Chattisgarh High Court
Bodhan vs Nankoo (Death) Through Lrs on 15 November, 2022
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
Second Appeal No. 38 of 2012
Bodhan, S/o Gajraj, aged about 74 Years, R/o Kashigarh, Tahsil
Jaijaipur, District Janjgir-Champa, Chhattisgarh. (Plaintiff
---- Appellant
Versus
1. Nankoo (Diedf Through Lrs. As Per Honble Court Order Dated 29-06-
2021.
1.1 - (If. Setram, S/o Late Nankoo, Aged About 50 Years Cast
Chandranahu, R/o Village Kashigarh, Tahsil Jaijaipur District Janjgir
Champa, Chhattisgarh.
1.2 - (Iif. Sukilchand S/o Late Nankoo Aged About 40 Years Cast
Chandranahu, R/o Village Kashigarh, Tahsil Jaijaipur District Janjgir
Champa, Chhattisgarh.
1.3 - (Iiif. Gendram S/o Late Nankoo Aged About 30 Years Cast
Chandranahu, R/o Village Kashigarh, Tahsil Jaijaipur District Janjgir-
Champa, Chhattisgarh.
1.4 - (Ivf. Binda D/o Late Nankoo Aged About 57 Years Cast
Chandranahu, R/o Village Kashigarh, Tahsil Jaijaipur District Janjgir-
Champa, Chhattisgarh.
1.5 - (Vf. Amrika D/o Late Nankoo Aged About 54 Years Cast
Chandranahu, R/o Village Kashigarh, Tahsil Jaijaipur District Janjgir-
Champa, Chhattisgarh.
1.6 - (Vif. Amrit D/o Late Nankoo Aged About 45 Years Cast
Chandranahu, R/o Village Kashigarh, Tahsil Jaijaipur District Janjgir-
Champa, Chhattisgarh.
1.7 - (Viif. Moharmati D/o Late Nankoo Aged About 38 Years Cast
Chandranahu, R/o Village Kashigarh, Tahsil Jaijaipur District Janjgir-
Champa, Chhattisgarh.
1.8 - (Viiif. Sundarmati, Wd/o Late Nankoo, Aged About 57 Years, Cast
Chandranahu, R/o Village Kashigarh, Tahsil Jaijaipur District Janjgir-
Champa, Chhattisgarh.
2. Radhabai, Wd/o Roopsai, Aged About 55 Years, R/o Village Kashigarh,
Tahsil Jaijaipur, District Janjgir-Champa, Chhattisgarh.
3. Jagdish, S/o Roopsai, Aged About 22 Years, R/o Village Kashigarh,
Tahsil Jaijaipur, District Janjgir-Champa, Chhattisgarh.
4. State of Chhattisgarh Through Collector, Janjgir-Champa,
Chhattisgarh. (Defendantsf.
---- Respondents
15/11/2022 Shri H.B. Agrawal, Senior Advocate with Smt. Swati Agrawal, Counsel for the appellant.
Shri Sanjeev Kumar Agrawal, Panel Lawyer for State/respondent No.4.
Shri Viprasen Agrawal, Counsel for respondent No.2 & 3. Shri K. K. Dewangan, Counsel for respondent No.1 (i to iiif.
1. Heard I.A. No.3/2014, application under Order 41 Rule 27 of the Civil Procedure Code, 1908.
2. This Second Appeal has been preferred by the appellant/plaintif against the judgment and decree dated 13.07.2011 passed in Civil Appeal No.23-A/2009 by the Additional District Judge, Sakti, District Janjgir-Champa, (C.G.f thereby the Additional District Judge has reversed the judgment and decree dated 30.09.2009 (Annexure A/1f passed in Civil Suit No.57-A/2007 by the Civil Judge, Class - II, Jaijaipur, District - Janjgir, (C.G.f whereby the Civil Judge had decreed the suit of appellant/plaintif for declaration of title and injunction.
3. Vide order dated 21.06.2021 passed by this Court, this appeal was admitted for fnal hearing on the following substantial question of law :
"Whether the First Appellate Court is justifed in reversing the judgment and decree of the trial Court for want of non production of transfer deed dated 17.07.1963 and judgment and decree dated 16.12.1968 by recording a fnding perverse to the record?"
4. The First Appellate Court has reversed the judgment and decree of the trial Court on the ground of non-production of transfer deed dated 17.07.1963 and judgment and decree dated 16.12.1968 by the appellant/plaintif.
