Sampatiya Bai And Ors vs Moolchand

@JUDGMENT-JUDGMENT

Sanjay K. Agrawal, J

Proceedings of this matter have been taken-up through video conferencing.

This appellants'/defendants' second appeal under Section 100 of the CPC was admitted for hearing by formulating the following substantial question

of law: - ""Whether the first appellate Court committed illegality in taking the additional evidence on record by granting plaintiff's application under

Order 41 rule 27 of the CPC and exhibiting the document as Ex.P/2 and thereafter, relying upon the said document as evidence, partly allowing the

appeal without giving an opportunity to the defendant to adduce evidence in rebuttal of Ex.P/2?

(For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the plaint before the trial Court.)

The respondent/plaintiff filed a suit for declaration of title and permanent injunction, which was dismissed on merits by the trial Court, which was

appealed by the plaintiff before the first appellate Court, in which the plaintiff also filed an application under Order 41 Rule 27 of the CPC making a

prayer for taking additional document on record i.e. copy of adhikar abhilekh with regard to the suit land bearing Khasra No.143 area 0.74 acre. The

first appellate Court after hearing the appeal on merits during the course of the judgment allowed the application under Order 41 Rule 27 of the CPC

and exhibited that document as Ex.P/2 and relying upon the said document as evidence, allowed the appeal granting decree in favour of the plaintiff

with regard to the suit land bearing Khasra No.143 area 0.74 acre, against which, this second appeal has been preferred by the appellants/defendants,

in which substantial question of law has been formulated which has been set-out in the opening paragraph of this judgment.

Mr.Ravindra Sharma, learned counsel for the appellants/defendants, would submit that the first appellate Court is absolutely unjustified in granting

the application and exhibiting the document as Ex.P/2 and thereafter relying upon that document allowed the appeal without giving an opportunity to

the defendants to adduce evidence in rebuttal and thereby committed an illegality, as such, the second appeal deserves to be allowed on this count

alone.

On the other hand, Mr.Ashok Soni, learned counsel for the respondent/plaintiff, would support the impugned judgment and decree.

I have heard learned counsel for the parties and considered their rival submissions made hereinabove and went through the records with utmost

circumspection.

The question for consideration would be, whether once the document has been taken on record by granting an application under Order 41 Rule 27

of the CPC, what should be the procedure to be followed by the Appellate Court qua the admitted document?

The Supreme Court in the matter of Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries) and others (2010) 8 SCC

423Â has held that once the document is taken on record as additional 1 evidence, opportunity must be given to the other side to produce the evidence

in rebuttal if they so desired. Paras 16, 17 and 18 of the report state as under:- ""16. The learned single judge rightly allowed the appellant's plea for

production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there

was sufficient statutory basis for that under clause (b) of Order 41 Rule 27. But then the Single Judge seriously erred in proceeding simultaneously to

allow the appeal and not giving the respondent- defendants an opportunity to lead evidence in rebuttal of the documents taken in as additional

evidence.

The Division Bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible

under Order 41 Rule 27. As shown above, the additional documents produced by the appellant were liable to be taken on record as provided under

Order 41 Rule 27 (b) in the interest of justice. But it was certainly right in holding that the way the learned Single Judge disposed of the appeal caused

serious prejudice to the respondent-defendants. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to

set aside the order of the learned Single Judge without disturbing it insofar as it took the originals of the certificates of registration produced by the

appellant on record and to remand the matter to give opportunity to the respondent-defendants to produce evidence in rebuttal if they so desired. We,

accordingly, proceed to do so.

The judgment and order dated 25-4-2003 passed by the Division Bench is set aside and the matter is remitted to the learned Single Judge to

proceed in the appeal from the stage the originals of the registration certificates were taken on record as additional evidence. The learned Single

Judge may allow the respondent-defendants to lead any rebuttal evidence or make a limited remand as provided under Order 41 Rule 28.

The above-stated judgment i.e. Shalimar Chemical Works Limited (supra) has recently been followed by the Supreme Court in the matter of

Akhilesh Singh alias Akhileshwar Singh v. Lal Babu Singh and others (2018) 4 SCC 659 in which it has been held that Order 41 Rule 27 of the CPC is

silent as to the procedure to be adopted by the appellate court after admission of additional evidence and further held that in view of the provisions

contained in Order 41 Rule 2 of the CPC, when the appellate court admits additional evidence, it is necessary for the said court to grant an opportunity

to the other party to lead evidence in rebuttal thereof. Paras 12, 14 and 17 of the report state as under:- ""12. Order 41 Rule 27 CPC, which deals with

the provision of additional evidence in Appellate Court, provides for the grounds and circumstances on which the Appellate Court may allow such

evidence or documents or witnesses to be examined. Order 41 Rule 27 sub-rule (2) further provides that wherever additional evidence is allowed to be

produced by an Appellate Court, the court shall record a reason for its admission. Order 41 Rule 27 is silent as to the procedure to be adopted by the

High court after admission of additional evidence. Whether after admission of additional evidence, it is necessary for the Appellate Court to grant

opportunity to the other party to lead evidence in rebuttal or to give any opportunity is not expressly provided in Order 41 Rule 27.

