Gurmit Kaur vs Gurjit Singh and Others

Sabina, J.—Plaintiff Gurmit Kaur had filed a suit for declaration with consequential relief of permanent injunction and in the alternative suit for joint possession. The suit of the Plaintiff was dismissed by the Additional Civil Judge (Sr. Divn.) vide judgment and decree dated 18.3.2005. Appeal filed by the Plaintiff against the said judgment and decree was dismissed by the Additional District Judge vide judgment and decree dated 9.2.2007. Hence, the present appeal by the Plaintiff.

During the course of arguments learned Counsel for the Appellant has submitted that before the first Appellate Court, Plaintiff had moved an application for permission to lead additional evidence under Order 41, Rule 27 of the CPC (Code of Civil Procedure for short). However, the said application had not been decided by the trial Court. By way of additional evidence, Plaintiff wanted to prove on record the order passed by Sub Judge, Ist Class, Jalandhar dated 28.9.1987 passed in HMA No. 5/87.

Learned Counsel for the Respondents, on the other hand, has submitted that the case was not liable to be remanded back to the first Appellate Court merely because the application under Order 41, Rule 27 CPC had not been decided. The evidence now sought to be led by way of additional evidence was not relevant for the just decision of the case. In support of his arguments, learned Counsel has placed reliance on Prabhu Dayal v. Hardevi 1994 (1) PLR 398 wherein, in para 5, it was held as under:

Having heard the learned Counsel for the parties at some length, I am of the view that there is no merit in the revision petition. Respondent No. 1, Har Devi has two sons and two daughters. One of the sons is Madan Lal, who is Respondent No. 2. Madan Lal has four sons and two daughters. It has come on record that only three rooms measuring 10''*12'' are in possession with the family of Har Devi and Madan Lal. Application dated 2.12.1988 was dismissed on the ground that the same had been filed only in order to delay the proceedings. I have gone through the said application and find that its vague and lacks material particulars. In this application, it is not stated that when those rooms were vacated or when the other tenants came in possession of those rooms. No affidavit either of erstwhile tenant or of the new tenants, who according to the Petitioner came in possession, was filed along with that application. I am thus of the view that the appellate Authority rightly dismissed that application. The other application which was filed for production of additional evidence is also of no consequence. In that application, Petitioner made a prayer to produce two site-plans in order to show that some accommodation was available to the Respondents apart from the one they had disclosed. These site-plans were attached with the application. One plan is of the year 1942 which was rejected by the Municipal authorities and the second one was prepared some where in the year 1989, i.e. during the pendency of the appeal. Both these site-plans cannot be taken into consideration for the reason that 1942 plan was rejected by the Municipal Authorities and is not an authenticated document. The other plan was prepared after the tenant was ordered to be ejected. Otherwise also, counsel for the Petitioner has failed to show from the site-plans as to what additional accommodation was available to the tenant at the time of filing of the petition. The judgment rendered in Jagir Kaur''s case (supra) has no application to the facts of the present case and is clearly distinguishable. Thus, the prayer of the Petitioner for remand of the case cannot be accepted because it would be an exercise in futility if the case is remanded to the appellate Authority for deciding application under Order XLI, Rule 27 of the Code of Civil Procedure. In this view of the matter, the petition of the Respondents was rightly allowed on the ground of personal necessity, which calls for no interference by this Court.

Learned Counsel has further placed reliance on Sohan Singh v. Gurmej Singh and Ors. 2002 (4) RCR (Civil) 703, wherein, in para 7, it was held as under:

