Punjab-Haryana High Court
V.K. Chhabra vs Samir Bhatia And Ors. on 31 August, 1999
Equivalent citations: (1999)123PLR860
Author: R.L. Anand
Bench: R.L. Anand
ORDER R.L. Anand, J.
1. This is a second appeal against the order and has been directed against the judgment dated 12.2.1999, passed by the Additional Sessions Judge, Panipat who set aside the findings of the trial Court on issue No. 2 and allowed the plaintiff-appellant to lead additional evidence under Order 41 rule 27, C.P.C.
2. Some facts can be noted in the following manner:-
3. Sameer Bhatia, minor, through his natural guardian Smt. Bimla Devi (mother) filed a suit for declaration against the present appellant and others and gave challenge to the sale deed dated 28.2.1974 executed by Shri Narain Dass, father of the plaintiff in favour of Kesho Nath, husband of defendant No. 1 and father of defendants No. 2 to 7 on the ground that the property which was sold by Narain Dass was ancestral and the sale was not binding on the plaintiff as he had a pre-existing right in the said alleged ancestral property. These allegations of the plaintiff were denied by the defendants and they stated that the property in the hands of Narain Dass was his personal property and in the alternative, it was pleaded that the sale by Narain Dass was for legal necessity and, as such, it binds the interests of the plaintiff.
4. From the above pleadings of the parties, the following issues were framed by the trial Court:-
"(1) Whether the impugned sale-deed vide dated 28.2.1974 is null and void, on the grounds, as alleged, if so, its effect? OPP. (2) Whether the property in dispute was sold away without consideration and without any legal necessity and it was not an act of good management, on the grounds, as alleged, if so, its effect? OPP. (3) Whether the impugned property is ancestral property? OPP.
(4) Whether the plaintiff has got no locus standi to file the present suit? OPD.
(5) Whether the suit is bad for mis-joinder and non-joinder of the necessary parties? OPD. (6) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD. (7) Whether no cause of action has accrued to the plaintiff to file the present suit? OPD. (8) Whether the suit is barred by law of limitation? OPD.
(9) Relief."
5. Ultimately, the trial Court dismissed the suit by holding that the property in the hands of Narain Dass was non-ancestral. Also, it was observed by the trial Court that the sale executed by Narain Dass was for legal necessity. Resultantly, the suit was dismissed. Aggrieved by the judgment and decree of the trial Court, the minor-plaintiff filed the first appeal before the Additional District Judge, Panipat. Along with the appeal, he also filed an application under Order 41 Rule 27 C.P.C., and prayed for placing on record the additional documents, which are as follows:-
(1) Recovery schedule - Item No. 2 List No. 92.
(2) Order dated 24.1.1953 passed by the Claim Officer, Jalandhar.
(3) Conveyance Deed executed by the State Government in favour of Narain Dass, and (4) Certificate of registration of refugee claim dated 23.3.1948."
6. The first appellate Court gave the concession of minority to the plaintiff-appellant and allowed the application under Order 47 Rule 21 C.P.C. Further, in para 11 of the impugned judgment, it was held as follows:-
"......the application for permission to lead additional evidence on issue No. 3 has been allowed in view of the findings of the Learned Trial Court on issue No. 3 are not likely to effect the result of this case. In this situation, I fee, there is no necessity to set aside the whole judgment and decree. As the permission has been given to lead additional evidence to the plaintiff, the findings of the Learned Trial Court only on issue No. 3 stand set aside."
7. Aggrieved by the judgment dated 12.2.1999, the defendant has come in appeal.
8. I have heard Mr. Ashwani Talwar, Advocate, on behalf of the appellant and Mr. R.K. Handa, counsel for the respondent and with their assistance have gone through the record of this case.
9. The learned counsel for the appellant submitted that the ingredients of Order 41 Rule 27 C.P.C. were not attracted in this case. The suit was, in fact, filed at the instance of Narain Dass, who was in possession of the proposed additional evidence which could be produced at the trial stage. Moreover, the allowing of the application under Order 41 Rule 27, C.P.C. is an exercise in nullity when the first appellate Court has also remarked that the findings of the trial Court on issue No. 2 regarding the legal custody are correct. The counsel further submitted that there was hardly any necessity to call for the report of the trial Court on issue No. 3. The proposed additional evidence was in the nature of documentary evidence which could be admitted by the appellate court under Order 41 Rule 20, C.P.C. for any sufficient cause and the defendant-appellant could be afforded the opportunity to rebut that evidence. The first appellate court has unnecessarily dragged the defendant to further litigation.
10. On the contrary, the learned counsel for the plaintiff-respondent has submitted that it is the right of the minor independently to challenge the sale deed under the recognised principles of law, such as, without legal custody, etc. If the property is held to be ancestral and the same has been sold without legal necessity, the suit of the plaintiff-respondent can always succeed.
11. I have considered the contentions of the counsel for the parties. A reading of the language of Order 41 Rule 27, C.P.C. shows that it is not the right of the parties to lead additional evidence before the appellate court. However, the Court has the power to allow the parties to lead additional evidence if the proposed additional evidence inspite of exercise of due diligence was not within the knowledge of the appellant and he could not produce it before the trial Court and, secondly, the proposed additional evidence is necessary to be produced at the appellate stage enabling the Court to pronounce the judgment or for any sufficient cause.
12. Issue No. 3 in this case was to the effect whether the property in question was ancestral under the hands of Narain Dass or not. I agree with the counsel for the respondent to the extent that it is the right of the minor to establish the ancestral nature of the land because he has given challenge to the sale deed on the ground that the property in the hands of Narain Dass, his father, was ancestral. Of course, this fact is being disputed by the defendant-appellant. The proposed additional evidence quoted above would show that it is in the nature of documentary evidence and per se admissible. In these circumstances, the proper course open to the appellate Court was to allow the appellant to produce the evidence and got it exhibited by giving a chance to the defendant-appellant to rebut the same by leading oral or documentary evidence. There was hardly any necessity on the part of the appellate Court to set aside the findings of the trial Court on issue No. 3. Furthermore, the appellate court should have awarded the costs to the defendant-appellant because he has to lead and bring fresh evidence in order to rebut the case of the plaintiff-respondent.
13. In this view of the matter, I allow this appeal, modify the order dated 12.2.1999 and give directions to the first appellate Court, i.e. the Additional District Judge, Panipat, to allow the plaintiff to place on record the four documents only, referred to above. These documents will be admitted into evidence subject to payment of Rs. 1,000/- as costs, which shall be paid by the plaintiff to the defendants. After the admission of these documents into evidence, the defendants shall be given opportunity to lead such evidence oral as well as documentary, to rebut the case of the plaintiff. After taking the evidence of both the parties, the first appellate court shall decide the appeal on merits of all the issues, according to law.
14. The parties through counsel are directed to appear before the first appellate court on 16.9.1999.
15. Let a copy of this order be sent to Additional District Judge, Panipat, for compliance.