Kiran Kumari and Others vs Hanumant Singh and Others

Alok Sharma, J.—The order dated 30.8.2010 passed by the learned Addl. District Judge No. 2, Jaipur District, Jaipur (hereinafter ''the lower appellate court'') has been challenged in this civil misc. appeal.

The question which arises for consideration is as to whether on allowing an application under Order 41 Rule 27 CPC, the appellate court could have on that count alone quashed and set aside the judgment and decree of the trial court and remanded the matter to the trial court for reconsideration of the suit on merits or whether it was obliged to take recourse to the provisions of Order 41 Rule 28 C.P.C. and either itself take additional evidence on record or make a limited remand for that purpose to the trial court.

The facts of the case are that a suit for cancellation of sale deed dated 3.7.1965 filed by the respondent plaintiff (hereinafter ''the plaintiff'') Hanumant Singh on 1.10.1981 was dismissed by the trial court on 1.9.1990. An appeal there-against under section 96 C.P.C. was filed before the District Judge, Jaipur District Jaipur. It came to be subsequently transferred to the Addl. District Judge No. 2, Jaipur District Jaipur. In the said appeal, four different applications under order 41 Rule 27 C.P.C. were filed by the plaintiff on 13.1.1998, 19.2.2001, 19.4.2004 and 7.1.2010. The learned appellate court heard the appeal along-with four applications under Order 41 Rule 27 C.P.C. and found that the applications under Order 41 Rule 27 C.P.C. deserved to be allowed. On that count alone, without resorting to the provisions of Order 41 Rule 28 C.P.C. or addressing the appeal on its merits, it remanded the matter to the trial court for reconsideration of the merits of the suit for cancellation of sale deed dated 3.7.1965 afresh on merits.

Mr. B.L. Agarwal counsel for the appellants defendants (hereinafter ''the defendants'') submitted that the impugned order dated 30.8.2010 passed by the lower appellate court is vitiated by a complete misdirection in law and stands in breach of statutory provisions. He submitted that for one, the application for bringing on record additional evidence in an appeal under Order 41 Rule 27 C.P.C. belatedly filed ought not to have been allowed in view of the plaintiff failing to satisfy any of the pre-conditions for leading additional evidence under Order 41 Rule 27 CPC. Secondly, he submitted that in any event of the matter if the learned lower appellate court was indeed satisfied that the four applications for additional evidence under Order 41 Rule 27 C.P.C. deserved to be allowed, it could have only proceeded thereafter under Order 41 Rule 28 C.P.C. and either recorded the additional evidence on its own or remanded the matter limited to the recording of additional evidence by the trial court. He submits that without adverting to the merits of the appeal, the judgment and decree of the trial court passed on the appreciation of evidence before it could not have been set aside. Reliance has been placed on the Judgment of Hon''ble Supreme Court in the case of The State of Gujarat and Another Vs. Mahendrakumar Parshottambhai Desai (Dead) by L.Rs., to submit that until the appellant before the appellate court is able to satisfy it that additional evidence sought to be produced under Order 41 Rule 27 C.P.C. could not be produced earlier despite due diligence or such evidence was not within the appellant''s knowledge at the relevant time, resort to Order 41 Rule 27 C.P.C. cannot be permitted as the object of Order 41 Rule 27 C.P.C. is not to allow a party to belatedly fill up lacunae in its evidence at the stage of appeal. Counsel has also relied upon the Judgment of Hon''ble Supreme Court in the case of H.P. Vedavyasachar Vs. Shivashankara and Another, , wherein it has been held that on an application under Order 41 Rule 27 C.P.C. being allowed, the option that the appellate court has is to either take additional evidence on its own and dispose of the appeal thereafter or otherwise remit the matter to the trial court for the limited purpose of taking additional evidence as sought to be produced by the party in appeal and remit the matter thereafter to the appellate court for decision on the merits in the appeal. Counsel emphatically submitted that in the case aforesaid, the Hon''ble Supreme Court has held that while allowing an application under Order 41 Rule 27 C.P.C. the appellate court without anything more cannot set aside the judgment and decree of the trial court and remand the appeal to the trial court for decision afresh on the merits of the suit after taking additional evidence. It was submitted that similarly this Court in the case of Amar Chand v. Bhanwar Lal, RLW 1994 (1) 285 has held that a mere allowing of an application under Order 41 Rule 27 C.P.C. cannot entail the judgment/decree of the trial court being set aside and the matter being remanded to the trial court for trial afresh. It was held that "it is thus clear that an appellate Court has no jurisdiction to set aside the judgment and decree of a trial Court while passing order under Order 41 Rule 27 CPC. The appellate Court could direct the trial Court to record the statement of the Commissioner or itself record his statement. The lower appellate Court adopted very easy course for deciding the appeal without caring in the least the express provisions of law and the convenience of the parties. It is being noticed that Shri M.L. Nogia is deciding civil appeals in this manner to achieve required disposal of cases. He should immediately stop this (7). Accordingly, the appeal is allowed. The order of the learned Addl. District Judge, Sojat dated 20.5.93 is set aside. He will himself examine the Commissioner in the presence of the parties and, thereafter, will decide the appeal in accordance with law."

