Shri Madan Lal etc. vs Shri Budh Ram etc.

H.C.P. Tripathi, J.—This appeal with leave is directed against the judgment of a learned single Judge passed in Regular Second Appeal No. 54 of 1968 dismissing the Plaintiffs'' second appeal.

The facts of the case lie in a short compass.

Plaintiffs instituted a suit in the Court of the Subordinate Judge, First Class, Kandaghat, praying for an order of permanent injunction restraining the Defendants from interfering in Plaintiffs'' possession as owners of 1 Bigha and 17 Biswas of the Abadi land situate in Khasra No. 751 of Mauza Mahsol Khana Tiron in Tehsil Kandaghat. It was alleged that the Defendants had begun digging foundation over some portion of the land for constructing a house and in spite of remonstration of the Plaintiffs they are still continuing with the same and hence a mandatory injunction was also claimed in the suit for the demolition of the unauthorised construction.

The Defendants contested the suit on the assertion that the Plaintiffs had neither any title nor were in possession of the land in dispute and the Defendants being proprietors of the village owned the land in dispute which was the Shamlat land of the village Abadi. It was alleged further that some four years back the Plaintiffs had illegally occupied 10 Biswas of the disputed land for cultivation and proper steps would be taken in due course for their ejectment.

The Subordinate Judge dismissed the suit inter alia on the findings that Ex. P-3 on which the Plaintiffs based their title was in the nature of a sale-deed conveying immovable property of the value of more than one hundred rupees, that being an unregistered document it was inadmissible in evidence, that the Plaintiffs had failed to prove that they were in possession over the land and as neither title nor possession was in their favour the relief of mandatory injunction could not be granted.

On appeal the learned District Judge, Simla, agreed with the findings arrived at by the trial Judge and dismissed the appeal.

When the case came up in second appeal before the learned single Judge, the Plaintiffs made an application under Order 41, Rule 27 of the CPC seeking permission to produce an order, dated 22nd May, 1955, passed by the Sub-Divisional Officer, Kandaghat, on the application of Smt. Gulabu as additional evidence. Their application was, however, rejected by the learned Judge as in his opinion "the additional evidence sought to be summoned was not necessary and proper to resolve the controversy." The learned single Judge affirmed the judgment and decree passed by the lower Appellate Court and dismissed the appeal.

Learned Counsel for the Appellants has urged that after being satisfied that "the Plaintiffs had been making sustained efforts to obtain the copy of the order of the Sub-Divisional Magistrate, to prove the admission of Mansha Ram about the sale of the land" the learned Judge had erred in refusing to admit the aforesaid document in evidence under Order 41, Rule 27 of the Code of Civil Procedure. Learned Counsel contends that the document in question throws a flood of light on the question of possession over the land in dispute and as the order was passed by the Sub-Divisional Magistrate when Mansha Ram was alive in 1955 and in his presence long before the dispute had arisen between the parties to the suit, it was an important document which should have been taken into account before coming to a decision. On the other hand, learned Counsel for the Respondents has urged that the aforesaid document was not material for the just decision of the case and the learned single Judge had rightly declined to admit the same in evidence at such a late stage.

The file of the miscellaneous case registered before the Sub-Divisional Officer, Kandaghat, on the application of Smt. Gulabu is on the record. We have perused the application of Smt. Gulabu to the Sub-Divisional Officer, Kandaghat, and the order passed by Shri I.C. Puri, Sub-Divisional Officer, exercising powers of a Collector and District Magistrate on the same on 22nd May, 1955. It appears that this order is signed also by Mansha Ram in token of its having been passed in his presence.

Smt. Gulabu is C No. 3 in the suit and Plaintiffs No. 1 and 2 arc her sons. According to the allegations in the plaint the land in suit which was an Abadi land had been purchased by Hans Raj father of Plaintiffs No. 1 and 2 and husband of C No. 3 from Mansha Ram the Lambardar of the village in 1929 and the Plaintiffs had been in possession of the same as owners since the date of purchase. The question of possession over the land in dispute was, therefore, a material question to be decided in the suit. In fact Issue No. 1 before the trial Judge related to the question of the Plaintiffs'' possession over the land in suit.

In our opinion, the order of the Sub-Divisional Officer passed on the application of Smt. Gulabu at a time when Mansha Ram was alive and in his presence and long before the present dispute between the parties had arisen was certainly a relevant document to be taken into account on the question of possession over the land in suit. There is no doubt that the Plaintiffs could not get the aforesaid document earlier in spite of their sustained efforts for obtaining the same. That is the finding of the learned single Judge and we agree with him. That being so and the document being relevant on the question of possession, we are of opinion, that the learned single Judge has erred in rejecting the Plaintiffs'' application under Order 41, Rule 27 for admitting the same as additional evidence on the record.

It is well-settled that an Appellate Court enjoys discretion to admit additional evidence in appeal for a substantial cause under Order 41, Rule 27 of the Code of Civil Procedure. In the case of (Raja) Inderjit Pratap Bahadur Said v. Amar Singh and Ors. AIR 1923 PC 128 a document was admitted in evidence by the Privy Council which had been filed before the High Court but had been rejected by the same. The Judicial Committee in that case observed:

Rules of procedure are not made for the purpose of hindering justice...that there is no restriction on the powers of the Board to admit such evidence for the non-production of which at the initial stage sufficient ground has been made out.

In Surinder Kumar and Others Vs. Gian Chand and Others, the principle of law enunciated in the above noted case was affirmed and it was held that there was no restriction on the powers of the Supreme Court to admit such evidence for the non-production of which at the initial stage sufficient ground had been made out.

We have already held that sufficient ground had been made out for the non-production of the aforesaid document at the initial stage and that the document was material for the decision of one of the main issues in the suit.

In this view of the matter, while we refrain from expressing any opinion on the merits of the case, we set aside the judgment of the learned single Judge and remand the case to him with the direction to reconsider the application under Order 41, Rule 27 of the CPC in the light of the observations made above, and thereafter, in the absence of any valid objection, to admit the document as additional evidence after it has been proved. The learned single Judge will afford an opportunity to the Defendants to adduce evidence in rebuttal of the aforesaid document. In the circumstances, we make no order as to costs.