R. Eshwarappa vs Maruthi and Others

Aravind Kumar, J.

This appeal came to be admitted on 19.12.2011 to consider following substantial questions of law.

"(1) Whether the judgment and decree of the lower appellate Court is vitiated by the non-consideration of the application filed by the appellant for additional evidence under Order XLI Rule 27, CPC?

(2) Whether the lower appellate Court has failed to exercise the jurisdiction vested in it by ignoring the application filed by the appellant under Order XLI Rule 27, CPC while deciding the appeal on merits?

(3) Whether the order of the Court below is opposed to the scope and object of Order XLI Rule 27, CPC."

I have heard the arguments of Sri K. Chandrashekar, learned Advocate appearing for appellant and Sri Rajendra S, learned Advocate appearing on behalf of Sri S.V. Prakash for respondent No. 1. Vide order dated 13.02.2014 service of notice to respondents-2(a) to (d) has held sufficient and appeal against respondent-3 has been dismissed vide order dated 17.01.2014. Parties are referred to as per their rank in trial Court.

Facts in brief which has led to filing of this second appeal can be crystallized as under:

"Plaintiff filed a suit for permanent injunction in respect of suit schedule property contending inter alia that he is the owner of suit schedule property having purchased the same from its owner Smt. Yellamma w/o Poojari Hanumanna for valuable consideration under registered sale deed dated 04.02.1976. It is also contended that he is in possession and enjoyment of suit schedule property and has been exercising his right of ownership and had mortgaged suit schedule property to City Co-operative Bank, Shivamogga and intended to construct a building for his residential purposes in the year 1980 itself after having obtained building licence. However, on account of certain constraints, he could not commence construction of the building and when he attempted to put up construction once again in the year 1991 after obtaining approval from Town Planning Authority and on obtaining building licence, defendants without any manner of right, title or interest, obstructed. Hence, he sought for a perpetual injunction against defendants."

On service of suit summons, defendants-1 and 2 appeared through their Advocates and written statement came to be filed by second defendant denying the averments made in plaint and it was contended by second defendant that he in possession and enjoyment of suit schedule property. It was also contended that Smt. Yellamma - vendor of plaintiff had no right, title or interest over suit schedule property and she was not in possession of the same at any point of time and hence, she could not have conferred any right or title over suit property in favour of plaintiff nor delivered possession. Even otherwise, it was contended that sale deed under which plaintiff claim title would not confer any right in favour of plaintiff and it was asserted that second defendant was in possession of suit schedule property. First defendant adopted the written statement filed by second defendant.

During the pendency of suit, first defendant expired and his legal heirs were brought on record and they have also filed written statement. However, they admitted that plaintiff is the owner of suit schedule property and the fact that plaintiff having purchased the same from its previous owner Smt. Yellamma for valuable consideration. Except to the said extent of expressly admitting this fact all other averments made in the plaint came to be denied in the written statement filed by legal representatives of first defendant.

On the basis of pleadings of parties, trial Court framed following issues:

"(1) Whether the plaintiff proves that he was in lawful possession of the suit schedule property, as on the date of the suit?

(2) Whether the plaintiff proves unlawful interference to his peaceful possession and enjoyment of the suit schedule property by the defendants?

(3) Whether the plaintiff is entitled for the reliefs sought for?

(4) What decree or order?"

Both parties tendered their oral and documentary evidence and on appreciation of same, trial Court held issue Nos. 1 to 3 in the negative and against plaintiff and dismissed the suit by its judgment and decree dated 28.11.2001.

Being aggrieved by said judgment and decree, plaintiff filed an appeal before lower appellate Court in R.A. No. 4/2002. During the pendency of appeal, an application under Order 41 Rule 27 CPC also came to be filed seeking production of additional evidence namely, to produce certified copy of the sale certificate dated 13.08.1956 issued by the President, Town Municipal Council, Shimoga in favour of Smt. Yellamma, w/o Hanumanna i.e., vendor of plaintiff. Said application came to be resisted by respondents/defendants by filing statement of objections. Lower appellate Court by order dated 18.10.2005 has recorded as under:

"I.A.2 may be considered at the time of final arguments. For arguments, call on 8/11/05.

Sd/- 18/10/05"

Accordingly, matter came to be adjourned from time to time and by judgment and decree dated 31.08.2007, appeal came to be dismissed and judgment and decree passed by trial Court on 28.11.2001 in O.S. No. 166/1991 came to be affirmed. Hence, this second appeal has been preferred by plaintiff.

It is the contention of Sri Chandrashekar, learned Advocate appearing for appellant that judgment and decree passed by the lower appellate Court is vitiated for non consideration of the application filed by the plaintiff under Order 41 Rule 27 CPC whereunder he had sought for production of additional evidence namely, to establish plaintiffs father''s title to suit schedule property and on account of non-consideration of this application, it has resulted in an erroneous judgment being passed by lower appellate Court and said course adopted by the lower appellate Court is contrary to the provisions of CPC namely, Order 41 Rule 27 CPC. He would contend that trial Court had dismissed the suit on the ground that plaintiff had failed to establish his title to the suit property and also his father''s title. Hence, additional evidence which appellant intended to place before the lower appellate Court related to this very issue and non consideration of this application has resulted in great prejudice to plaintiff and his suit being dismissed by an erroneous judgment. Hence, he prays that substantial questions of law formulated by this Court be answered in favour of appellant and appeal be allowed by decreeing the suit as prayed for.

