Madhya Pradesh High Court
Sunil Parashar vs Kapil Khanna & Ors. on 21 February, 2017
MA-1143-2005
(SUNIL PARASHAR Vs KAPIL KHANNA & ORS.)
21-02-2017
ORDER
(Passed on 21.02.2017) Per : Sujoy Paul J.
This appeal filed under Order 43 Rule 1(u) of CPC is directed against the judgment dated 18.3.2005 passed in Civil Appeal No.24-A/03 whereby the court below has remanded the matter to the trial court by exercising powers under Order 41 Rule 23-A of CPC.
2. Briefly stated, the facts are that the plaintiff/ respondent filed a Civil Suit No.249-A/02 before the trial court. After completion of pleadings, issues were framed and evidence was recorded. The trial court by judgment dated 30.6.2003, dismissed the said civil suit. The said judgment was called in question by filing Civil Appeal No.24-A/03. The said appeal was finally heard by the appellate court and the matter was posted for delivery of judgment. At this stage, on 16.03.2005, the appellant/ plaintiff filed an application before the court below under section 41 Rule 27 CPC. The said application was vehemently opposed by the present appellant/ defendant. The court below by impugned judgment dated 18.03.2005, set aside the judgment and decree dated 30.6.2003 and invoked the powers under Order 41 Rule 23-A of CPC and remanded the matter back to the trial court with a direction to take additional evidence on record and permit the defendant to lead evidence in rebuttal. For this purpose, only one opportunity was directed to be given to the defendants. This judgment is assailed in the present appeal by contending that the documents which were sought to be produced as additional evidence were in possession of respondents No.1 and 2 during the entire trial but they willfully avoided to produce the same before the trial court. Such documents could not have been permitted to be produced by the court below. The plaintiff was negligent and did not take necessary steps to produce and prove the relevant documents before the trial court. Thus, at appellate stage, the appellant could not have been permitted to improve his case. It is further contended that the necessary ingredients for invoking order 41 Rule 27 CPC were not satisfied and the court below has mechanically allowed the said application.
3. Shri Ahilesh Jain, learned counsel for the appellant, in support of his contention relied on the judgments in the case of K.R.Mohan Reddy Vs. M/s Net Work Inc.-AIR 2008 SC 579, Municipal Corporation, Hyderabad Vs. Sunder Singh-AIR 2008 SC-2579, Murari Lal Vs. Ram Kumar Ojha and another-2015(1) JLJ-183 and H.V.Vedvyas Acharya Vs. Shiv Shankar and others-AIR 2010 (Suppl) SC
394. Lastly, reliance is placed in Syeda Rahimunnisa Vs. Malan Bi (Dead) by L.Rs and another etc.-AIR 2016 SC 4653. Shri Ahkilesh Jain, counsel for the appellant further contended that the court below has given a specific finding that permission to file additional evidence cannot be permitted under Rule 27(1)(a) and (aa). The court below allowed the application by treating it to be only under Rule 27(1)(b) of Order 43. He submits that the reasons assigned in the application preferred under Order 41 Rule 27 CPC do not fulfill the requirement of sub-clause (b).
4. Per contra, Shri Ashok Tiwari, learned counsel for the respondent/ plaintiff supported the impugned order. He submits that the judgment passed by the court below is in accordance with law.
5. No other point is pressed by learned counsel for the parties.
6. I have heard learned counsel for the parties at length and perused the record.
7. The trial court in its judgment framed nine issues viz;(1) Whether the disputed piece of land described in para 2 of plaint was executed through a registered sale-deed by Bihari Lal on 12.5.1967 in favour of plaintiffs grand father and above disputed land's ownership was conveyed by seller on above date to buyer ? (2) Whether Biharilal executed sale-deed for security of debt taken from Devi Lal which was agreed to be extinguished after return of debt according to settled conditions by both parties in sale deeds ? (3) Whether after execution of sale-deed on 12.5.1967 by Biharilal, his right of ownership to disputed land ceased ? (4) Whether Biharilal did not have possessory rights or right to register sale deed of disputed land to D.W.1 and D.W.2 on 28.1.1971 ? (5) Whether due to physical possession of disputed land, D.W.1 and D.W.2 have become owners by adverse possession (6) Whether plaintiff's claim as presented, is not maintainable ? (7) Whether plaintiffs claim is barred by limitation ? (8) Whether plaintiff has not properly valued the suit ? (9) Relief and cost ?
