Madhya Pradesh High Court
Smt.Shahjahan vs Hanif Ahmad on 10 August, 2017
Author: S.K.Awasthi
Bench: S.K.Awasthi
-( 1 )- SA No. 592/2011
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Second Appeal No. 592/2011
Smt. Shahjahan (since dead) through
LRs Mohd. Shafiq & others
Versus
Hanif Ahmad and others
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Shri K.N.Gupta, Senior Advocate with Shri R.S.Dhakad,
Advocate for the appellants.
Shri P.C.Chandil, Advocate for the respondents.
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ORDER
(10.08.2017) This appeal under Section 100 of Code of Civil Procedure, 1908 (CPC) is challenging the judgment and decree dated 15.11.2011 passed in Civil Appeal No. 13- A/2011 by I Additional District Judge, Gwalior, by which the First Appellate Court has affirmed the judgment and decree dated 08.07.2011 passed in Civil suit No. 41- A/2011 by II Additional Judge to the Court of I Civil Judge Class-II, Gwalior.
2. The original plaintiff filed a suit for declaration of title and permanent injunction against respondent No. 1/defendant, with respect to the suit property bearing Municipal No. 41/674 at Lohiya Bazar, Lashkar, District Gwalior.
3. According to the pleadings in the plaint, the plaintiff is claiming ownership over the suit property by way of succession in view of the fact that the suit property devolved in favour of father-in-law of the plaintiff by virtue of Family Settlement reduced in writing on 22.05.1965. It is pleaded that the suit -( 2 )- SA No. 592/2011 property was under sole ownership of Late Imam Khan, who is the father of Noor Mohammad from whom the suit property has devolved in favour of the plaintiff as Noor Mohammad is the father-in-law of the plaintiff. According to the plaintiff, the plaint map indicates the portion which devolved in favour of her father-in-law and has been marked in red ink. Further, the defendant made efforts to encroach upon the suit property and had preferred Civil Suit bearing No. 111-A/2003 (correct No. 44A/2006) which came to be finally decided vide judgment dated 18.10.2008 (correct date is 18.01.2008), in which the prayer made by the defendant for seeking declaration of title and permanent injunction was declined. Subsequently, this judgment dated 18.01.2008 was made subject-matter of appeal before the First Appellate Court in Civil Appeal No. 10-A/2008 which was also dismissed vide judgment dated 06.08.2008, which was assailed in Second Appeal No.552/2008 before this Court. The said second appeal was lateron withdrawn by the defendant. On this ground, the plaintiff has pleaded that the filing of litigation at the instance of the defendant establishes the ownership of the plaintiff and that, the defendant has no right available in law for interfering in peaceful possession of the plaintiff by attempting to break the lock on 19.07.2009.
4. The defendant filed his Written Statement and admitted the pleading with respect to filing of the litigation at his instance. However, the defendant categorically denied devolution of title in favour of the plaintiff in furtherance to the Family Settlement shown to have been entered on 22.05.1965. He further stated that the defendant has remained in possession of the suit property and at no occasion, the same was in possession -( 3 )- SA No. 592/2011 of the plaintiff. In order to substantiate this pleading, he pointed out the proceeding dated 08.10.2008 initiated by Police Station Hujrat Kotwali for maintaining peace and tranquility as the husband of the plaintiff caused nuisance.
5. During the pendency of the trial, plaintiff No. 2 died and his legal representatives were substituted in the array of parties. The statements of two witnesses were recorded on behalf of the plaintiff, out of them Mohd. Shafiq, PW-1, later presented the power of attorney executed by plaintiff No. 1 to imply that he is deposing before the Court in place of plaintiff No. 1. In the cross-examination, he stated about the conduct of the defendant and also made reference to document dated 22.05.1965 in para 22 of his statement and acknowledged the fact that the same has not been placed on record by the plaintiff although he pointed out the possibility that the same may be in possession of the plaintiff. The statement of Rafiq Khan, PW-2, was also on the same lines as Shafiq Khan (PW-1). However, it is clear that no document was placed on record by the plaintiff to substantiate her claim with respect to the suit property.
6. After conclusion of the evidence by both the parties, the Trial Court pronounced the judgment dated 08.07.2011 and arrived to a definite conclusion that the plaintiff has failed in establishing her case and the filing of litigation at the instance of defendant is of no assistance because the same would have been dismissed on account of the fact that the plaintiff in that case, who is the defendant in the present case, did not establish his title and not on the ground that the Defendant in that case was able to establish the chain of title in his favour.
-( 4 )- SA No. 592/2011With respect to the relief of permanent injunction, it was observed that the plaintiff is in fact seeking injunction against the co-occupier of the suit property which is prohibited in law. Consequently, for lack of evidence in favour of the plaintiff, the suit was dismissed vide the impugned judgment. The said judgment was challenged by filing an appeal under Section 96 of CPC, in which it was categorically pleaded that the Trial Court ought to have given consideration to the fact that the previous round of litigation at the instance of defendant has implication of settling the rights of the defendant over the suit property and the prayer of declaration of title cannot be denied against the defendant particularly in light of the fact that the findings recorded by the Court in previous round of litigation has attained finality by virtue of withdrawal of Second Appeal No. 552/2008 by defendant.