Mr. R.K. Daga, counsel appearing for the respondent plaintiff (hereinafter ''the plaintiff'') would submit that the order of the appellate court does not cause any prejudice to the defendant and therefore, should be sustained by this Court. Further reliance has been placed on the Judgment of the Hon''ble Supreme Court in the case of Shyam Gopal Bindal and Others Vs. Land Acquisition Officer and Another, wherein the Hon''ble Supreme Court in a situation where an application under Order 41 Rule 27 C.P.C. had been dismissed by two appellate courts i.e., the lower appellate court and second appellate court along-with the regular first appeal and a second appeal, remanded the matter to be reconsidered on merits by the trial court after allowing the application under Order 41 Rule 27 CPC. He submits that the lower appellate court has similarly exercised its powers. Hence, the civil misc. appeal under consideration be dismissed.

Heard the counsel appearing for the respective parties and perused the impugned judgment passed by the lower appellate court.

The provisions of Order 41 Rule 27 read with Order 41 Rule 27 C.P.C. make it quite clear that on the mere allowing of an application under Order 41 Rule 27 CPC, the appellate court is not empowered to set aside the judgment and decree of the trial court. That can only be done by the appellate court on merits of the appeal on finding palpable error, unsoundness and error of law by the trial court. On an application under Order 41 Rule 27 read with Order 41 Rule 27 thereof the appellate court can either take additional evidence on record on its own or direct the courts whose decree the appeal is preferred against or any other subordinate court to take the additional evidence on record and send it back to the appellate court thereafter. There is no doubt that in the event of the appellate court proceeding to address the merits of appeal subsequent to the taking of additional evidence under Order 41 Rule 27/27 C.P.C. on record it can exercise its power to remand the matter to the trial court either by way of a limited or general remand as may be warranted in the facts of a case. Such a situation however does not obtain in the present case where the judgment and decree of the trial court passed on 1.9.1990 has been set aside by the appellate court and the matter was remanded only on the ground of the application under Order 41 Rule 27 C.P.C. being allowed. To my mind the facts of the present case bring it within the ambit of the Judgment of the Hon''ble Supreme Court in the case of Amar Chand v. Bhanwar Lal (supra) on all fours. The Judgment of the Hon''ble Supreme Court in the case of Shyam Gopal Bindal and others v. Land Acquisition Officer & Another (supra) turned on its own facts and it appears from the reading thereof that the remand was made on the merits of the appeal before the Hon''ble Supreme Court. Such a situation does not appear in the present case.

Consequently, this civil misc. appeal is allowed. The order dated 30.8.2010 passed by the Addl. District Judge No. 2, Jaipur District, Jaipur is set aside. The appeal before the lower appellate court is restored to its original number. The matter is remitted to the lower appellate court for deciding the application under Order 41 Rule 27 C.P.C. filed by the plaintiff afresh after an opportunity of hearing to both the parties. In the event the application under Order 41 Rule 27 C.P.C. is allowed, the lower appellate court shall resort to any of the two options under Order 41 Rule 27 CPC. Alternatively, the appeal before the lower appellate court shall be finally adjudicated along-with the application under Order 41 Rule 27 CPC.