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Judgment
The present Appeal assails the judgment and decree dated 6.02.2014 in A.S.No.157 of 2010 on the file of the Court of the XXVII Additional Chief
Judge, City Civil Court, Secunderabad (lower appellate Court), whereunder and whereby the lower appellate Court reversed the judgment and decree
dated 17.08.2010 in O.S.No.515 of 2007 on the file of the Court of the XVIII Junior Civil Judge, Secunderabad (trial Court), whereby the trial Court
decreed the suit of the plaintiffs seeking permanent injunction over the suit schedule A & B property.
The appellants herein are the plaintiffs and the respondent herein is the defendant in the said suit. For the sake of convenience, the parties
hereinafter shall be referred to as they are arrayed in the said suit.
The brief case of the plaintiffs is that they filed O.S.No.515 of 2007 (Old No.894 of 2004) seeking permanent injunction against the Posts and
Telegraphs Employees Co-operative Housing Society Limited from interfering with their possession and enjoyment over the schedule A & B
properties situated within the Tokatta Village, Cantonment Limits of Secunderabad. The first plaintiff and late husband of second plaintiff purchased
the house property jointly ground floor premises in Plot No.60 in Sy.No.160 with an undivided share of land admeasuring 150 square yards out of 300
square yards through a registered sale deed dated 18.04.1996 vide Document No.1152 of 1996 for a consideration of Rs.4,50,000/- (referred as
‘A’ schedule property). The third and fourth plaintiffs purchased the first floor premises in the same Plot No.60 through a registered sale deed
for the same consideration (referred to as ‘B’ schedule property). The plaintiffs are joint family members and doing business jointly in the name
and style of ‘Paramount Auto Stores’. Since the date of purchase of A & B schedule property, which is an independent house, the plaintiffs are
in possession and enjoyment without any interruption. The defendant society was formed in the year 1980 with an object to provide house sites to its
employees. One Mr.D.V.Krishnam Raju was the vendor of the plaintiffs and he purchased open Plot No.60 admeasuring 300 square yards from the
defendant society through a registered sale deed dated 19.04.1985 vide Document No.1050 of 1985 and also obtained permission for construction of a
house vide permission dated 12.06.1985 and sold the same to the plaintiffs in the year 1996. The plaintiffs would state that there are two bore wells in
the North-East corner of the house with a distance of six feet. One bore well was dried which was in the premises of the plaintiffs, and the other bore
well is having water and as such when the plaintiffs are trying to fetch water from the other bore well which is outside the premises, the President and
Secretary of the Society objected them in January 2003 by saying that their vendor encroached two feet width of land belonging to the society which
was left out for park and dug bore well in the encroached area in the year 1989 even without conducting survey or without measuring the
plaintiffs’ plot or vacant plot. They would further assert that to settle the dispute amicably, the plaintiffs paid an amount of Rs.1,50,000/- by way of
cheque bearing No.134684 dated 04.02.2003 to the defendant society. In spite of it on 15.07.2004 the President and Secretary along with ten persons
instructed the plaintiffs not to draw water from the second bore well and also warned them to close the gate existing in the North Eastern side of the
house. Therefore, the plaintiffs filed the present suit seeking permanent injunction.
In the written statement filed by the defendant society contending that it already filed a suit O.S.No.37 of 1996 on the file of the Court of III Senior
Civil Judge, City Civil Court, Secunderabad, against the same property, which was decreed in its favour and the said judgment was also executed as
per the orders in E.P.No.126 of 1999, and therefore, the present suit is hit by the doctrine of res judicata as the plaintiffs purchased the suit property
during the pendency of the said suit and it is also hit by doctrine of lis pendens. The defendant would further state that D.V.Krishnam Raju did not
obtain permission while executing the sale deeds in their favour and thus, they are not binding or valid.
The plaintiffs, in support of their case, had examined P.Ws.1 to 4 and relied upon Exs.A-1 to A-12. The President of the defendant Society was
examined as D.W.1 and relied upon Exs.B-1 to B-3.
The trial Court, after appreciating the evidence on record, decreed the suit with costs in favour of the plaintiffs granting perpetual injunction against
the defendant society from interfering into the peaceful possession and enjoyment of the plaintiffs over the suit schedule ‘A’ & ‘B’
properties. Aggrieved by the said judgment and decree, the defendant filed A.S.No.157 of 2010 and the lower appellate Court by observing that the
application filed by the defendant on 31.12.2010 vide S.RR.No.14472 of 2010 in the appeal under Order 41 Rule 27 read with Section 151 CPC
seeking permission to produce additional evidence regarding audit report dated 10.04.2003 along with details of receipts and payment, profit and loss
account, balance sheet and statement of accounting policy for the period of accounting year 2002-03 and the said evidence carry considerable
importance in view of the observations and findings made by the trial Court, remanded the matter for trial afresh by giving opportunity to both sides.
Hence, this second appeal by the plaintiffs.
