also disposed of.”
       2. The central issue in this appeal is whether the High Court was      D
justified in allowing the three applications filed by the respondent/
defendant under Order XLI Rule 27 before the First Appellate Court.
Furthermore, even if there was just and sufficient reason for allowing
the three applications, was the High Court justified in relegating the
parties before the trial Court and directing the trial Court to re-decide
the suit by giving its findings in light of the additional evidence?          E

       3. This case has a chequered history. Shorn of unnecessary
details we propose to refer only to the facts relevant to decide this
appeal. In the first appeal filed by the appellant/plaintiff before the
Principal Senior Civil Judge & Chief Judicial Magistrate, Dharwad
bearing R.A. No.124 of 2014 (Original R.A. No.14 of 2011 before the           F
Court of Senior Civil Judge, Gangawathi) against the dismissal of the
suit by the Additional Civil Judge, Gangawathi vide judgment and decree
dated 18th June, 2011 in O.S. No.74 of 2010 (Original O.S. No.193 of
1992), three applications under Order XLI Rule 27 for permission to
produce additional evidence came to be filed by the respondent/               G
defendant. The First Appellate Court considered the stated applications
along with the first appeal preferred by the appellant/plaintiff. The First
Appellate Court was pleased to dismiss the said applications preferred
by the respondent/defendant; and allowed the appeal filed by the

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214            SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A     appellant/plaintiff on the basis of the evidence already brought on record
      before the trial Court. The suit filed by the appellant was decreed in part
      by the First Appellate Court. The operative order passed by the First
      Appellate Court dated 22nd April, 2015, reads thus:
                                        “ORDER
B           The Application filed by the Appellant under Order 41 Rule 27
            R/w Section 151 of the Code of Civil Procedure is dismissed.
            The Application filed by the Appellant filed by the Appellant
            under Order 14 Rule 5 R/w Section 151 of the Code of Civil
            Procedure is dismissed.
C
            The Application filed by the Respondent under Order 14 Rule 5
            R/w Section 151 of the Code of Civil Procedure is dismissed.
            The Applications filed by the Respondent under Order 41 Rule 27
            R/w Section 151 of the Code of Civil Procedure are dismissed.
D           The Application filed by the Respondent under Section 151 of the
            Code of Civil Procedure seeking survey of Sy.No.192 of Anegundi
            Village is dismissed.
            The Application filed by the Respondent under Section 340 of the
            Code of Criminal Procedure is dismissed.
E           The Appeal filed by the Appellant under Order 41 Rule 1 of the
            Code of Civil Procedure is allowed in part. The Judgment and
            Decree dated 18-06-2011 passed by the Court of the Addl. Civil
            Judge, Gangavathi in O.S.No.74/2010 are set-aside.
            The Suit of the Plaintiff is decreed in part. Subject to the right, if
F           any, of the Defendant Mutt to perform Aradhanas and Poojas of
            the Vrindavanas in the Suit property, the Defendant is restrained
            by way of Perpetual Injunction from interfering with the Plaintiff
            Mutt’s possession and enjoyment of the Suit property. It is hereby
            clarified that the above said raider shall not be construed as
G           declaring the right of the Defendant Mutt to perform Aradhanas
            and Poojas.
            Costs are made easy.
            The Office is directed to transmit a copy of the Judgment and
            Decree to the trial Court along with LCR.”
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       UTTARADI MUTT v. RAGHAVENDRA SWAMY MUTT                                 215
                 [A.M. KHANWILKAR, J.]

