Ram Chandra vs Brij Lal

O.P. Srivastava, J.—This is an appeal from the judgment and decree passed by 1st Appellate Court dated 25.7.2002, whereby the learned First Appellate Court while allowing the appeal and setting aside the judgment and decree of the learned Trial Court remanded the matter back to the learned Trial Court for fresh decision of the case after obtaining expert opinion in regard to the thumb impression on the agreement for sale.

The plaintiffrespondent had filed the suit for specific performance of registered agreement for sale allegedly executed by the defendantappellant after obtaining the earnest money.

The suit was contested inter alia on the ground that the registered agreement for sale, on which the photo of the defendantappellant was also affixed, did not bear the signature or thumbimpression of the defendantappellant.

Upon consideration of the evidences adduced in the case by the parties, the learned Trial Court dismissed the suit with the observation that inspite of the specific denial regarding signature or thumb impression of the defendantappellant, no expert opinion was obtained.

The plaintiffrespondent preferred the appeal before the learned District Judge, which came up for disposal before the Additional District Judge, Court No. 8, Barabanki. In the appeal the appellant moved an application also for obtaining expert opinion in regard to the thumbimpression on the agreement of sale. The reason for moving the said application at the appellate stage, as given in the application, was that the plaintiffrespondent was under the impression that since it was a registered agreement for sale with photo of the defendantappellant affixed thereon, there would be presumption of its execution and, therefore, no application for obtaining expert opinion was given. The learned Appellate Court upon consideration of the matter decided the appeal as above.

Aggrieved with the said judgment and decree passed by the learned First Appellate Court, the defendantappellant has come in appeal before this Court.

The learned Counsel for the defendantappellant has submitted that the plaintiffrespondent tried to fill up the lacuna after observation of the learned Trial Court and, therefore, he could not be permitted to adduce additional evidence under the provision of Order XLI, Rule 27, C.P.C. In support of his arguments, the learned Counsel has cited the judgments of Hon''ble Supreme Court in State of U.P. v. Manbodhan Lal Srwastava AIR 1957 SC 912, K. Venkatasamlah v. A. Seetharama Reddy and others AIR 1963 SC 1526, N. Ramaprasad v. C.N. Kumar AIR 1998 Karnataka 313, and Jaipur Development Authority v. Smt. Kailashwati Devi 1997 RD 554.

On the other hand the submission of the learned Counsel for the plaintiffrespondent is that being under the impression that it was a registered document with photo of the defendantappellant affixed on it, there would be presumption and therefore, no steps were taken for obtaining the expert opinion. He submitted that no evidence was adduced to rebut the fact that defendantappellant did not appear before the SubRegistrar.

I have considered the rival submissions made before this Court by the learned Counsel for the parties and have gone through the record. I have also gone through the provisions of Order XLI, Rule 27, C.P.C. .

The main function of the Court is to do substantial justice and it is because of this purpose that Order XLI, Rule 27 besides laying down certain conditions for the parties to adduce additional evidence at the appellate stage also provides that Appellate Court may also require any document to be product or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause as is provided in subrule (b) of Rule 27 of Order XLI of Code of Civil Procedure,. In this case it is not disputed that it was a registered document, meaning thereby that the document was produced before the Public Officer who made certain endorsement also. Apart from the document, being the registered one there is a photo also of the defendant appellant affixed on the agreement. Therefore, in these circumstances if any party prays for permission to obtain expert opinion at appellate stage, then for arriving at a just decision and for doing substantial justice, if the appellate allows the Application, in my opinion, it did not commit any error in doing so especially in view of Order XLI, Rule 27 (b), G.P.C. because for doing substantial justice as the same, in my opinion, was necessary. However, this could be done by the learned Appellate Court itself and there was no need of remanding the matter back.

In view of the above, in my opinion, the learned Appellate Court cannot be said to be erroneous in permitting defendant/appellant to obtain expert opinion. However, so far as grant of permission to obtain expert opinion is concerned, there was no need for remanding the matter back to the Trial Court.

In this way the appeal succeeds and the matter deserves to be sent back to the Appellate Court to decide the matter itself after obtaining the expert opinion.

The appeal is, therefore, allowed, setting aside the judgment and decree passed by the 1st Appellate Court dated 25.7.2002. The matter is sent back to the Appellate Court to decide it afresh after obtaining the expert opinion. It is, however, made clear that if the other party also wants to obtain the expert opinion in rebuttal, the same shall also be permitted to be obtained.

The parties shall bear their own costs.