Order 41 Rule 2 provides that the appellant shall not, except by leave of the court, be allowed to urge any ground in the appeal, which is not set

forth in the memorandum of appeal. The proviso to Order 41 Rule 2 engrafts a rule, which obliged the Court to grant a sufficient opportunity to the

contesting party, if any new ground is allowed to be urged by another party, which may affect the contesting party. The provision engrafts rule of

natural justice and fair play that contesting party should be given opportunity to meet any new ground sought to be urged. When the appellate court

admits the additional evidence under Order 41 Rule 27, we fail to see any reason for not following the same course of granting an opportunity to the

contesting party, which may be affected by acceptance of additional evidence. In the present case, additional evidence, which were brought on the

record were registered sale deeds, which were executed by present appellant and his other co-sharers and what was relied on before the High Court

was that the appellant admitted in the sale deeds that the partition has taken place in the family. The main issue in the First Appeal before the High

Court was as to whether the finding of the trial court that no partition by metes and bounds has taken place in the family is correct or not. The

additional evidence which was admitted has been relied on by the High Court while allowing the appeal. It was in the interest of justice that the High

Court ought to have allowed opportunity to the plaintiffs, who were respondents to the first appeal to either lead an evidence in rebuttal or to explain

the alleged admissions as relied on by the defendants. The mere fact that no counter affidavit was filed to the IAs was not decisive. Since IAs having

not been admitted, occasion for counter affidavit did not arise at any earlier point of time. The High Court on the same day i.e. 8-3-2017 has allowed

the IAs as well as the first appeal. The fact that the contesting respondents to the first appeal, who were the appellant before us were not represented

at the time of hearing of the first appeal, was not a reason for not giving opportunity to them to lead evidence in rebuttal.

The submission of the learned counsel for the respondents that execution of sale deeds was never denied by the present appellant before the High

Court, hence no error has been committed by the High Court in relying on the contents in the sale deed cannot be accepted. Even if, execution of sale

deeds was not denied, the appellate court before which any statement in sale deeds is relied on ought to have given an opportunity to lead evidence in

rebuttal or to explain the admission. Opportunity to explain the admission contained in the sale deeds was necessary to be given to the contesting party

in the facts of the present case. We thus are of the opinion that the High Court erred in simultaneously proceeding with the hearing of the appeal after

admitting additional evidence on record. The High Court ought to have given opportunity to the contesting respondents in the first appeal to lead

evidence in rebuttal or to explain the alleged admission as contained in the sale deed, which having not been done......

Reverting to the facts of the present case in light of the principle of law laid down by the Supreme Court in the above-stated judgments (supra), it

is quite vivid that in first appeal the first appellate Court entertained the application under Order 41 Rule 27 of the CPC and thereby exhibited the

document as Ex.P/2 and thereafter relying upon that document, allowed the appeal, whereas the first appellate Court did not give any opportunity to

the plaintiff to prove that document by adducing evidence and also did not give an opportunity to the defendants to adduce evidence in rebuttal and to

cross-examine the plaintiff and straightway allowed the appeal, which runs contrary to the principle of law laid down and procedure adopted by the

Supreme Court in Shalimar Chemical Works Limited (supra) and Akhilesh Singh alias Akhileshwar Singh (supra). In the considered opinion of this

Court, after granting application under Order 41 Rule 27 of the CPC, the first appellate Court ought to have given opportunity to the plaintiff to prove

that document by adducing evidence and thereafter, could have allowed the defendants to lead evidence in rebuttal, if any, and thereafter, could have

passed the judgment and meanwhile, the first appellate Court could have stayed the delivery of judgment till the additional evidence is adduced by the

parties on additional document so admitted by the first appellate Court.

As such, the procedure adopted by the first appellate Court is clearly impermissible in law in view of the binding pronouncement of the Supreme Court

noticed hereinabove.

In view of the above, the substantial question of law is answered in favour of the defendants and against the plaintiff. The impugned judgment and

decree passed by the first appellate Court is hereby set-aside. The matter is remitted to the first appellate Court for deciding the appeal afresh after

giving an opportunity to the plaintiff to prove the document (Ex.P/2) by leading evidence and thereafter to the defendants to adduce evidence in

rebuttal. However, it is made clear that this Court has not expressed any opinion on merits of the case and it is for the first appellate Court to hear and

decide the appeal on merits and take a decision in accordance with law. Parties are directed to appear before the first appellate Court on 22nd July,

2020 and thereafter the first appellate Court shall decide the appeal within three months from that day.

The second appeal is allowed to the extent indicated herein-above leaving the parties to bear their own cost(s).

Records be sent back to the concerned first appellate Court forthwith.