       4. Aggrieved by the aforesaid decision, the respondent/defendant        A
preferred a second appeal before the High Court, being R.S.A. No.100446
of 2015.
      5. As aforesaid, for the nature of the order that we propose to
pass and the issues to be answered in the present appeal, suffice it to
observe that the second appeal, being R.S.A. No.100446 of 2015 filed           B
by the respondent/defendant before the High Court of Karnataka at
Bangalore, was finally decided vide impugned judgment dated
14th November, 2017. The High Court reversed the opinion of the First
Appellate Court including the rejection of stated three applications filed
by the respondent/defendant under Order XLI Rule 27 of CPC. The
High Court instead allowed those applications and relegated the parties        C
before the trial Court, as noted in the operative part of the impugned
judgment extracted above.
       6. As regards the first issue as to whether the High Court has
recorded sufficient reasons for allowing the three applications for
permission to produce additional evidence filed by the respondent/             D
defendant under Order XLI Rule 27 of CPC before the First Appellate
Court, the High Court has opined that the additional evidence sought to
be brought on record, subject to proof, by the respondent/defendant,
definitely, could have a material bearing on the issues involved in the suit
and determining the rights of the appellant/ plaintiff to claim injunction     E
against the respondent/defendant on the basis of the total land being in
their ownership or possession (whether it was 14 Acres 7 Guntas or 27
Acres 30 Guntas). The High Court was of the view that it could change
the entire basis of the rights of the respective parties and therefore such
additional evidence sought to be produced by the respondent/defendant
ought not to be shut out. The High Court noted that the First Appellate        F
Court delivered a contrived judgment without analysing such additional
evidence and otherwise also, it was a substantial cause for reaching just
conclusions and for correct evaluation of the rights of the respective
parties, satisfying the parameters of Order XLI Rule 27 of CPC. To
buttress this conclusion, the High Court relied on the dictum in               G
paragraph 49 of the decision of this Court in Union of India Vs. Ibrahim
Uddin and Anr.1. What essentially weighed with the High Court for
showing indulgence to the respondent/defendant can be discerned from

1
    (2012) 8 SCC 148
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216            SUPREME COURT REPORTS                        [2018] 12 S.C.R.


A     the observations in paragraph 17 of the impugned judgment which read
      thus:
            “17. Prima facie, this Court finds that the additional evidence
            mostly in the form of Government letters and Orders could have
            a major impact on the issues involved before the Courts below
B           and therefore deserved to be considered by the Court after being
            led and proved in accordance with law by concerned party. Merely
            because the order dated 07.09.1974 passed by Superintendent of
            Land Records became the subject matter of order by the KAT
            and even this Court, it does not prevent the trial Court or the FAC
            to allow such additional evidence taken on record and allow it to
C           be proved in accordance with law and then consider and weigh
            such evidence and then decide the issues in accordance with law.
            Most of these documents were Government communication and
            Orders and were not in the control and possession of the defen-
            dant-RSM and defendant-RSM being not a party before KAT in
D           the appeal filed by Vyasraja Mutt, the FAC should have allowed
            these Additional evidence which could have helped it in
            completing the quest for truth and meet the ends of justice and
            deliver a correct judgment. The failure to do so has resulted in
            serious miscarriage of justice. Without the title and peaceful
            possession of the entire land of 27 Acres and 30 Guntas proved
E           by the plaintiff/respondent-UM, in the face of such contradicting
            Additional Evidence, the self contradictory and vague injunction
            granted by FAC cannot be sustained.”
            For that reason, the High Court reversed the view taken by the
      First Appellate Court on the three applications preferred by the
F     respondent/defendant under Order XLI Rule 27 of CPC and deemed it
      appropriate to relegate the parties to the trial Court.
             7. According to the appellant, the High Court ought not to have
      interfered with the discretion exercised by the First Appellate Court in
      dismissing the three applications for permission to produce additional
G     evidence preferred by the respondent/defendant. Furthermore, the
      reasons weighed with the High Court, in no case, satisfied the test for
      production of additional evidence predicated in Order XLI Rule 27 of
      CPC.

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     UTTARADI MUTT v. RAGHAVENDRA SWAMY MUTT                                 217
               [A.M. KHANWILKAR, J.]

       8. This objection need not detain us as we are of the considered      A
opinion that the First Appellate Court would have been within its
jurisdiction to permit the party to the proceedings to produce additional
evidence before it for full, complete and effectual adjudication of the
proceedings. The purport of Order XLI Rule 27 of CPC has been
considered by this Court in Union of India (supra). The Court adverted
                                                                             B
to the exposition made in earlier decisions of the Court from paragraphs
36 to 46 and summed up the proposition in paragraphs 47 and 48 as
under:
      “47. Where the additional evidence sought to be adduced removes
      the cloud of doubt over the case and the evidence has a direct
      and important bearing on the main issue in the suit and interest of    C
      justice clearly renders it imperative that it may be allowed to be
      permitted on record, such application may be allowed.
       48. To sum up on the issue, it may be held that an application for
taking additional evidence on record at a belated stage cannot be filed as
a matter of right. The court can consider such an application with           D
circumspection, provided it is covered under either of the prerequisite
conditions incorporated in the statutory provisions itself. The discretion
is to be exercised by the court judicially taking into consideration the
relevance of the document in respect of the issues involved in the case
and the circumstances under which such an evidence could not be led in       E
the court below and as to whether the applicant had prosecuted his case
before the court below diligently and as to whether such evidence is
required to pronounce the judgment by the appellate court. In case the
court comes to the conclusion that the application filed comes within the
four corners of the statutory provisions itself, the evidence may be taken
on record, however, the court must record reasons as on what basis           F
such an application has been allowed. However, the application should
not be moved at a belated stage.”
       9. In the present case, the High Court has opined that the
documents proposed to be produced by the respondent/defendant were
official records and public documents which, if proved, could enable the     G
Appellate Court to pronounce the judgment and do full, complete and
effectual justice to the parties. In other words, the proposed additional
evidence was required by the Court to answer the subject matter and in
particular, to pronounce the judgment on material issues.
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218             SUPREME COURT REPORTS                           [2018] 12 S.C.R.


