Court No. - 36
Case :- MATTERS UNDER ARTICLE 227 No. - 4996 of 2016 Petitioner :- Atul Singh Respondent :- Pramod Kumar Singh And 7 Others Counsel for Petitioner :- Shiv Bahadur Singh Counsel for Respondent :- Atul Srivastava,Sharad Kumar Srivastava
Hon'ble Mrs. Sunita Agarwal,J.
Learned counsels for the parties are permitted to provide self-attested copies of the counter and rejoinder affidavits, exchanged between them, in view of the office report.
Heard learned counsel for the parties and perused the record.
This is defendant's petition directed against the order dated 31.8.2014, whereby the First appellate court has allowed the application 153Ga filed by the plaintiff/appellant in First Appeal No. 103 of 2002 under Order 41 Rule 27 CPC, to bring on record paper no. 11, which is Khasra of the year 1420 fasli, so as to establish that the plaintiff/appellant was in possession of the suit property.
It further transpires from the record that the defendant/petitioner had filed an application paper no. 167Ga for recall of the order dated 31.8.2014, which had also been rejected vide order dated 24.5.2016, which is also subject matter of challenge in the present petition.
At the outset, learned counsel for the petitioner submits that the appellant/opposite party herein is claiming his right in the suit property on the basis a will dated 4.6.1986 allegedly executed by Smt. Parwati, who had earlier executed a sale deed dated 19.9.1970 in favour of the original defendant no. 1, who was petitioner's father. She had further lost in the Original Suit No. 139 of 1980, filed for cancellation of the said sale deed. The judgment and decree dated 2.3.1984 of dismissal of Original Suit No. 139 of 1980 had been affirmed by the Second appellate court.
The submission is that the question of possession of the plaintiff/appellant over the suit property is not subject matter of consideration in the instant suit for injunction, which is based on the Will executed by a person, who had alienated the suit properly much earlier and had lost in her own battle.
Moreover, the First appellate court has proceeded to allow the application under Order 41 Rule 27 CPC ignoring three requirements of the said provision, which read as under:-
"27. Production of additional in Appellate Court.-
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise if due diligence, be produced by him at the time when the decree appealed against was or)
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined."
It is contended that none of the ingredients could be satisfied by the plaintiff for seeking to bring the Khasra Paper no. 11 of the year 1420 fasli, at the stage of the appeal. Neither due diligence had been shown by the applicant nor the First appellate court could hold that the said document was necessary to enable it to pronounce judgment in appeal.
Placing the judgment of the Apex Court in Union of India vs. Ibrahim Uddin and ANR reported in 2012 (8) SCC 148, in paragraph '41', it is contended that the application for additional evidence, if filed, at appellate stage, the Court has to consider it at the time of final hearing of the appeal i.e. at a stage when the First appellate court proceed to appreciate the evidence on record as it is not possible for the First appellate court to reach at the conclusion that the additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause, at any earlier stage.
It is contended that the order passed by the First appellate court in allowing the application for additional evidence under Order 41 Rule 27 CPC without considering this aspect of the matter, is a result of complete non-application of mind. The said order, therefore, cannot be sustained.
All these submissions of learned counsel for the petitioner as noted hereinabove could not be refuted by bringing any cogent argument before this Court, by the learned counsel for the respondents.
There is no dispute about the fact that the plaintiffs of Original Suit No. 419 of 1987 are asserting their rights in the suit property on the basis of the will deed dated 4.6.1986, allegedly executed by Smt. Parvati, who had lost in Original Suit No. 139 of 1980, seeking cancellation of sale deed dated 19.9.1970.
In the said scenario, having taken note of the judgment of the Apex Court in Union of India vs. Ibrahim Uddin (supra), this Court finds that the order dated 31.8.2014 passed by the First appellate court in allowing application under Order 41 Rule 27 CPC paper no. 153Ga at this stage, is in ignorance of the requirement of the statutory provisions. The said order, therefore, cannot be sustained and is hereby set aside.
Further, while keeping the application 153Ga under Order 41 Rule 27 CPC pending, the First appellate court is directed to proceed with the Civil Appeal No. 103 of 2002, as expeditiously as possible, and make all endeavours to decide the same, preferably, within a period of four months from the date of submission of certified copy of this order.
It goes without saying that the application 153Ga shall be considered and decided by the First appellate court at the time of final disposal of the appeal, in view of the observations made above.
It is further made clear that the First appellate court shall decide the said application, in accordance with law, independently, without being influenced by any of the observations made hereinabove.
Subject to the above observations and directions, the present petition is disposed of.
Order Date :- 27.2.2019 Brijesh