In the present appeal, the appellants would contend that the lower appellate Court committed error in allowing the petition for additional evidence
without recording reasons as per Order 41` Rule 27 CPC and more over, the additional evidence is not relevant to the issues in the suit. They would
further contend that the lower appellate Court instead of deciding the appeal on merits, given further opportunity which was never availed by them in
the trial Court and also failed to record reasons, and thus, the judgment is unsustainable in law, and therefore prayed for allowing the present appeal.
Heard the learned counsel appearing for the appellants and it is represented on behalf of the Senior Counsel of the respondent that he has given up
vakalat and thereafter the Society failed to engage counsel to represent the matter.
The main ground of attack made by the plaintiffs in this appeal is that the lower appellate Court allowed the appeal even without recording reasons
in terms of Order 41 rule 27 CPC, which is a petition filed for additional evidence, was allowed. At this juncture, it is apposite to extract Order 41 Rule
27 CPC for better understanding of the matter.
“27. Production of additional evidence in Appellate Court.â€"(1) The parties to an appeal shall not be entitled to produce additional evidence,
whether oral or documentary, in the Appellate Court. But if â€
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his
knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other
substantial cause,
The Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.’
As per Order 41 Rule 23 CPC, the Appellate Court can remand the matter, and may further direct what issue or issues shall be tried in the case of
remand and Order 41 Rule 25 CPC clearly lays down that 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, which appears to the Appellate Court essential to the right decision of the suit on the merits, if the
Appellate Court feels it necessary it has to frame an issue and refer the same to the trial Court with a direction to take the additional evidence
required.
Though the original suit was filed for peaceful possession and enjoyment of ‘A’ & ‘B’ schedule properties, the main dispute between
the parties is only with regard to bore well. There is no dispute in respect of execution of sale deeds by D.V.Krishnam Raju in favour of plaintiffs and
their possession in the suit schedule properties. It is only when the plaintiffs intended to fetch water from the bore well, which is situated outside the
premises, the defendant Society interfered. In fact, the plaintiffs would assert that they settled the issue with the defendant society on payment of
Rs.1,50,000/-, whereas the defendant society contends that as per the letter dated 31.01.2003 under Ex.B1 the said amount was given as a donation
and it is prepared to return the said amount to the plaintiffs. The trial Court during discussion observed that auditing report is not filed by it, though the
society stated that the said amount was shown in the auditing account. Further, the defendant society would state that the said amount was spent
towards development of the colony, particularly, Court cases, drainage and road. The trial Court also observed that the Society did not raise an
objection when the bore well was dug outside the premises. Except the plaintiffs, no other persons are fetching water from the said bore well, and as
such, the defendant society has no right and title on the land over the disputed well. Since the possession of the plaintiffs over the disputed bore well
was established and the balance of convenience is in their favour, the trial Court granted injunction as sought by the plaintiffs. Further, the trial Court
also observed that the extent of the schedule mentioned in O.S.No.37 of 1996 and O.S.No.515 of 2007 is different and thus, it is not hit by res
judicata.
The appellate Court also observed that there is no dispute in respect of ownership or possession of the plaintiffs over the schedule properties and
defendant is not claiming any right over it. The dispute of drawing of water from the bore well situated outside the suit premises is not covered by the
area of suit schedule property and without going into the merits of the case, it simply remanded the matter for receiving additional evidence under
Order 41 Rule 27 CPC.
It is an admitted fact that if any additional evidence is produced in the appellate Court, it should be received only under the circumstances
envisaged under Order 41 Rule 27 CPC. The documents sought to be filed by the defendant society were in their possession, but they were not filed
before the trial Court. The reasons stated in IA(SR) No.14472 of 2010 is that the said documents were not in its custody and that they were mixed up
with several other papers, and as such, it could not file before the trial Court and that during search of other papers, recently it came across the said
audit report and other documents and that the said documents are very much crucial for proper adjudication of the appeal. The appellate Court
considered their application and remanded the matter to the trial Court with a direction to receive additional evidence.
In fact, the documents sought to be filed by the defendant society were very much in its possession and it failed to exercise due diligence. Though
the additional evidence sought to be filed was within its knowledge, the reasons stated by the defendant society for not filing the said documents
before the trial Court is also vague and cannot be accepted. Apart from that, the documents sought to be produced as additional evidence are not
necessary for deciding the crux of the issue in the suit. But the appellate Court without assigning any reasons and considering the nature of the
documents and also not deciding the appeal on merits remanded the matter, which is patently irregular, and as such, the same is liable to be set aside.
Accordingly, this appeal is allowed by setting aside the judgment and decree dated 06.02.2014 in A.S.No.157 of 2010 on the file of the Court of
the XXVII Additional Chief Judge, City Civil Court, Secunderabad, and confirmed the judgment and decree dated 17.08.2010 in O.S.No.515 of 2007
on the file of the Court of the XVIII Junior Civil Judge, Secunderabad. There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall also stand dismissed in the light of this final judgment.