2008 (5) TMI 746 - SC - Indian Laws

Summary

Issues Involved:
1. Whether the High Court erred in setting aside the trial court's judgment and remanding the matter.
2. Whether the findings of fact from the earlier litigation had attained finality.
3. Whether the second suit was maintainable.
4. Whether the trial court erred in rejecting the interlocutory application for adduction of secondary evidence.
5. Whether the High Court correctly applied Order XLI Rule 23 of the Code of Civil Procedure.

Summary:

1. Whether the High Court erred in setting aside the trial court's judgment and remanding the matter:
The Supreme Court found that the High Court failed to perform its duties by remanding the case without proper justification. The High Court's approach was deemed incorrect as it did not provide a clear basis for allowing secondary evidence and did not set aside the orders refusing to adduce secondary evidence.

2. Whether the findings of fact from the earlier litigation had attained finality:
The Supreme Court noted that the findings of fact from the earlier litigation, including the determination of title and possession, had attained finality. The Division Bench of the High Court had previously concluded that the predecessor-in-interest of the respondent confined its case only to 1250 square yards of land, and this judgment was binding.

3. Whether the second suit was maintainable:
The respondents filed a second suit for title and possession of the property. The Supreme Court observed that the second suit was barred under Order II Rule 2 of the Code of Civil Procedure, as the plaintiff ought to have prayed for the declaration in the previous suit itself.

4. Whether the trial court erred in rejecting the interlocutory application for adduction of secondary evidence:
The High Court had opined that the trial court should have allowed the plaintiff to lead secondary evidence. However, the Supreme Court found that the High Court did not provide a clear basis for this decision and did not set aside the orders refusing to adduce secondary evidence.

5. Whether the High Court correctly applied Order XLI Rule 23 of the Code of Civil Procedure:
The Supreme Court held that the High Court incorrectly applied Order XLI Rule 23, which is applicable only when a decree has been passed on a preliminary issue. The suit was not decided on a preliminary issue, and thus, Order XLI Rule 23 was not available. The High Court also did not find that a re-trial was necessary under Order XLI Rule 23A.

Conclusion:
The Supreme Court set aside the impugned judgment of the High Court and remanded the matter back to the High Court for consideration of the appeal on merits. The appeal was allowed with no order as to costs.