J U D G M E N T
(Passed on 22/08/2024)
1
Present Miscellaneous appeal has been filed challenging the order dated 27.01.2021 passed by Second Additional District Judge, Bhind, District Bhind in First appeal No. 43 of 2018 whereby, the appeal filed by the respondent No. 1/plaintiff has been allowed and the order of remand has been passed.
2. The brief facts of the case leading to filing this Misc appeal are that respondent No.1/plaintiff has filed a suit for declaration of right and permanent injunction with the pleading that she was the owner of the land bearing Survey No. 1182 and 1183 ad-measuring area 0.66 hectare which was purchased by her by a registered sale deed dated 27.05.1996. It is further pleaded that the plaintiff has not alienated the land in favour of the defendant No. 1 but by playing fraud sale deed dated 26.06.2014 has been executed by the appellant/defendant No.1. The plaintiff has also pleaded that neither she has not received consideration nor possession was handed over to defendant No.1, therefore, she be declared as the owner and possession holder of land in dispute and the sale deed
2
dated 26.06.2014 be declared as null and void.
3. The appellant/defendant No.1 filed written statement with the pleadings that the sale deed was executed by the respondent No.1/plaintiff after receiving full consideration and possession was already handed over on spot and the defendant No.1 is in possession and cultivating the land, thus, the suit is liable to be dismissed.
4. The learned trial Court after framing of issues and recording the statements of the parties, dismissed the suit vide judgment and decree dated 10.04.2018. Against the judgment and decree passed by the learned trial Court, first appeal under Section 96 of CPC was filed by respondent No.1/plaintiff. In the first appeal an application under Order XLI Rule 27 of CPC was filed on 15.05.2018 along with some documents and another application dated 14.01.2021 was filed for taking some other documents. The learned first appellate Court heard the arguments in the appeal as well as on the application under Order 41 Rule 27 of CPC and
3
rejected the application dated 15.05.2018, however, application dated 14.01.2021 was allowed and the matter was remanded back by the impugned order. Against which, present misc. appeal is filed.
5. Learned counsel for the appellant argued that the impugned order of remand passed by the learned second Additional District Judge, Bhind is contrary to the law and liable to be set aside. The grounds taken in the appeal are that learned first appellate Court erred in allowing the application under Order XLI Rule 27 of CPC dated 14.01.2021. Mere perusal of the plaint it is evident that in the plaint there was no pleadings that any complaint was ever made by the respondent No.1/plaintiff to any police authority or any other Authority. Further submission is that the plaintiff in her examination-in-chief has not said that any complaint was ever made by her in this regard, but on the contrary to the pleadings and evidence available on record, application was allowed by learned first appellate Court. It is further argued that the suit was decided
4
by the learned trial Court on 10.04.2018 while the so-called investigation report dated 18.04.2017 which was much prior to the decision of the suit, hence, the learned Appellate Court erred in allowing the application for additional evidence. The documents filed with the application dated 14.01.2021 was not necessary neither goes to the root of the case, therefore, the application under Order XLI Rule 27 of CPC should not have been allowed. Thus, the impugned order be set aside.
6. On the other hand, learned counsel for respondent No. 1 / plaintiff submitted that the impugned order is passed in accordance with law, therefore, present petition deserves to be dismissed.
7. Heard Counsel for the parties and perused the record.
8. Provision under Order XLI Rule 27 of CPC are relevant to decide this appeal which reads as under:-
27. Production of additional evidence in Appellate Court.
"1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if
(a) the Court from whose decree the appeal is
5
preferred has refused to admit evidence which ought to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
9. In view of the aforesaid provision, it is apparent that the parties seeking to produce additional evidence has to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when decreed the appeal against was passed. In this case the decree was passed on 10.04.2018 by learned trial Court and the investigation report is dated 18.04.2017 which was much prior to decree of the learned trial Court. Thus it cannot be said that the aforesaid order could not
6
be produced before the learned trial Court.
10. The judgment of learned trial Court indicates that the issue of execution of sale deed has been decided on various grounds and not merely on the basis of the fact that any complaint was made to any Authority by the plaintiff. Learned first appellate Court has not given its findings on the case on merits as prescribed under Order XLI Rule 23-A of CPC. The judgment of first appellate Court at para 22 indicates that the photocopy of enquiry report was filed before it which indicates that plaintiff had knowledge of enquiry report dated 18.04.2017 because photocopy must have been prepared by the original, however, the documents/enquiry report has not been filed during the course of trial, whereas, the judgment and decree has been passed much after 27.01.2021. The plaintiff has not filed any reasons or grounds why the enquiry report was not obtained earlier by filing RTI application. Therefore, the point of exercising due diligence as prescribed in the aforesaid provision is also not found to be proved.
7
11. The record further reveals that neither the plaintiff has not pleaded as owner nor gave any statement in her Court statement regarding filing of any complaint to any Authority. It is settled principal of law that the additional evidence cannot be accepted just to fulfill the lacuna. Therefore, in absence of any pleadings the learned Court below has erred in remanding the case. The impugned judgment of remand further indicates that the first appellate Court has not reversed the judgment and decree on merits and has not given any finding that retrial is required, therefore, the judgment of remand is found to be contrary to the law.
12. In view of above, impugned order dated 27.01.2021 is hereby set aside and the matter is remanded back to the first appellate Court to reconsider and decide the case on its own merits after affording sufficient opportunities to parties as per law.
13. The parties are directed to appear before the first appellate Court on 23.09.2024. No fresh notice is necessary to be issued to the parties as parties are represented through their respected
8
counsels.
14. With the aforesaid, present appeal is hereby disposed of.
15. Registry is directed to send the record of this case to concerned Court below for further necessary action with the copy of this order.
(Sunita Yadav) Judge
LJ*
9