I have examined the records and considered the submissions, made by learned Counsel for the Plaintiffs-Appellants. Perusal of the record reveals that the application for additional evidence under Order 41, Rule 27 CPC was filed by the Plaintiffs-Appellants on 5.11.1981, when the appeal was fixed for hearing. It was not filed alongwith the appeal, which was filed on 5.5.1979. reply to the said application was filed by the contesting Defendants-Respondents on 24.11.1981 and on that date, it was ordered that the application shall be disposed of along with the main appeal. The main appeal was decided on 5.1.1982. it also appears from the record that no separate order has been passed on the said application at the time of final disposal of the appeal. In the judgment, no reference of the said application has been made. It appears that the application for additional evidence was not pressed and no argument was raised on that application at the time of final arguments and perhaps for these reasons, no order was passed on the said application and the same was not referred to in the judgment. In the grounds of appeal before this Court also, the Plaintiffs-Appellants did not state that this application was pressed and argued before the learned first appellate Court at the time of final arguments and in spite of that, no order was passed on their application. In these circumstances, it will not be appropriate for this Court to accept the contention of the learned Counsel and remand the matter to the first appellate Court after setting aside the judgment and decree. I am of the view that instead of remanding the case to the first appellate Court and to compel the parties to face further agony of years for final determination of their dispute, it will be more appropriate if this Court considers their application for additional evidence filed by the Plaintiffs-Appellants and take a decision whether they are entitled to lead additional evidence and whether the proposed additional evidence is necessary for the just and proper adjudication of the matter. My above view is supported by decision of this Court in Shri Prabhu Dayal Vs. Smt. Hardevi, , wherein it has been held in similar circumstances that the remand of the case will not be appropriate. It will result into delay and the ends of justice will meet if the application for additional evidence is considered by this Court. I am of the opinion that the remand of a case cannot be ordered by the appellate Court as a matter of course or convenience. Appellate Court can remand a case only when any eventuality as mentioned in Order 41, Rules 23(a) CPC occurs. Mere insufficiency of evidence on the file to support the contentions of a party is by itself no ground for setting aside the judgment of the trial Court and order for remand. Remanding a case for re-trial is a serious matter. Such order can be passed in exceptional circumstances where there had been no real trial or complete and effective adjudication of the matter. Remand is not meant for providing fresh opportunity to a party. Keeping in view these factors, I find no merit in the contention of learned Counsel for the Plaintiffs-Appellants for remanding the matter to the first appellate Court, after setting aside its judgment and decree, for deciding their application for additional evidence and then to decide their first appeal on merits." The substantial question of law that arises in this case is "whether the learned first Appellate Court could have decided the appeal on merits without deciding the application under Order 41, Rule 27 Code of Civil Procedure?"

In the present case, the Plaintiff had filed a suit for declaration that she was owner in joint possession of the suit land being widow of Jaswant Singh. The Defendants, on the other hand, had placed reliance on Will dated 2.7.1992 executed by Jaswant Singh in favour of Defendants No. 1 and 2. In the Will, it has been stated by the executant that his wife Gurmit Kaur (Plaintiff) was not residing with him. The Plaintiff by way of additional evidence wanted to place on record, before the first Appellate Court, order dated 28.9.1987 passed in a petition filed by Jaswant Singh against Gurmit Kaur u/s 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. The said order reads as under:

Parties have compromised. Respondent has started living with applicant. In view of statement made by applicant, this application is dismissed as withdrawn. File be consigned to record room.

Thus, as per the order, now sought to be placed on record, Jaswant Singh and Gurmit kaur had started living together in the year 1987. The order now sought to be placed on record is part of the judicial proceedings. The said order would have a bearing on the decision of the case while determining the validity of the will set up by the Defendants. Learned first Appellate Court has, however, not decided the application under Order 41, Rule 27 Code of Civil Procedure. Although in the grounds of appeal, it has not been averred that the said application was duly pressed at the time of arguments of the appeal and the same had not been decided but in the present case, manifest injustice would be caused if the order dated 28.9.1987 is not allowed to be brought on record. In the facts and circumstances of the present case, the judgments relied upon by the learned Counsel for the Respondents fail to advance the case of the Respondents. The Plaintiff is a widow and she has been divested of the property left by her husband by the Defendants by setting up a will in their favour. The ends of justice require that the Plaintiff is allowed to put up her case and place on record all the relevant documents. The document, now sought to be placed on record by way of additional evidence, is part of the judicial proceedings and is liable to be taken in consideration while deciding the case. The learned first Appellate Court was required to decide the application u/s 41, Rule 27 CPC before deciding the appeal on merits. The substantial question of law that arises in this appeal stands answered accordingly.

In these circumstances, this appeal is allowed. The impugned judgment and decree passed by the first Appellate Court dated 9.2.2007 are set aside. The case is remanded back to the first Appellate Court and learned first Appellate Court is directed to decide the appeal afresh along with the application under Order 41, Rule 27 Code of Civil Procedure.

Parties are directed to appear before the first Appellate Court on 4.4.2011.