Sona Bai vs Mahtarin Bai (Dead) Through Lr And Ors

This plaintiff's second appeal under Section 100 of the CPC was admitted for hearing by formulating the following substantial questions of law: -

"1. Whether the first appellate Court was justified in not taking evidence of the parties in respect of the documents which were taken into cognizance by application under Order 41 Rule 27 of CPC, filed by the plaintiff as well as the defendants in the first appeal as is required under Order 41 Rule 28 of CPC?

Whether the Courts below have committed an error in law in not accepting the fact that by Ex.D-1 it was established that the plaintiff, Sona Bai, had some right in the suit property which she had inherited as a daughter of Balbhadra?"

(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 plaintiff's suit for possession was dismissed by the trial Court after full-fledged hearing finding no merit against which the plaintiff preferred first appeal before the first appellate Court in which the defendants as well as the plaintiff, both, preferred application under Order 41 Rule 27 of the CPC for taking additional evidence on record. The defendants preferred B.(1) Kishtbandi Khatauni for the year 1954-55 in order to demonstrate that Balbhadra - father of the plaintiff died prior to 1956 i.e. before coming into force of the Hindu Succession Act, 1956, which was admitted by the first appellate Court as additional evidence and thereafter, without affording the other side i.e. the plaintiff to adduce evidence in rebuttal, relied upon the said document and further finally dismissed the first appeal, against which this second appeal has been preferred by the plaintiff in which substantial questions of law have been formulated which have been set-out in the opening paragraph of this judgment. One of the substantial questions is with regard to taking additional document on record under Order 41 Rule 27 of the CPC.

Mr. Ravindra Agrawal, learned counsel appearing for the appellant herein / plaintiff, would submit that the first appellate Court has misdirected itself in firstly granting application under Order 41 Rule 27 of the CPC and thereafter, taking into account such document on record, without putting the defendants to prove that document and thereafter without extending the opportunity to adduce evidence to the appellant herein / plaintiff in rebuttal on the principles of natural justice, considered the said document and admitted the same as additional document and dismissed the suit as well as the first appeal, therefore, the judgment & decree of the first appellate Court is liable to be set-aside.

Mr. Sanjay Patel, learned counsel appearing for respondents No.2 to 7(a) herein / defendants, would support the impugned judgment & decree and would submit that the first appellate Court is absolutely justified in granting that application and relying upon those documents, as such, this appeal deserves to be dismissed.

I have heard learned counsel for the parties and considered their rival submissions and went through the record 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 documents?

The Supreme Court in the matter of Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries) and others (2010) 8 SCC 423 has held that once the document is taken on record as additional 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 after taking and admitting the additional document on record and after marking the same as exhibit, the first appellate Court straightway relied upon the said document in favour of the defendants and affirmed the judgment & decree of the trial Court. Neither the first appellate Court asked the defendants to prove that document which was admitted pursuant to granting application under Order 41 Rule 27 of the CPC by leading evidence nor extended opportunity to the other side (plaintiff) to lead evidence on rebuttal and decided finally dismissing the first 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).

The first appellate Court should have followed the provisions enumerated in Order 41 Rule 28 of the CPC. After granting application under Order 41 Rule 27 of the CPC, the first appellate Court ought to have necessarily followed the procedure envisaged under Rule 28 of Order 41 of the CPC and the documents should have been proved. (See Alamelu Ammal and another v. S. Rani and others AIR 2017 SC 2612.)

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 defendants firstly to prove that document in accordance with law and thereafter, could have allowed the plaintiff 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 documents 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 herein in the aforesaid cases.

In view of the above, the substantial questions of law are answered accordingly. 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 defendants to prove the said document by leading evidence and thereafter to the plaintiff to file documents, if any, and lead evidence. However, it is made clear that this Court has not expressed any opinion on the merits of the case, particularly with regard to substantial question of law No.2 and it is for the first appellate Court to hear and decide the appeal on merits and take a decision in accordance with law. This Court has only dealt with the aspect of grant of application under Order 41 Rule 27 of the CPC framed as substantial question of law No.1, rest of all the issues shall be decided by the first appellate Court on its own merit, in accordance with law. Parties are directed to appear before the first appellate Court on 16th December, 2019 and thereafter the first appellate Court shall decide the appeal within three months from that day, as the first appeal was preferred in the year 2003.

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.