Karnataka High Court
Smt Chandra Bai W/O Bheema Naik vs Abdul Kluddus S/O Abdulsubhabn on 25 July, 2024
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 2883 OF 2007
BETWEEN
SMT. CHANDRA BAI
SINCE DEAD BY HER LRS
1(A) SMT. KAVITHA BAI
W/O LATE SRI. R.VIJAYKUMAR
AGED ABOUT 38 YEARS
1(B) R. THANESH NAIK
S/O LATE SRI. R VIJAYKUMAR
AGED ABOUT 23 YEARS,
1(C) R NETHRAVATHI
D/O LATE SRI, R. VIJAYKUMAR
AGED ABOUT 16 YEARS,
REPRESENTED BY HER NATURAL GUARDIAN,
MOTHER, SMT. KAVITHA BAI
1(D) SMT. JANAKI BAI
W/O LATE STI R. KEDARNATH NAIK
AGED ABOUT 38 YEARS
1(E) R CHINNU BAI
D/O LATE SRI. R KRISHNA NAIK
AGED ABOUT 16 YEARS,
REPRESENTED BY HER GUARDIAN,
SMT. JANAKI BAI.
APPELLANTS NO.1 TO 5 ARE
R/O HOUSE NO.131, WARD NO.23,
OPP. MARWADI GANESH TEMPLE,
COWL BAZAR, BALLARI DISTRICT-583102.
2
1(F) L.G.LAKSHMI BAI
W/O C G RAMA NAIK,
AGED ABOUT 64 YEARS,
R/O KALLAHALLI VILLAGE,
HOSAPETE TALUK,
VIJAYANAGARA DISTRICT-583201.
...APPELLANTS
(BY SRI RAGHAVENDRA RAO &
V. VODUA IYER, ADVOCATES FOR PROPOSED A1(A),
A1(B),(D)E,F, A1(C) IS MINOR REPTD.BY A1(A))
AND
1. ABDUL KHUDDUS S/O ABDUL SUBHAN,
AGED 42 YEARS, R/O NO.131/2,
KUNITHANA MAIN ROAD, COWL BAZAR,
BELLARY DIST-583104.
2. SMT. S.JAYA BAI W/O LATE SRI. R.RAMANJINAPPA
AGED ABOUT 53 YEARS,
R/O CHALLAKERE TALUK, KEREYAGALAHALLI,
CHITRADURGA DISTRICT-577543.
3. R. VASANTH NAIK
S/O LATE SRI. R. RAMANJINAPPA
AGED ABOUT 27 YEARS,
R/O #29, BELAGAL CROSS,
COWL BAZAR, BALLARI,
BALLARI DISTRICT-583102.
4. R BHARATHI BAI
D/O LATE SRI R. RAMANJINAPPA
AGED ABOUT 26 YEARS,
R/O KEREYAGALAHALLI TALUK,
CHITRADURGA DISTRICT-577543.
5. R. HARISH NAIK,
S/O LATE SRI. R RAMANJINAPPA
AGED ABOUT 24 YEARS
R/O #131, NEAR HITTINA CIRANI,
KEREYAGALAHALLI, THIMMAPPAIAHNAHALLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577543.
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6. R DHANAMMA BAI
W/O K. DURGYA NAIK,
AGED ABOUT 70 YEARS,
R/O WARD NO.27 D, NO.131,
MAIN ROAD, OPP. MARVADI GANESHA
TEMPLE COWL BAZAR BALLARI
BALLARI DISTRICT-583102.
7. R. RUKMINI BAI
W/O MD NAYEEM,
AGED ABOUT 48 YEARS,
R/O BESIDE SEVALAL COMPLEX,
BELAGAL ROAD, BELAGAL CROSS,
BALLARI DISTRICT-583102.
...RESPONDENTS
(SMT. PALLAVI S. PACHCHAPURE, ADVOCATE
SRI SRINAND A. PACHHAPURE,
SRI RAJENDRA R. PATIL, ADVOCATE FOR R1(BY GPA HOLDER);
SRI H.R.DESHPANDE & USHA H. DESHPANDE, ADEVOCATE FOR R1;
NOTICE TO T2 TO 7 ARE SERVED)
THIS RSA IS FILED U/S. 100 OF THE CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE PASSED BY THE II ADDITIONAL
CIVIL JUDGE (JR.DN.), BALLARY IN O.S.NO.370/2001 DATED
21.01.2004 AND ALSO THE JUDGMENT AND DECREE PASSED BY THE
PRINCIPAL CIVIL JUDGE (SR.DN.) AND CJM, BELLARY IN
R.A.NO.21/2004 DATED 24.07.2007 ALLOW THIS APPEAL WITH COSTS
AND GRANT SUCH OTHER RELIEFS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS
ON 24.07.2024 COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
The present second appeal is filed under Section 100 of the Code of Civil Procedure, 19081 by the defendant challenging the judgment and decree dated 24.07.2007 passed in R.A.No.21/2004 by the Principal Senior Civil Judge and CJM, Ballari2 and the judgment and decree dated 21.01.2004 passed in O.S.No.370/2001 by the II Additional Civil Judge, Ballari3, wherein the suit for declaration and possession has been decreed by the Trial Court which has been affirmed by the First Appellate Court.
