LRs of Laxmi Lal and Others vs Nagarpalika and Another

Arun Bhansali, J.—This appeal under Order XLIII, Rule 1(u) CPC has been preferred against the judgment and decree dated 19.5.2011 passed by the first appellate court, whereby while allowing the application under Order XLI, Rule 27 CPC, the Court has set aside the decree passed by the trial court and has remanded back the entire matter for deciding afresh. The brief facts of the case are that the plaintiffs-appellants filed a suit for injunction against the respondents-defendants with regard to a piece of land. The said suit was decreed by the trial court on 19.12.2007.

Feeling aggrieved, the defendants filed regular first appeal u/s 96 CPC before the appellate court and during the pendency of the said appeal, two applications were filed by the defendants under Order XLI, Rule 27 CPC for placing on record further documentary evidence. When the appeal was heard by the first appellate court, the appellate court considered both the applications and came to the conclusion that the applications deserve to be allowed and allowed the same. After allowing the said applications under Order XLI, Rule 27 CPC, the court passed the following order:-

It is submitted by learned counsel for the appellants that the procedure adopted by the appellate court is contrary to the provisions of Order XLI, Rule 28 CPC and it was not open for the first appellate court to set aside the decree passed by the trial court and remanded back the matter as a whole. It was prayed that the order impugned be set aside and the direction in consonance with the Order XLI, Rule 28 CPC be passed.

On the other hand, learned counsel for the respondents submitted that all the documents produced by him are copies of revenue record and cannot be disputed. He even proposed that if formal proof is dispensed with then the appellate court may be directed to decide the appeal itself by taking into consideration the said documents.

I have considered the rival submissions made at the Bar.

The legal position regarding the consequence of accepting an application under Order XLI, Rule 27 CPC has been considered by this Court in the case of Lal Singh Vs. Magan Singh (SBCMA No. 532/2009) decided on 15.2.2013 and after considering the judgments of this Court as well as Hon''ble Supreme Court, it has been held as under:-

A bare reading of operative portion of the order passed by the first appellate court quoted hereinbefore would reveal that the first appellate court without recording any finding as to the requirement of further evidence and/or proof of the documents produced by the parties under Order XLI, Rule 27 CPC has jumped to a conclusion that the decree passed by the trial court deserves to be set aside and the matter is required to be remanded back.

Order XLI, Rule 28 CPC provides that where an additional evidence is permitted by the first appellate court, then the Court may either take such evidence or direct the Court from whose decree the appeal is preferred to take such evidence and to send it when taken to the appellate court.

It is only in a small number of cases where the Court is more than satisfied that the party was validly and genuinely precluded from producing evidence before the forum in the first instance that a remand for this purpose may be justified.

Considering the provision of Order XLI, Rule 28 CPC, Hon''ble Supreme Court in the case of H.P. Vedavyasachar Vs. Shivashankara and Another, has held as under:-

However, so far as the second contention raised by the learned counsel for the appellant is concerned, in our opinion, the same has substance. When an application for adducing additional evidence is allowed the appellate court has two options open to it. It may record the evidence itself or it may direct the trial court to do so.

Order 41 Rule 28 CPC reads as under:-

Mode of taking additional evidence.-Wherever additional evidence is allowed to be produced, the appellate court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate court, to take such evidence and to send it when taken to the appellate court.

For the aforementioned purpose, in our considered opinion, the High Court could not have directed the trial court to dispose of the suit after taking evidence. Such an order of remand could be only in terms of Order 41 Rule 28, Order 41 Rule 23-A or Order 41 Rule 25 of the Code. None of the said provisions have any application in the instant case.

Applying the ratio of law laid down by Hon''ble Supreme Court, it is clear that the Court below has legally erred in directing the trial court to decide the suit afresh after taking additional evidence and the same is not sustainable in law.

In that view of the matter, it is obvious that the impugned order passed by the first appellate court cannot be sustained and the same, therefore, deserves to be set aside.

Consequently, the order impugned passed by the first appellate court is set aside to the extent it has set aside the decree passed by the trial court and the matter has been remanded back to the trial court. The Appeal No. 14/2008 is restored back to the file of the first appellate court and it is directed to pass a fresh order after affording an opportunity of hearing to both the parties ''either allowing the parties to adduce evidence before it or to prove the documents permitted to be taken on record under Order XLI, Rule 27 CPC by the trial court in terms of Order XLI, Rule 28 CPC.'' The parties may appear before the first appellate court either personally or through counsel on 11.03.2013. The appeal is allowed accordingly. No costs.