A            10. In paragraphs 49-52 of the same reported decision of Union
      of India (supra), the Court dealt with the question of stage of
      consideration of applications under Order XLI Rule 27 of CPC, in
      reference to earlier decisions of this Court. Be that as it may, on analyising
      the reasons recorded by the First Appellate Court for rejecting the three
      applications filed by the respondent/defendant under Order XLI Rule 27
B
      of CPC and juxtaposing the same with the reasons recorded by the High
      Court for allowing those applications, in our opinion, the conclusion reached
      by the High Court on this count is impregnable.
             11. That takes us to the second contention raised by the appellant
      that even if there was sufficient ground for allowing the stated
C     applications filed by the respondent/defendant for production of
      additional evidence, the genuineness and the contents of the additional
      documents would have to be proved by the party placing reliance thereon.
      As regards this plea, we find that the High Court has made it amply
      clear that the fact that the applications are allowed per se is not to give
D     any direction to straightaway exhibit the additional documents, but that it
      could be exhibited subject to proof. The High Court has unambiguously
      observed that the documents will have to be proved in accordance with
      law. We make it amply clear that by allowing the three applications filed
      by the respondent/defendant under Order XLI Rule 27 of CPC, it would
      not follow that the additional documents/additional evidence can be
E     straightaway exhibited rather, the respondent would have to not only
      prove the existence, authenticity and genuineness of the said documents
      but also the contents thereof, as may be required by law.
             12. The further grievance of the appellant, however, is that the
      High Court, in any case, ought not to have relegated the parties before
F     the trial Court with a direction to the trial Court to re-decide the suit.
      The respondent, however, would rely on the provisions of the amended
      Rule 23 of the CPC “as applicable to the State of Karnataka”. The
      same reads thus:
             “23. Remand of case by Appellate Court:- “Where the Court
G            from whose decree an appeal is preferred has disposed of the
             suit upon a preliminary point and the decree is reversed in appeal,
             or where the Appellate Court in reversing or setting aside
             the decree under appeal considers it necessary in the
             interests of justice to remand the case, the Appellate Court
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     UTTARADI MUTT v. RAGHAVENDRA SWAMY MUTT                                    219
               [A.M. KHANWILKAR, J.]