8. Most of the issues were decided against the plaintiff. Admittedly, the appeal was finally heard by the appellate court and was reserved for judgment. At this stage, an application under Order 41 Rule 27 CPC was filed by contending that certain documents relating to revenue entry for the period between 1975 to 1980, were produced by the plaintiffs before the court below. The photocopies of these documents are available in the âDâ file of the trial court. It is contended by the plaintiffs that certified copies of these documents were given by the power of attorney holder to the then counsel Shri R.L.Thakur. However, because of mistake, the said certified copies could not be produced before the trial court. During a search in the office, the certified copies of these documents could be traced on 15.3.2005. The said document are necessary for lawful adjudication of the matter. The documents were accordingly filed after about 17 years before the lower appellate court. The court below opined that the application preferred does not fall within the ambit of Rule 27 (1)(a) and (aa) of Order 43 CPC. Thereafter, a question was framed âWhether plaintiffs can be permitted to file such documents as additional evidence as per clause (b) of Rule 27(1) of Order 43 ? The Court below allowed the said application on the ground that the relevant revenue records are public documents. Since those documents could not be produced before the court below, the court below could not examine the effect of such documents on the merits of the case. Since the documents are important and related with possession of plaintiffs on the land in question, the said documents are necessary for lawful adjudication of the matter between the parties.
9. The pivotal question is âwhether the court below was justified in allowing the said application on the basis of aforementioned reasonsâ ?.
10. Before dealing with this aspect, it is apt to remember that as per clause (b) of rule 27(1) of Order 43, the additional evidence can be taken provided the conditions mentioned in Clause (b) are satisfied. Clause (b) reads as under :-
2. â(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.â (Emphasis supplied) It is noteworthy that power of remand flowing from Order 41 Rule 23 CPC can be exercised if (i) the trial court dispose-of the case otherwise than that of preliminary point, (ii) the decree is reversed in appeal and re-trial is considered necessary. In other words, if appellate court finds a judgment under appeal to be not satisfactory in the manner required by Order 22 Rule 43 CPC or Order 41 Rule 21 CPC and such a judgment is not a judgment in the eyes of law, it may set aside the same and send the matter back for re-
writing of judgment so as to protect the valuable rights of the parties. The appellate court should be circumspect in remanding the matter and such power should not be exercised when the case is not covered either by Rule 23 or 23-A of Order 41 CPC. The Apex Court deprecated the practice of remanding the cases in routine manner without ensuring that necessary test for such remand flowing from Rule 23 or 23-A of Order 41 are satisfied. {See :
P.Purushottam Reddy and another Vs. Pratap Steels Ltd.-(2002) 2 SCC 686 and Murari Lal Vs. Ram Kumar Ojha and another -2015(1) JLJ-183}.
11. The photocopies of relevant documents were filed by the plaintiffs before the trial court. During pendency of the suit before the trial court, the plaintiffs did not take steps to produce the certified copies of the said documents. The court below has not given any findings that it required the documents for delivering the judgment. In Parsotim Thakur Vs. Lal Mohar Thakur-AIR
-1931 PC-131, the court opined that under Rule 27 clause (1)(b), it is only where the appellate court `requires' it (i.e finds it needful).... The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applied to adduce fresh evidence, but `when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent'. The Privy Council further held, It may well be that the defect may be pointed out by a party, or that a party may move the court to supply the defect, but the requirement must be the requirement of the court upon its appreciation of evidence as it stands. The court while exercising this power is obliged to record its reasons for doing so. It is further held that such power should be exercised sparingly. In Union of India Vs. Ibrahim Uddin and another- (2012) 8 SCC 148, the Apex Court followed the said principle and held that âthe 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. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court.â
12. In P.Purushottam Reddy and another Vs. Pratap Steels Ltd.-(2002) 2 SCC 686, it was emphasized that as per Rule 27 of Order 41, it is the requirement of the court ( and not of any of the parties) and the conscience of the court feeling inhibited in satisfactory disposal of lis which rule the exercise of this power.
