Nihala vs Raj Kumar

Mehinder Singh Sullar, J.—The compendium of the facts, culminating in the commencement, relevant for deciding the instant regular second appeal and emanating from the record, is that Nihala son of Harchand Appellant-Plaintiff (for brevity "the Plaintiff"), filed the suit against Raj Kumar minor son of Jeeta Ram Respondent-defendant (for short "the Defendant") seeking a decree for declaration to the effect that he is owner and in possession of the land to the extent of 320/672th share, out of the suit land, situated within the revenue estate of village Lehria, Tehsil and now District Fatehabad. Having completed all the codal formalities, the trial Court dismissed the suit of the Plaintiff, by virtue of impugned judgment and decree dated 2.12.1985.

Aggrieved by the decision of the trial Court, the Plaintiff filed the appeal. He has also filed an application for additional evidence under Order 41 Rule 27 CPC The Ist Appellate Court, without deciding/touching it, dismissed the main appeal on merits, by means of impugned judgment and decree dated 20.11.1986.

The Appellant-Plaintiff still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeal. That is how I am seized of the matter.

At the very outset, the learned Counsel has vehemently urged that although the Appellant-Plaintiff filed the application for additional evidence to produce the original sale deed, bearing No. 37 executed on 3.4.1968, but the Ist Appellate Court, without deciding it, has illegally dismissed the main appeal on merits, by way of impugned judgment and decree dated 20.11.1986.

The argument is that in this manner, the case of the Plaintiff has been deeply prejudiced in this relevant context. He has placed reliance on the judgments of Hon''ble Apex Court in cases Hakam Singh v. State of Haryana and Ors. 2008 (4) R.C.R. (Civil) 422 and M/s Eastern Equipment and Sales Ltd. v. ING. Yash Kumar Khanna 2008 (4) R.C.R. (Civil) 508

Faced with the situation, the learned Counsel for the Defendant has very fairly acknowledged the factual matrix, but contended that no ground for adducing additional evidence is made out.

After hearing the learned Counsel for the parties, having gone through the record with their valuable help and after deep consideration over the entire matter, to my mind, as the impugned judgment and decree of Ist Appellate Court cannot legally be maintained, therefore, the present appeal deserves to be accepted in this behalf.

As is evident from the record that the Appellant-Plaintiff moved an application for additional evidence under Order 41 Rule 27 CPC before the Ist Appellate Court on 17.5.1986 and the appeal was adjourned to 26.7.1986 for reply and arguments on the application as well as in the main appeal. On 14.11.1986, the Defendant filed the reply. The arguments in the application/appeal were heard and it was adjourned to 20.11.1986 for orders.

Meaning thereby, the arguments were heard, but strange enough, the Ist Appellate Court, without deciding the application for additional evidence, has dismissed the main appeal on merits, by virtue of impugned judgment and decree dated 20.11.1986.

What cannot possibly be disputed here is that the parties have a statutory right to lead additional evidence and the first Appellate Court has the power to allow such additional evidence, inter alia, for any other substantial cause, as contemplated under Order 41 Rule 27 Code of Civil Procedure. The Ist Appellate Court was well within its jurisdiction either to allow or to decline the production of additional evidence to a party, as the case may be. But dismissing the main appeal on merits, without deciding the application for additional evidence has naturally resulted in miscarriage of justice and renders the impugned judgment and decree of the Ist Appellate Court, as illegal.

As to whether the Plaintiff was entitled to lead additional evidence or not, is a matter to be decided by the Ist Appellate Court. Thus, the impugned judgment and decree of the first Appellate Court cannot legally be maintained in the obtaining circumstances of the case. Therefore, to me, it would be in the interest and justice would be sub-served, if the matter is remanded back to the first Appellate Court in this relevant connection.

In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of hearing of the appeal by the Ist Appellate Court, the instant appeal is accepted. Consequently, the impugned judgment and decree dated 20.11.1986 of the Ist Appellate Court are hereby set aside. The matter is remitted back, with a direction to the concerned Ist Appellate Court, first to decide the application for additional evidence filed by the Plaintiff and then to decide the main appeal on merits, in accordance with law.

The parties through their counsel are directed to appear before the concerned first Appellate Court on 21.11.2011, for further proceedings.

Needless to mention here that, nothing recorded hereinabove would reflect, on the merits of the case, in any manner, as the same has been so observed for a limited purpose of deciding the present controversy only.