       may by order remand the case, and may further direct what issue          A
       or issues shall be tried in the case so remanded and whether any
       further evidence shall or shall not be taken after remand, and
       shall send a copy of its judgment or order to the Court from whose
       decree the appeal is preferred, with directions to re-admit the suit
       under its original number in the register of civil suits, and
                                                                                B
       proceed to determine the suit; the evidence, if any, recorded
       during the original trial shall subject to all just exceptions, be
       evidence during the trial after remand.”
                                                      (emphasis supplied)
        13. Indeed, the provision as applicable to the State of Karnataka       C
is not limited to the decree disposing of the suit on a preliminary point but
also where the Appellate Court in reversing or setting aside the decree
under appeal, considers it necessary, in the interest of justice, to remand
the case. Notably, the Karnataka amendment has been introduced vide
the Karnataka Gazette entry dated 5th November, 1959. The effect of
that provision is reinforced by Central Amendment Act 104 of 1976               D
which introduced Rule 23-A. The said Rule 23-A reads thus:
       “23-A. Remand in other cases.- Where the Court from whose
       decree an appeal is preferred has disposed of the case otherwise
       than on a preliminary point, and the decree is reversed in appeal
       and a re-trial is considered necessary, the Appellate Court shall        E
       have the same powers as it has under rule 23.”
       14. We say so because under Rule 23 of CPC, the Appellate
Court could remand the case before it where the Court from whose
decree an appeal was preferred, had disposed of the suit upon a
preliminary point and that decree was reversed in appeal. Rule 23-A             F
deals with other (residuary) category of cases to be remanded by the
Appellate Court in an appeal against a decree which has been disposed
of otherwise than on a preliminary point. While exercising such
discretion, the Appellate Court is duty bound to keep in mind Rules 25
and 26 of Order XLI of the CPC, which read thus:                                G
       “25. Where Appellate Court may frame issues and refer
       them for trial to Court whose decree appealed from.- Where
       the Court from whose decree the appeal is preferred has omitted
       to frame or try any issue, or to determine any question of fact,
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220                SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A               which appears to the Appellate Court essential to the right
                decision of the suit upon the merits, the Appellate Court may, if
                necessary, frame issues, and refer the same for trial to the Court
                from whose decree the appeal is preferred and in such case shall
                direct such Court to take the additional evidence required;
B           And such Court shall proceed to try such issues, and shall return
      the evidence to the Appellate Court together with its findings thereon
      and the reasons therefor [within such time as may be fixed by the
      Appellate Court or extended by it from time to time].”
                “26. findings and evidence to be put on record –
C               Objections to finding- (1) Such evidence and findings shall form
                part of the record in the suit; and either party may, within a time to
                be fixed by the Appellate Court, present a memorandum of
                objections to any finding.
                (2) Determination of appeal.- After the expiration of the period
D               so fixed for presenting such memorandum the Appellate Court
                shall    proceed to determine the appeal.”
            15. In other words, there are two options available to the
      Appellate Court. First, it may record the evidence itself by
      permitting the parties to produce evidence before it as per Rule 27 of
E     Order XLI or direct the Court from whose decree the appeal under
      consideration has arisen, to do so.
             16. The appellants have placed reliance on H.P. Vedavyasachar
      Vs. Shivashankara and Anr.2, which has also considered the decision
      in Shanti Devi Vs. Daropti Devi3. In the case of H.P. Vedavyasachar
F     (supra), it was specifically contended that no case was made out to
      adduce additional evidence and in that event, the entire case could not
      have been remanded to the trial Court for fresh disposal after recording
      fresh evidence as it was not a case envisaged under Order XLI Rule 23
      of CPC. This contention has been considered in paragraphs 7 to 10 of
      the said decision, in the following words:
G
                “7. However, so far as the second contention raised by the learned
                counsel for the appellant is concerned, in our opinion, the same
                has substance. When an application for adducing additional
                evidence is allowed the appellate court has two options open
      2
          (2009) 8 SCC 231
H     3
          (2006) 13 SCC 775
UTTARADI MUTT v. RAGHAVENDRA SWAMY MUTT                                  221
          [A.M. KHANWILKAR, J.]

 to it. It may record the evidence itself or it may direct the           A
 trial court to do so.
 8. Order 41 Rule 28 CPC reads as under:
 “28. Mode of taking additional evidence.—Wherever additional
 evidence is allowed to be produced, the appellate court may either
 take such evidence, or direct the Court from whose decree the           B
 appeal is preferred, or any other subordinate court, to take such
 evidence and to send it when taken to the appellate court.”
 For the aforementioned purpose, in our considered opinion,
 the High Court could not have directed the trial court to
 dispose of the suit after taking evidence. Such an order of             C
 remand could be only in terms of Order 41 Rule 23, Order
 41 Rule 23-A or Order 41 Rule 25 of the Code. None of the
 said provisions have any application in the instant case.
 9. This Court in Shanti Devi v. Daropti Devi1 has held as under:
 (SCC p. 778, para 13)                                                   D
 “13. But the same by itself could not be a ground for
 remitting the entire suit to the learned trial Judge upon
 setting aside the decree of the learned trial court. The
 power of remand vests in the appellate court either in terms
 of Order 41 Rules 23 and 23-A or Order 41 Rule 25 of the                E
 Code of Civil Procedure. Issue 4 was held to have been wrongly
 framed. Onus of proof was also wrongly placed and only in that
 view of the matter the High Court thought it fit to remit it to the
 learned trial Judge permitting the parties to adduce fresh evidence.
 It, therefore, required the learned trial Judge to determine a          F
 question of fact, which according to it was essential, upon reframing
 the issue.”
 10. None of the aforementioned provisions were available to the
 High Court. We, therefore, in modification of the order passed by
 the High Court direct as under:
                                                                         G
 (i) The learned 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.