13. The Apex Court followed the principle laid down in Municipal Corporation for Greater Bombay Vs. Lala Pancham for Bombay and others- AIR 1965 SC 1008, N.Kamalam (Dead) and another Vs. Ayyasamy and another-(2001) 7 SCC-503 in State of Gujarat and another Vs. Mahendra Kumar Parshottambhai Desai (dead) by L.Rs.-(2006) 9 SCC-772. In this case it was held that Rule 27 of Order 41 did not entitle the appellate court to let-in the fresh evidence at the appellate stage. Whether, even without such evidence it can pronounce the judgment, it does not entitle the appellate court to let-in fresh evidence only for the purpose of pronouncement of judgment in a particular way. In N.Kamalam (supra), it was made clear that 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 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. In Asha Narag Vs. Dr. Ved Prakash Narang- (1997) 11 SCC 667, the Supreme Court held that it was not the case of the appellant that the trial court had refused to examine her nor is it her case that any new fact had come to her knowledge which she did not know at the time of trial, necessitating leading of additional evidence. Similarly, it is nobody's case that the High Court required the documents to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. Thus, the Apex Court opined that clause (b) is not attracted.
14. In the considered opinion of this court, in the impugned judgment, the court below has not given any finding that the additional documents/ evidence was necessary for the court to deliver its judgment. Hence, the necessary ingredients for invoking clause (b) of Rule 27 of Order 41 CPC are not satisfied. In the impugned judgment, no justifiable reasons are assigned for entertaining additional documents/ evidence. In other words, without there being any substantial cause, the court below has allowed the said application. The court below was not obliged to authorize the plaintiff to fill-up the lacunae or gaps in evidence at the stage of appeal. In absence of such additional evidence also, the court below could have pronounced its judgment. Hence, in my view, the court below has mechanically exercised the power and remanded the matter back. For the reasons stated above, it is clear that the necessary requirement to attract Rule 27(1)(b) of Order 43 CPC were not fulfilled.
15. I also find support in my view from the judgment of supreme court in K.R.Mohan Reddy (supra). In this case, it was laid down in clear terms that as per clause (b) of sub rule (1) of Rule 27 of Order 41 of CPC, the appellate court was bound to consider the entire evidences on record and come to an independent finding for arriving at a just decision with an adduction of additional evidence as has been prayed by the appellant was necessary. As noticed, in the present case, the appellate court has not recorded any such satisfaction. Similarly in Municipal Corporation, Hyderabad (supra), it was laid down that power of remand flowing from Rule 23 of Order 41 is extremely limited. The court below should loath to exercise its powers. It should not be exercised routinely. The power must be based on appropriate findings. The same principle is followed by the Supreme Court in the case of H.V.Veda Vyas Acharya (supra). In the case of Malan Bi (sukpra), the Supreme Court held that when on the basis of material on record it was open to the High Court to decide the appeal on merits, there was no occasion for the High Court to remand the matter back before the court below.
16. As analyzed above, it is clear that the necessary ingredients for invoking clause (b) of Rule 27(1) of Order 43 CPC were not available before the court below and the court below has mechanically remanded the matter before the trial court. Hence, such order cannot sustain judicial scrutiny. Accordingly, the impugned order dated 18.03.2005 is set aside. In the result, the lower appellate court shall decide the appeal on merits.
17. Appeal is allowed. No cost.
(SUJOY PAUL) JUDGE MKL