7. The First Appellate Court carefully examined the material on record and arrived at a conclusion that the Trial Court has rightly declined to decree the suit for want of documents. Apart from it, the Appellate Court affirmed the findings with respect to implication of judgments in previous round of litigation to the facts of the instant case. Consequently, the First Appeal was dismissed vide judgment dated 15.11.2011.
8. This Appeal to challenge the judgment dated 15.11.2011 was diverted to a different issue than on the question of admission due to the application filed by the present plaintiff under O. 41 R. 27 of CPC bearing IA No. 3510/2013, whereafter learned counsel for the appellant has advanced arguments on admission as well as on the said IA.
9. Vide IA No. 3510/2013, the appellant seeks to bring -( 5 )- SA No. 592/2011 on record the documents procured by him under the provisions of Right to Information Act from the Municipal Corporation, Gwalior, which reflects the process of application for mutation moved by the defendant as also contains the documents which have been acknowledged by both the parties during all rounds of litigation such as document dated 22.05.1965. Learned counsel for the appellant submitted that it is obligatory upon the Court to first decide on the application preferred under Order 41 Rule 27 of CPC before venturing into the merits of the case, as the decision on such application will have direct bearing upon the outcome of the instant appeal. To substantiate this contention, the appellant has relied upon the judgments of Hon'ble Apex Court in the cases of State of Rajasthan v. TN Sahani and Others, (2001) 10 SCC 619, Jatinder Singh v. Mehar Singh, (2009) 17 SCC 465, and other judgments on similar issue whereas learned counsel for the respondents has pointed out that the application under Order 41 Rule 27 of CPC is not maintainable at this stage under Section 100 of CPC and therefore, he prayed for dismissal of this application. Having considered the rival contentions of the parties on this ground, this Court has no hesitation in observing that the obligation of the Court to take decision on such Application is well-recognized. However, the Court is required to bear in mind the scope of Application under O. 41 R. 27 of CPC and the same cannot be allowed on mere asking.
10. The Hon'ble Apex Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015) 17 SCC 713, has observed that:
"12. From the opening words of sub-rule -( 6 )- SA No. 592/2011 (1) of Rule 27, quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfilment of either of the three conditions mentioned in Rule
27. In the case at hand, no application was moved before the trial court seeking scientific examination of the document (Ext. A-4), nor can it be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him. Now it is to be seen whether the third condition i.e. one contained in clause (b) of sub-rule (1) of Rule 27 is fulfilled or not.
13. In K.R. Mohan Reddy v. Net Work Inc. [K.R. Mohan Reddy v. Net Work Inc., (2007) 14 SCC 257] this Court has held as under: (SCC p. 261, para 19) "19. The appellate court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial court, but it will be different if the court itself requires the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the court. But mere difficulty is not sufficient to issue such direction."
14. In North Eastern Railway Admn. v. Bhagwan Das [North Eastern Railway Admn. v. Bhagwan Das, (2008) 8 SCC 511] this Court observed thus: (SCC pp. 515-16, para 13) "13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 -( 7 )- SA No. 592/2011 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist."
15. In N. Kamalam v. Ayyasamy [N. Kamalam v. Ayyasamy, (2001) 7 SCC 503] this Court, interpreting Rule 27 of Order 41 of the Code, has observed in para 19 as under: (SCC p.
514) "19. ... the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal-- it does not authorise any lacunae or gaps in the evidence to be filled up. The authority and jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way."
16. In Union of India v. Ibrahim Uddin [Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362] this Court has held as under: (SCC p. 171, para 49) "49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced."
(emphasis in original)
17. The learned counsel for the appellant argued before us that the High Court, in revision, at an interim stage of appeal pending -( 8 )- SA No. 592/2011 before the lower appellate court, should not have interfered in the matter of requirement of additional evidence.
18. We have considered the argument advanced on behalf of the appellant and also perused the law laid down by this Court as to the exercise of revisional power under Section 115 of the Code in such matters. In Mahavir Singh v. Naresh Chandra [Mahavir Singh v. Naresh Chandra, (2001) 1 SCC 309] , explaining the scope of revision in the matters of acceptance of additional evidence by the lower appellate court interpreting expression "or for any other substantial cause" in Rule 27 of Order 41, this Court has held as under: (SCC p. 314, para 5) "5. ... The words 'or for any other substantial cause' must be read with the word 'requires', which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply as noticed by the Privy Council in Kessowji Issur v. Great Indian Peninsula Railway Co. [Kessowji Issur v. Great Indian Peninsula Railway Co., 1907 SCC OnLine PC 9 : (1906-07) 34 IA 115 : ILR (1907) 31 Bom 381] It is under these circumstances such a power could be exercised.
