Smt. Kamla Bai Dead Through Lrs I Madanlal v. Jagdeo Singh Dead Through Lrs I Smt. Padma Devi Thakur

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No.309 of 2008

1. Smt. Kamla Bai (Dead) Through LR (i) Madanlal, S/o Ram Singh Thakur, aged 46 years, R/o Dondilohara, District Balod (C.G.)

2. Smt. Malti Bai (Dead) Through LRs (i) Vimla Gangadhar Rao, S/o Motiram Singh Suryavanshi, aged about 62 years, R/o 215, Lakarganj, Near Garden, Barbeta Chowk, Nagpur (M.H.) Pin - 440 008.

(ii) Vishal Gangadhar Rao Barbeta, S/o Gangadhar Rao Barbeta, aged about 38 years, R/o 215, Barbeta Chowk, Lakarganj, Nagpur (M.H.) Pin - 440 008.

3. Mishrilal, aged about 47 years, S/o Hastimal, R/o Dondilohara, District Durg.

4. Nandkishore, S/o Champalal Tibar, aged about 42 years, R/o Dondilohara, District Durg.

5. Vikrey Singh, S/o Vishwanath Photographer, aged about 37 years, R/o Dondilohara, District Durg.

6. Ganesh, S/o Jagannath Gupta, aged about 35 years, R/o Dondilohara, District Durg.

(Defendants) ---- Appellants

Versus

1. Jagdeo Singh (Dead) Through LRs (Plaintiff) (i) Smt. Padma Devi Thakur, W/o Late Jagdeo Singh, aged about 69 years.

(ii) Smt. Lineshwari Thakur, W/o Late Dewesh Kumar Thakur, aged about 39 years.

(iii) Yashaswi Thakur, S/o Dewesh Kumar Thakur, aged about 17 years, through local guardian mother Smt. Lineshwari Thakur, W/o Late Dewesh Kumar Thakur.

(iv) Ku. Ayushi Thakur, D/o Dewesh Kumar Thakur, aged about 15 years, through local guardian mother Smt. Lineshwari Thakur, W/o Late Dewesh Kumar Thakur.

(v) Jayesh Thakur, S/o Late Jagdeo Singh Thakur, aged about 45 years.

All R/o Ward No.8, Main Road, Dondilohara, Tehsil Dondilohara, District Balod (C.G.) (vi) Smt. Abhilasha Thakur, D/o Late Jagdeo Singh Thakur, W/o Rajesh Thakur, aged about 43 years, R/o 54, Anupam Nagar, Rajnandgaon, Tehsil & District Rajnandgaon.

---- Respondents For Appellants/Defendants: - Mr. B.P. Sharma, Mr. Hari Agrawal and Ms. Anmol Sharma, Advocates.

For Respondents/Plaintiffs: - Mr. Rahul Agrawal, Advocate on behalf of Mrs. Hamida Siddiqui, Advocate.

Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 15/11/2019

1. This defendants' second appeal under Section 100 of the CPC was admitted for hearing by formulating the following substantial questions of law: - "(A) Whether the lower appellate Court was justified in allowing the application under Order 41 Rule 27 C.P.C. and admitting the demarcation report filed in another case as a public document and reversing the judgment and decree of the trial Court on that count?

(B) Whether notice Ex.P-3 can be treated as a notice in conformity with the Section 106 of the Transfer of Property Act, if no, its effect?

(C) Whether the lower appellate Court was right in reversing the judgment and decree passed by the Trial Court on issue No.1?"

(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.)

2. The plaintiff's suit for ejectment and arrears of rent was dismissed by the trial Court by judgment & decree dated 25-3-2000 holding that the plaintiff is not the owner of the property and defendant No.1 is the owner of the property against which the plaintiff preferred first appeal

and during the pendency of first appeal, the plaintiff also filed a document i.e. demarcation report Ex.P-13 and also filed application under Order 41 Rule 27 of the CPC for taking additional document on record, that application was heard along with the first appeal and ultimately, while delivering judgment, the first appellate Court by its judgment allowed the application under Order 41 Rule 27 of the CPC and marked the demarcation report as Ex.P-13 and thereafter, relying upon the said document Ex.P-13, in paragraph 32 of the judgment, though wrongly mentioned as Ex.P-12 which is certified copy of sale deed, held that the plaintiff is landlord and is entitled for the decree of ejectment and arrears of rent with interest against which this second appeal has been preferred.

3. Mr. Hari Agrawal, learned counsel appearing for the appellants / defendants, 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 plaintiff to prove that document and thereafter without extending the opportunity to adduce evidence to the appellants / defendants in rebuttal on the principles of natural justice, considered the said document and admitted the same as additional document and reversed the judgment & decree of the trial Court dismissing the suit, therefore, the judgment & decree of the first appellate Court is liable to be set-aside.

4. Mr. Rahul Agrawal, learned counsel appearing for the LRs of the plaintiff / respondents herein, would support the impugned judgment & decree.

5. I have heard learned counsel for the parties and considered their rival submissions and went through the record with utmost circumspection.

6. 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?

7. The Supreme Court in the matter of Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries) and others 1 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.

17.

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.

18.

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 (2010) 8 SCC 423

rebuttal evidence or make a limited remand as provided under Order 41 Rule 28."

8. 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 others2 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.

14.

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- (2018) 4 SCC 659

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.

17.

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......"

9. 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 in shape of Ex.P-13 and after marking the same as exhibit (Ex.P-13), the first appellate Court straightway relied upon the said document (Ex.P-13) in favour of the plaintiff and set-aside the judgment & decree of the trial Court. Neither the first appellate Court

asked the plaintiff 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 (appellants herein) to lead evidence on rebuttal and decided finally granting 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 firstly to prove that document Ex.

P-13 in accordance with law and thereafter, could have allowed the defendants / appellants 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.

10. 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 respondents herein / plaintiffs to prove the demarcation report Ex.P-13 by leading evidence and thereafter to the defendants to file documents 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 the substantial questions of law

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.3, 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 16 th 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 2000. 11.The second appeal is allowed to the extent indicated herein-above leaving the parties to bear their own cost(s).

12. Records be sent back to the concerned first appellate Court forthwith. Sd/- (Sanjay K. Agrawal) Judge Soma