Per contra, Sri Rajendra S, learned Advocate appearing for respondent-1 would support the judgment and decree passed by lower appellate Court and contends that non consideration of application for additional evidence filed by plaintiff by lower appellate Court namely, application filed under Order 41 Rule 27 CPC would by itself does not vitiate the judgment passed by trial Court inasmuch as, lower appellate Court on merits had found that plaintiff is not in possession and enjoyment of suit schedule property and suit in question being a suit for bare injunction, the only issue that had arisen for consideration related to possession of suit schedule property as on date of suit and as such, title to the property would have no bearing and hence, he prays for dismissal of the appeal by answering the substantial questions of law formulated in this appeal in the negative i.e., against appellant and in favour of respondents and prays for dismissal of the appeal.

Appeal is continuation of original proceedings. In effect, when entire proceedings are before the First Appellate Court it has the power to reappreciate the evidence subject to statutory limitation prescribed. First Appellate Court is the last fact finding Authority and it would not only deal with questions of law but also questions of fact and it can re-examine or re-appreciate the evidence available before it. In this background of salutary principles, when provisions of Order 41 Rule 27 CPC are examined, it would indicate that before the appellate Court parties would be entitled to produce additional evidence whether oral or documentary under three contingencies:

"(1) where trial Court has refused to admit evidence which ought to have been admitted;

(2) the party seeking admission of such additional evidence would demonstrate that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after exercise of due diligence, be produced by him at the time when the decree was passed; and

(3) If the appellate Court is of the view that any document to be produced or any witness to be examined would enable it to pronounce the judgment and for any other substantial cause."

This would clearly indicate that additional evidence is allowed to be produced for the requirement of the Court but not to enable the party to make good the deficiency of the case. Thus, where a party seeks for a judgment being rendered in his favour and were to seek for production of additional evidence, burden would be on him to establish that his prayer for production of additional evidence would fall under any of the three contingencies above referred to. When there is nothing to show that there was lacuna or gap which was to be filled up and appellate Court feels that omission to supply said evidence it can still pronounce judgment, this Court would be justified in holding that appellate Court was not justified in admitting additional evidence under Order 41 Rule 27 CPC. A finding of fact however erroneous, cannot be challenged in second appeal, yet a finding reached on the basis of additional evidence which ought not to have been admitted and without any consideration whatever be the intrinsic and palpable defects in the nature of document sought to be produced where the genuineness of such document is in serious doubt, cannot be accepted by the Second appellate Court as a finding of fact. This rule does not entitle the appellate Court to let in fresh evidence on the appeal where even without such evidence appellate Court can render judgment in a case.

Adverting to the facts of the present case, plaintiff claims possession of suit schedule property by virtue of having purchased the suit property under a registered sale deed dated 04.12.1976 from its erstwhile owner Smt. Yellamma. By way of producing additional evidence plaintiff sought to produce the sale certificate issued by the Municipal Authorities in her favour on 13.08.1956 namely, in favour of vendor of the plaintiff. The lower appellate Court having received the said application, which came to be resisted by the respondents-defendants, ought to have considered said application along with the main appeal, and it could not have refused to examine the said application at the time of final arguments. Judgment and decree passed by lower appellate Court when perused in its entirety does not even remotely suggest that said application filed by the appellant under Order 41 Rule 27 CPC has received the attention of lower appellate Court. In other words, said application is not at all considered or in other words, it has been lost sight of by the lower appellate Court. This Court in second appeal would not be in a position to examine as to whether said document was relevant and whether it has any evidentiary value or otherwise, including its admissibility in evidence and these are all issues which are in the domain of lower appellate Court and as such, without entering into any discussion on merits with regard to the admissibility of the said document by way of additional evidence, it would suffice if substantial questions of law formulated herein as above are answered in favour of the appellant and against respondents by holding that non consideration of application filed by the appellant under Order 41 Rule 27 CPC by lower appellate Court has vitiated the judgment and decree passed in R.A. No. 4/2002. However, ends of justice would be met if matter is remitted back to lower appellate Court for the said limited purpose namely to examine said application and if it is found by lower appellate Court that said application is to be accepted, it would be at liberty to proceed in the matter in accordance with law.

For the reasons aforestated, I proceed to pass the following:

ORDER

"(1) Second appeal is hereby allowed by answering substantial questions of law in favour of appellant;

(2) Judgment and decree passed by I Addl. Civil Judge (Sr. Dn) Shimoga in R.A. No. 4/2002 is hereby set aside and matter is remitted back to lower appellate Court for examining and considering whether application filed by appellant under Order 41 Rule 27 CPC requires to be allowed or not and to pass orders on merits and in accordance with law.

(3) No opinion is expressed with regard to merits of the claim and it would be in the discretion of the lower appellate Court to pass suitable orders on the said application.

(4) Parties to bear their respective costs."