Bombay High Court
Jagdishprasad Hiralal Gupta vs Omprakash Chelaram Gurbani on 14 August, 2018
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
SA 143/18 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
SECOND APPEAL No. 143/2018
Jagdishprasad Hiralal Gupta,
Aged about 75 years, Occupation : Business,
R/o Dhobi Galli, At Post & Tahsil
Khamgaon, District - Buldana. APPELLANT
.....VERSUS.....
Omprakash Chelaram Gurbani,
Aged about 53 years, Occupation : Business,
R/o Zulelal Nagar, Sindhi Colony,
At Post Tahsil - Khamgaon, District - Buldana. RESPONDENT
Shri B.N. Mohta, counsel for the appellant.
Shri B.G. Kulkarni, counsel for the respondent.
CORAM : A.S. CHANDURKAR, J.
DATE : 14 TH AUGUST, 2018.
ORAL JUDGMENT
Heard. ADMIT on the following substantial question of law:-
"After permitting the appellant to place on record additional evidence under provisions of Order XLI Rule 27 of the Code of Civil Procedure, 1908, whether further procedure under provisions of Order XLI Rule 28 of the Code ought to have been followed ?"
2. The appellant is the original defendant in the suit that was filed by the respondent herein seeking possession of the suit property. It is the case of the original plaintiff that he was the owner of the suit block which is a shop and that the defendant in his absence had committed trespass and taken over possession. The trial Court partly decreed the ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:37:30 ::: SA 143/18 2 Judgment suit and directed the defendant to handover possession of the same to the plaintiff. Being aggrieved, the defendant challenged the said decree by filing an appeal. In that appeal, the defendant sought to produce on record additional material in the form of various documents as per his applications at Exhibits 17, 20 and 22. This Court in Writ Petition No.6529 of 2017 had directed the appellate Court to consider those applications while hearing the appeal. The appellate Court permitted the production of those documents while deciding the appeal and thereafter by the impugned judgment dismissed the appeal. The cross-objection filed by the plaintiff was allowed and the decree was partly modified in respect of enquiry in the mesne profits. Being aggrieved, the defendant has filed the present second appeal.
3. Shri B.N. Mohta, learned counsel for the appellant, submitted that the appellate Court merely permitted production of the documents on record without further following the procedure prescribed by provisions of Order XLI Rule 27 and Rule 28 of the Code of Civil Procedure, 1908. It was submitted that as per aforesaid provisions, it was necessary for the appellate Court to determine whether the documents sought to be placed on record by way of additional evidence were relevant and mere production of the same was not sufficient. Thereafter if the additional evidence was permitted to be brought on record, further steps as required by provisions of Order XLI Rule 28 of the Code were ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:37:30 ::: SA 143/18 3 Judgment required to be taken. In absence of that exercise and non-consideration of those documents, the impugned judgment stands vitiated.
4. Shri B.G. Kulkarni, learned counsel for the respondent, supported the impugned judgment. He submitted that the documents sought to be placed on record were not relevant for deciding the appeal. The said documents were certified copies of the revenue records and same were not relevant for adjudicating the plaintiff's claim. No prejudice was caused by not considering those documents by the appellate Court.
5. Heard the learned counsel for the parties and perused the impugned judgment. It is not in dispute that this Court in Writ Petition No.6529 of 2017 had directed consideration of the applications filed under provisions of Order XLI Rule 27 of the Code while deciding the appeal. The appellate Court while considering those applications has merely permitted production of those documents. Considering the purpose of enacting the provisions of Order XLI Rule 27 which relate to bringing on record additional evidence, mere production of those documents would not serve any purpose. It was necessary for the appellate Court to have come to the conclusion that the documents sought to be brought on record by way of additional evidence were relevant and satisfied the requirements of law. After reaching that conclusion and permitting additional evidence to be brought on record, ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:37:30 ::: SA 143/18 4 Judgment an opportunity to the other side to counter those documents was also required to be given. In absence of that exercise being conducted, the adjudication of the applications under provisions of Order XLI Rule 27 of the Code is not in accordance with the law laid down in Union of India Versus Ibrahim Uddin & Another [(2012) 8 SCC 148]. On this short ground, the judgment of the appellate Court is liable to be set aside. The substantial question of law is answered by holding that mere production of additional documents was not in accordance with provisions of Order XLI Rule 27 of the Code and the same has thus vitiated the judgment of the appellate Court.
6. Accordingly, the following order is passed.
I) The Second Appeal is partly allowed. The judgment in Regular Civil Appeal No.71 of 012 dated 02.01.2018 is set aside. II) The proceedings are restored before the appellate Court for a fresh consideration in accordance with law. Needless to state that if the applications at Exhibits 17, 20 and 22 are allowed by the appellate Court, an opportunity be given to the plaintiff to counter that material. It is made clear that this Court has not examined the correctness of the findings recorded by the appellate Court on merits. The appeal shall be decided afresh in accordance with law on its own merits. ::: Uploaded on - 21/08/2018 ::: Downloaded on - 22/08/2018 00:37:30 :::
SA 143/18 5 Judgment
III) The parties shall appear before the appellate Court on
03.09.2018.
IV) The appeal be decided by the end of December-2018.
V) In the facts of the case, there would be no order as to costs.
JUDGE
APTE
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