Case Note & Summary
The Supreme Court allowed the appeal filed by the defendant, Jose, against the judgment of the Kerala High Court which had restored the trial court's decree granting permanent prohibitory injunction in favor of the plaintiff, Johnson. The dispute arose between cousins over a property that was partitioned under a deed of 2007. The plaintiff filed a suit for bare injunction alleging obstruction when constructing a wall. The trial court decreed the suit, holding that the plaintiff was in ownership and possession. The First Appellate Court set aside the decree and remanded the matter, noting that the property was not properly identified and that the defendant should be given an opportunity to adduce additional evidence, including a certified copy of the earlier partition deed of 1964. The High Court, however, set aside the remand order, holding that in a suit for bare injunction, only possession is relevant and title need not be examined. The Supreme Court held that the High Court erred because the pleadings and issues framed by the trial court specifically included questions of identity and ownership. The plaintiff did not object to those issues. The defendant had sought to adduce additional evidence, and the First Appellate Court's decision to remand was justified to ensure a fair trial. The Supreme Court restored the remand order, allowing the defendant to present evidence and the trial court to reconsider the matter afresh.
Headnote
A) Civil Procedure - Remand - Order 41 Rule 23A, Order 41 Rule 27, Order 43 Rule 1(W) CPC, 1908 - In a suit for bare injunction, when the defendant disputes the plaintiff's title and the trial court frames issues regarding ownership and identity, the First Appellate Court can remand the matter for fresh consideration if the defendant seeks to adduce additional evidence under Order 41 Rule 27 CPC. The High Court's interference with such remand order, on the ground that only possession is relevant in a bare injunction suit, is not justified when the pleadings and issues require determination of title and identity. (Paras 11-14) B) Civil Procedure - Issues - Order 14 Rule 5 CPC, 1908 - When the trial court frames issues regarding ownership and identity of property in a suit for bare injunction, and the plaintiff does not object or seek amendment, the parties are bound by those issues. The appellate court can consider the correctness of findings on those issues. (Paras 12-13) C) Civil Procedure - Additional Evidence - Order 41 Rule 27 CPC, 1908 - The First Appellate Court has the discretion to permit additional evidence if it is necessary for pronouncing a judgment. In this case, the defendant's application to produce the certified copy of the partition deed was allowed, and the matter was remanded for fresh consideration. (Paras 5, 13)
Issue of Consideration
Whether the High Court was justified in setting aside the remand order passed by the First Appellate Court in a suit for permanent prohibitory injunction, where the defendant disputed the plaintiff's title and sought to adduce additional evidence.
Final Decision
The Supreme Court allowed the appeal, set aside the High Court's judgment dated 14.11.2014, and restored the judgment of the First Appellate Court dated 31.03.2014, which had remanded the suit to the trial court for fresh disposal. The trial court is directed to dispose of the suit afresh in accordance with law, providing an opportunity to the defendant to adduce additional evidence.
Law Points
- In a suit for bare injunction
- when the defendant disputes the plaintiff's title and the trial court frames issues regarding ownership and identity
- the appellate court can remand the matter for fresh consideration if the defendant seeks to adduce additional evidence
- the High Court's interference with such remand order is not justified.