5. Vide application fled under Order 41 Rule 27 of the Civil Procedure Code, 1908, appellant/plaintif wants to submit the copy of sale deed dated 17.07.1963 executed in favour of minor Bodhan (appellant/ plaintif hereinf through his natural guardian and also wants to submit the copy of judgment passed in Civil Suit No.5-A/1966.
6. Learned Senior Counsel appearing for the appellant/plaintif submits that the above mentioned documents are essential to decide the matter and this appeal. Therefore, it is prayed that both the documents be taken on record as additional evidence, in the interest of justice. According to the learned Senior Counsel, the above two documents has been handed-over to the Counsel for the appellant but he has not submitted the same in the earlier point of time. In support of this application, an affidavit of Bodhan i.e. appellant/plaintif is also fled.
7. Learned Counsel appearing for the State and respondents oppose the application and arguments advanced by learned Senior Counsel.
8. I have heard learned Counsel appearing for the parties and perused the record of both the Courts below with utmost circumspection.
9. On due consideration, it appears that both the above documents are important documents and helpful to decide this appeal. Accordingly, I.A No.3/2014, application under Order 41 Rule 27 of the Civil Procedure Code, 1908 is allowed. Both the above mentioned documents are directed to be taken on record as additional evidence.
10.The question would be of once the document is taken on record as an additional evidence what should be procedure followed in the second appeal.
11. Dealing with the issue, the Supreme Court, in (2010) 8 SCC 423 [Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refneries)], held that once the document is taken on record as an additional evidence, opportunity must be given to other side to produce the evidence in rebuttal, if they so desire. Relevant paragraphs 16 and 17 of the report read 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-defendant 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."
12.In (2018) 4 SCC 659 (Akhilesh Singh alias Akhileshwar Singh v. Lal Babu Singh), it was further held by the Supreme Court 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 the 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 Lal Babu v. Akhilesh Singh, 2017 SCC OnLine Pat 309 the IAs as well as the first appeal. The fact that the contesting respondents to the first appeal, who are 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.
15. A three-Judge Bench of this Court in LAO v.
H. Narayanaiah, (1976) 4 SCC 9 had occasion to consider Order 41 Rule 27 in context of admission of additional evidence by the appellate court. This Court had observed that in the event the High Court admits an additional evidence, an opportunity should have been given to the other party to rebut any inference arising from its existence by leading evidence. In para 28 of the judgment, following has been laid down: (SCC p. 20) "28. The Karnataka High Court had, however, not complied with provisions of Order 41 Rule 27 CPC which require that an appellate court should be satisfied that the additional evidence is required to enable it either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Order 41 Rule 27 CPC. We are of opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence."
(emphasis supplied)
16. To the same effect is another judgment of this Court in Shalimar Chemical Works Ltd. v. Surendra Oil and Dal Mills, (2010) 8 SCC 423. In this case also, the Court had occasion to consider Order 41 Rule 27. This Court has again laid down that when documents are taken in additional evidence, an opportunity ought to have been given to other party to lead evidence in rebuttal. In the above case also, the High Court simultaneously proceeded to decide the appeal along with admitting additional evidence on record. In paras 16 to 18, the following has been laid down: (SCC p. 430) "16. The learned Single Judge rightly allowed Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills, 2000 SCC OnLine AP 636 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 of 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 rebuttal evidence or make a limited remand as provided under Order 41 Rule 28."
13. Thus, in the light of above mentioned law laid down by the Supreme Court, opportunity has to be given to the other side to lead evidence in rebuttal.
14.Order 41 Rule 28 CPC provides that wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or in other Subordinate Court, to take such evidence and to send it when taken to the Appellate Court.
15.Order 41 Rule 29 CPC provides that where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confned, and record on its proceedings the points so specifed.
16.In the light of provisions contained under Order 41 Rule 28 CPC, both the documents which has been directed to be taken as additional evidence along with record of both the Courts below is directed to be sent to the First Appellate Court. The First Appellate Court shall give the respondents/ defendants an opportunity to produce evidence in rebuttal if they so desire and then the First Appellate Court shall take evidence of the parties confning to legality and validity of such documents, if any, are fled by the respondents/defendants, the said Court would complete hearing/recording of evidence etc. latest by 28.02.2023 and the First Appellate Court shall send back the record immediately thereafter to this Court. The parties shall appear before the First Appellate Court on 01.12.2022.
17.The matter be listed before this Court for further consideration on 15.03.2023.
Sd/-
(Arvind Singh Chandel) Judge Prakash