Therefore, when the first appellate court did not find the necessity to allow the application, we fail to understand as to how the High Court [Naresh Chandra v. Mahavir Singh, 2000 SCC OnLine P&H 610 : (2001) 2 ICC 273] could, in exercise of its power under Section 115 CPC, have interfered with such an order, particularly when the whole appeal is not before the Court. It is only in the circumstances when the appellate court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order 41 Rule 27 CPC, the whole appeal was before it and if the first appellate court is satisfied that additional evidence was not -( 9 )- SA No. 592/2011 required, we fail to understand as to how the High Court could interfere with such an order under Section 115 CPC."
19. In Gurdev Singh v. Mehnga Ram [Gurdev Singh v. Mehnga Ram, (1997) 6 SCC 507] this Court, on similar issue, has expressed the view as under: (SCC p. 508, para 2) "2. We have heard the learned counsel for the parties. The grievance of the appellants before us is that in an appeal filed by them before the learned Additional District Judge, Ferozepur, in an application under Order 41 Rule 27(b) of the Code of Civil Procedure (CPC) the learned Additional District Judge at the final hearing of the appeal wrongly felt that additional evidence was required to be produced as requested by the appellants by way of examination of a handwriting expert. The High Court in the impugned order exercising jurisdiction under Section 115 CPC took the view that the order of the appellate court could not be sustained. In our view the approach of the High Court in revision at that interim stage when the appeal was pending for final hearing before the learned Additional District Judge was not justified and the High Court should not have interfered with the order which was within the jurisdiction of the appellate court. The reason is obvious. The appellate court hearing the matter finally could exercise jurisdiction one way or the other under Order 41 Rule 27 specially clause (b). If the order was wrong on merits, it would always be open for the respondent to challenge the same in accordance with law if an occasion arises to carry the matter in second appeal after an appellate decree is passed. But at this interim stage, the High Court should not have felt itself convinced that the order was without jurisdiction. Only on this short question, without expressing any opinion on the merits of the controversy involved and on the legality of the contentions advanced by both the learned counsel for the parties regarding additional evidence, we allow this appeal, set aside the order of -( 10 )- SA No. 592/2011 the High Court."
Similarly, in another judicial pronouncement by the Hon'ble Apex Court in Union of India v. K.V. Lakshman, (2016) 13 SCC 124, it was observed that:
"36. Order 41 Rule 27 of the Code is a provision which enables the party to file additional evidence at the first and second appellate stage. If the party to appeal is able to satisfy the appellate court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject-matter of the lis, the court should allow the party to file such additional evidence. After all, the court has to do substantial justice to the parties. Merely because the court allowed one party to file additional evidence in appeal would not by itself mean that the court has also decided the entire case in its favour and accepted such evidence. Indeed once the additional evidence is allowed to be taken on record, the appellate court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal."
11. The application of the ratio decidendi of the aforestated case-laws to the factual matrix of the present case persuades this Court to allow the application preferred under Order 41 Rule 27 of CPC for the reason that even though this is sixth round of litigation with respect to the suit property and the parties had ample opportunity to lead evidence in support of their pleadings by relying on necessary documents; however, the document dated 22.05.1965 which has been placed on record along with IA No. 3510/2013 is significant to draw curtains on the claims of the parties. In fact, it is borne out from the record that the document dated 22.05.1965 is the common thread in the respective stands canvassed by both the parties before the Courts below and to do substantial justice, the admissibility of -( 11 )- SA No. 592/2011 the document dated 22.05.1965 is required to be gone into and the parties are required to be given an opportunity to adduce evidence indicating the implication of document dated 22.05.1965 to their respective claims. It is also worth observing that the other family members who are presently not arrayed as parties to the litigation are also referring to the existence of the document dated 22.05.1965 and therefore, the possibility of another round of litigation at the behest of unimpleaded family members cannot be ruled out whereas the finding of the Court with respect to the document dated 22.05.1965 will give finality to the claims of the parties and this will prevent further litigation with respect to the suit property and will also benefit the defendant in substantiating its pleading with respect to the document dated 22.05.1965.
12. Taking the aforesaid view of the matter, this Court is not venturing into the merits of the case at this stage as befire pronouncing final judgment, the admissibility of the document dated 22.05.1965 is to be examined and its implication over the respective claims of the parties. Consequently, the instant matter is remanded to the Trial Court with specific direction to confine its scope of inquiry with respect to the document dated 22.05.1965 which is an alleged Family Settlement Deed to observe the admissibility of the said document and its implication upon the respective claims of the parties after affording due opportunity to both the parties. Needless to observe that the Trial Court will grant full opportunity to the defendant also to produce documents of any nature of evidence in rebuttal. The Trial Court is specifically directed to conclude this process within a period of two months from the date of communication of this order.
-( 12 )- SA No. 592/201113. Parties are directed to appear before the trial Court on 4th September, 2017. The trial Court is not required to issue any notice for appearance of the parties. The registry is directed to transmit the record of this case henceforth to the Trial Court for necessary compliance.
The appeal stands disposed of in the above terms. No cost.
(S.K.Awasthi) Judge (yog)