Smt. Karuna vs Mahesh And Others

The appellant has filed a bearing Civil Suit No. 50-A/2007 before the 2nd Civil Judge Class-II Mandla for declaration of title and injunction and for

possession stating that by registered sale deed dated 1.12.1994, she has purchased a plot No. 2 out of sheet No. 19-D area 1940 Sq.ft, but the

defendants /respondents have encroached upon part of it. Hence she filed a civil suit through power of attorney Shiv Kumar Pandey. The

defendants/respondents denied the claim and stated that the said property is an ancestral property and they are not encroached upon any portion and

in the alternative they said that they have right of easement over the said property.

The trial Court framed the issues and laid the evidence, the trial Court thereafter decreed the suit on 08.02.2008. Against the said judgment and

decree, the defendants/respondents filed an Appeal No. 76-A/2014 before the 2nd Additional District Judge, Mandla. The Appellate Court vide order

dated 4.12.2015 has set aside the order passed by the trial Court and by allowing the application preferred by the defendants/respondents under Order

41 Rule 27 of the C.P.C. has remanded the matter to the trial Court for deciding the matter afresh. Being aggrieved by that order the appellant has

filed the present appeal.

Learned counsel for the appellant submits that the appellate Court has erred in remanding the matter to the trial Court for deciding the entire matter

afresh. He submits that the appellate Court has further erred in allowing the application preferred by the defendants/respondents under Order 41 Rule

27 of the C.P.C. He further submits that the documents which the defendants/respondents was sought to be filed under order 41 Rule 27 of C.P.C.

are not necessary documents. He further argued that the appellate Court has two options for remanding the matter, firstly it should the appellate Court

to direct the trial Court to record the evidence on this document and the evidence will produce before the appellate Court. Secondly, it may record the

evidence itself. However, in the present case, the appellate Court, instead of remanding the matter for limited issues on the documents which is sought

to be produced by the defendants/respondents, has erred in remanding the matter to the trial Court for deciding afresh in toto. He further relies on the

judgment passed by the Apex Court in the case of H.P. Vedavyasachar Vs. Shiva Shankara and another reported in 2010(1) M.P.L.J. 315.

In the present case, none appears for the respondents even though served, therefore, the matter has heard in absence of the counsel for the

respondents.

Heard, learned counsel for the appellant and perused the record.

In the present case, the appellant has filed the civil suit for declaration of title and injunction. The said civil suit was decreed by the trial Court on

08.02.2008. Against the said judgment and decree, the defendants/ respondents have filed an appeal before the 2nd Additional District Judge, Mandla.

During the pendency of the said appeal the defendants/respondents have filed an application under Order 41 Rule 27 of C.P.C. for taking additional

evidence on record. The appellate Court has allowed the appeal preferred by the defendants/respondents and set aside the order passed by the trial

Court and remanded the matter to the trial Court for deciding the matter afresh by taking the additional evidence produced by the

defendants/respondents under Order 41 Rule 27 of the C.P.C. The learned counsel for the appellant on the basis of the judgment passed in case of

H.P.Vedavyasachar (Supra) in para 7-8 has held as under:-

“7. However, so far as the second contention raised by the learned counsel for the appellant is concerned, in our opinion, the same has substance.

When an application for adducing additional evidence is allowed the appellate Court has two options open to it. It may record the evidence itself or it

may direct the trial Court to do so.

Order XLI, Rule 28 of the Civil Procedure Code reads as under :-

“28. Mode of taking additional evidence-Wherever additional evidence is allowed to be produced, the Appellate Court may either take such

evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when

taken to the appellate Courtâ€​

For the aforementioned purpose, in our considered opinion, the High Court could not have directed the trial Court to dispose of the suit after taking

evidence. Such an order of remand could be only in terms of Order XLI, Rule 23, Order XLI, Rule 23A or Order XLI, Rule 25 of the Code. None of

the said provisions have any application in the instant case.â€​

Thus, as per the judgment while allowing the application preferred by the defendants/ respondents for adducing the additional evidence, two options

were opened to the appellate Court. One is that Court may record the evidence itself or it may direct the trial Court to do so. However the appellate

Court should not direct for de novo trial. The order of remand should be restricted only to the documents which is sought to be produced by the

defendants/respondents by way of additional evidence.

Thus, in light of the aforesaid, this appeal is allowed. The impugned order dated 04.12.2015 passed by the 2nd Additional District Judge, Mandla in

Regular Civil Appeal No. 76-A/2014 is hereby set aside and the trial Court is directed to record the evidence of both the parties in respect of only

those documents which are sought to be produced by them in the additional evidence within a period of 6 months from the date of receipt of certified

copy of this order and after recording the evidence the trial Court is directed to send the record before the appellate Court so that the appellate Court

can decide the appeal.