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Synopsis

The Supreme Court recently observed that the first appellate court cannot set aside the decree on the basis of an amended written statement without affording an opportunity to both sides to let in evidence in a matter.

"We find that any averment made in a plaint or written statement must be supported by evidence. In the absence of there being any evidence, the First Appellate Court could not have implied that there was already evidence in regard to what has been stated in the written statement without recording any evidence in support of the amended pleading," a bench of Justices B V Nagarathna and N Kotiswar Singh said.

The Supreme Court set aside a Kerala High Court's judgment of October 1, 2019, by which the judgment passed by the First Appellate Court in 2011 was partly sustained.

In 2004, by virtue of a sale deed, the original plaintiffs, who were husband and wife, got title and possession over the suit property in Athiyanoor village, Kamukincode P.O Kodangavila, District Trivandrum in State of Kerala, and had been in absolute possession since then.

The defendants’ property was immediately to the north of the suit property.

The present controversy originated in the defendants’ act to cut and remove six jack fruit trees on May 02, 2007, on the western side of the suit property with the object of, according to the plaintiffs, creating a new pathway through the suit property. Per contra, according to the defendants, this was done only to widen an existing pathway. On May 20, 2007, the defendants attempted to cut and remove the coconut trees standing on suit property. 

Aggrieved by this overt act, the appellants filed the suit on the file of the Additional Munsiff Court-1, Neyyattinkara, seeking permanent prohibitory injunction restraining the defendants from trespassing into the suit property and from constructing a pathway through the suit property by cutting and removing the trees standing therein or from committing any acts of waste in the suit property etc. Furthermore, the plaintiff sought damages amounting to Rs 10,000 i.e. and for putting up a boundary wall on the Northern boundary of suit property, etc.

The trial court on December 07, 2009, decreed the suit and restrained the defendants from trespassing into the suit property and from constructing a pathway through it by cutting and removing the coconut trees standing therein and from committing any act of waste therein and from interfering with the plaintiffs peaceful possession and enjoyment of the suit property while also allowing the plaintiffs to put up a compound wall along with existing Northern boundary.

On November 30, 2011, the first appellate court allowed the appeal and, consequently, reversed the decree.

On a regular second appeal by the plaintiff, the high court found no reason to interfere with the finding of the first appellate court on the prescriptive easementary right over the way toward the property of the defendants. It, however, allowed the construction of boundary wall along the northern end of the suit property.

Several arguments were advanced at the bar, the apex court, however, considered only one argument for the appellants being the permission granted by the first appellate court to seek amendment of the written statement. On such a written statement being permitted to be amended, there was no further consideration of the matter inasmuch as the impact of the amendment of the written statement on the merits of the case was not considered. 

"This is so as on the very day the amendment of the written statement was allowed the First Appellate Court also disposed of the appeal by setting aside the judgment and decree of the Trial Court. There was no reasoning given as to why in the absence of any further evidence being recorded by the First Appellate Court on the basis of the amended Written Statement, the judgment and decree of the Trial Court could be set aside," the bench said.

The court felt an opportunity had to be given to both sides to let in evidence on the amended written statement as, in sum and substance, the first defendant by the said amendment had in a way sought a counterclaim by averring that the first defendant had the right to the pathway by way of a easementary right and had been using it so for over fifty years.

The court also pointed out that there might have been a reference to a pathway in the judgment and decree of the trial court but the fact remained that there was a decree granted by the trial court which could not have been set aside merely because there was an amendment to the written statement made by the first defendant and in the absence of any evidence being let in support of the claim made by the respondent on the basis of the written statement being amended.

"In our view, the amendment to the written statement called for recoding of evidence particularly on behalf of the first defendant herein in order to prove his claim and contra evidence, if any, on behalf of the appellants-plaintiffs herein," the bench said.

By setting aside the high court's judgment, the court remanded the matter to the first appellate court to reconsider the case, in view of the amendment made to the written statement and to pass an order as to whether a further recording of evidence is required on the basis of the said amendment and to proceed to dispose the appeal in accordance with law.

Case Title: Jayanandan & Another Vs Suresh Kumar & Another