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222            SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A           (ii) Such an exercise by the learned trial court must be completed
            within a period of four weeks from the date of communication of
            this order.
            (iii) The first appellate court must dispose of the first appeal on
            receipt of the said order as also the evidence as adduced as
B           expeditiously as possible and not later than eight weeks from the
            date of receipt of the said report.
            We are passing the order keeping in view the fact that the appellant
            is said to have been dispossessed as far back as in 1993.”
                                                           (emphasis supplied)
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             17. In the present case, the High Court has not recorded any
      special reasons as to why the parties should be relegated before the
      “trial Court” to re-decide the suit. The only reason, which, presumably,
      weighed with the High Court, is that it was necessary to find out the
      truth, as it is the duty of the Court. That could be done even by directing
D     the First Appellate Court to record evidence, which it was competent to
      do while hearing the first appeal, had it allowed the applications under
      Order XLI Rule 27 of CPC by the respondent/defendant. For that, as
      per Rule 25 of Order XLI of the CPC, the High Court could have framed
      the issues and referred them for adjudication before the First Appellate
E     Court, against whose decree the second appeal was preferred before
      the High Court. It may be useful to advert to Rules 28 & 29 of Order
      XLI of C.P.C. The same read thus:
            “28. Mode of taking additional evidence.- Wherever
            additional evidence is allowed to be produced, the Appellate Court
F           may either take such evidence, or direct the Court from whose
            decree the appeal is preferred, or any other subordinate Court, to
            take such evidence and to send it when taken to the Appellate
            Court.”
            “29. Points to be defined and recorded.- Where
            additional evidence is directed or allowed to be taken, the
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            Appellate Court shall specify the points to which the evidence is
            to be confined, and record on its proceedings the points so
            specified.”


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     UTTARADI MUTT v. RAGHAVENDRA SWAMY MUTT                                 223
               [A.M. KHANWILKAR, J.]

       The High Court could have issued directions to the First              A
Appellate Court to determine any question of fact including the
existence and genuineness of the additional evidence or for that matter,
whether the contents of the said documents had been duly proved by the
party relying thereon. After recording the evidence in support of such
relevant matters as the High Court may have directed, the First
                                                                             B
Appellate Court could proceed to try such issues and return the
evidence to the High Court together with its findings thereon within the
prescribed time. Such a course was permissible in terms of Rule 28 of
Order XLI of CPC. And on receipt of the report, the High Court could
then consider the substantial questions of law already framed while
admitting the second appeal and finally decide the same on all issues.       C
       18. Considering the chequered history of this litigation and the
fact that the suit was filed in the year 1992, and that the writ petition
against the order passed by the Superintendent of Land Records is stated
to be pending before the High Court, it would be appropriate that the
High Court frames the points on which additional evidence could be           D
adduced by the respondent/defendant and call upon the First Appellate
Court to record additional evidence and also consider the question of
genuineness and authenticity of the additional evidence, including as to
whether the contents thereof have been proved by the party relying
thereon, and thereafter, to return the evidence to the High Court
together with its findings thereon and reasons thereof within the            E
prescribed time. Such a course would meet the ends of justice.
       19. Accordingly, we set aside the impugned judgment and order
of the of the High Court in part, to the extent that it has relegated the
parties before the trial Court for re-deciding the suit after allowing the
respondent/defendant to produce additional evidence in accordance with       F
law. Instead, the appeal is restored to the file of the High Court to its
original number. The High Court shall frame points on which the
additional evidence is allowed to be produced and direct the First
Appellate Court to take the additional evidence on record in
accordance with law and then return the evidence to the High Court           G
together with its findings thereon and the reasons thereof, within the
prescribed time. Such directions be issued by the High Court
expeditiously, preferably within two months from today. On receipt of


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224             SUPREME COURT REPORTS                       [2018] 12 S.C.R.


A     the said report from the First Appellate Court, the High Court may then
      consider the Second Appeal on the substantial questions of law already
      framed or such other substantial questions of law that may arise for its
      consideration.
             20. The appeal and the accompanying application are disposed of
B     in the aforementioned terms with no order as to costs.


      Divya Pandey                                            Appeal disposed of.



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