2. The parties herein are referred to as per their ranking before the Trial Court for the sake of convenience.
3. It is the case of the plaintiff that he is the absolute owner of the house property bearing door no.131/2, ward No.XXIII situated at Khunithana Main Road, Cowl Bazar, Bellary measuring 11½ feet X 57 feet4 having 1 Hereinafter referred to as the 'CPC' 2 Hereinafter referred to as the 'First Appellate Court' 3 Hereinafter referred to as the 'Trial Court' 4 Hereinafter referred to as the 'Suit property' 5 purchased the same from his vendor Rahamath Bee on 31.03.1990 for valuable consideration. It is the further case of the plaintiff that his vendor was the absolute owner of the larger extent of property being entire property bearing no. 131, having purchased the same vide registered Sale Deed dated 22.08.1969. That his vendor sold 15½ feet x 57 feet to the defendant under the registered Sale Deed dated 22.08.1969 and retained the remaining portion of 11½ feet x 57 feet in the said survey number. That his vendor Rahamath Bee subsequently sold the portion retained by him to various persons and thereafter the said Rahamath Bee once again purchased the same and subsequently the plaintiff purchased the said 11½ feet and 57 feet retained by the said Rahamath Bee under the Sale Deed dated 31.03.1990 and that he was put in possession of the property purchased by him on the said date.
4. It is the further case of the plaintiff that he let out the property purchased by him to tenants and after the 6 tenants vacated the premises, he brought some materials to effect repairs in the suit property. The defendant objected and stated that he has no right to do so. That since there was some dispute regarding boundaries, to avoid confrontation, he made an application to ADLR, Ballari for fixing the boundaries and defendant filed objections on the proceedings.
5. It is the further case of the plaintiff that certain mistakes were noticed and he requested his vendor to rectify the same by way of a Rectification Deed. That though the vendor agreed to rectify the same, at the instance of the defendant and her husband, the said rectification deed was not registered by the Sub-Registrar. It is further contended that the plaintiff thereafter approached the Hon'ble High Court, consequent to which the Rectification Deed was registered.
6. It is the further case of the plaintiff that in the year 1997, the defendant took advantage of the absence of 7 the plaintiff and illegally entered into possession of the suit property and since then he has been in possession of the suit property. That the proceedings under Section 145 of Code of Criminal Procedure were initiated against the defendant and himself, which was quashed by the District Judge.
7. It is further averred in that in the year 1998, the plaintiff filed a suit for injunction against the defendant and the same was dismissed by the Trial Court and during the pendency of the regular appeal, the plaintiff got the same withdrawn and filed the present suit for declaration and possession.
8. The defendant entered appearance in the suit and contested the case of the plaintiff and filed written statement denying the case of the plaintiff. It is the contention of the defendant that she has purchased the property in her possession as also the property alleged to have been purchased by the plaintiff right and has been in 8 possession from 1969 till the date of the suit. The defendant has denied that she took forcible possession as averred by the plaintiff. It is further contended that the suit is bad for non-joinder of parties.
9. It is the specific case of the defendant that she purchased the entire property including the suit property and that she continues to be in possession and that her vendor played fraud at the time of execution of the Sale Deed. Hence, it is contended that the Sale Deed of the plaintiff is void and cannot be enforced.
10. The Trial Court, consequent to the pleadings of the parties, framed the following issues and additional issues:
"1. Whether the plaintiff proves that he is the absolute owner of the suit schedule property?
2. Whether the plaintiff proves that the defendant around the end of year 1997, has illegally entered into possession of suit schedule property?9
3. Whether the plaintiff is entitled for the mesne profit?
4. Whether plaintiff is entitled for the relief sought for in the plaint?
5. What order or decree?
Addl. Issue No.1 Whether the defendant proves that she is in possession and enjoyment of schedule property since 22.8.69 to 1997 without any bodies interference?
Addl.Issue framed on 7.3.2002"
1) Whether defendant proves that the suit is bad for non-joinder of necessary parties?"
11. The PA holder of the plaintiff is examined as PW.1. Exs.P.1 to P.13 have been marked in evidence. The PA holder of the defendant is examined as DW.1. Three witnesses have been examined as DW.2 to DW.4. However, the defendants No.2 and 3 did not appear for cross- examination. Exs.D.1 to D.52 have been marked in evidence.
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12. The Trial Court by its judgment and decree dated 21.01.2004, decreed the suit and passed the following order:
"The suit of the plaintiff is hereby decreed with costs.
It is held that the plaintiff is the absolute owner of the suit property.
The defendant is hereby directed to vacate and hand over the vacant possession of schedule property to the plaintiff within one month from the date of judgment and decree.
As far as mesne profit is concerned, the plaintiff is at liberty to initiate separate proceedings for its determination.
Draw decree accordingly."
13. Being aggrieved, the defendant preferred R.A.No.21/2004. The plaintiff entered appearance before the First Appellate Court and contested the same. The First Appellate Court framed the following points for consideration:
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"1.Whether plaintiff-respondent proves that, he is the owner of the suit property?
2. Whether defendant-appellant proves that, he has got possessory title over the suit property and under the sale deeds executed by vendor's vendor of the plaintiff, plaintiff will not get any title?
3. Whether the trial court has committed any error apparent on the face of records and interference by this court in judgment and decree passed by trial court is necessary?
4. What order?"
14. The First Appellate Court by its judgment and decree dated 24.07.2007, dismissed the appeal filed by the defendant and confirmed the judgment and decree passed by the Trial Court. Being aggrieved, the present second appeal is filed.
15. This Court vide order dated 25.07.2012, admitted the above appeal and framed the following substantial question of law:
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"Whether the suit is barred under Order 2 Rule 2 of the CPC, having regard to the judgment and decree in O.S.No.9/1998 dated 2.11.1999"
16. Along with the above appeal, the appellant has filed I.A.No.1/2012 under Order XLI Rule 27 of the CPC seeking to produce certified copies of pleadings, depositions of PW.1 to PW.3 and judgment and decree passed in O.S.No.9/1998. In the affidavit filed in support of the said application, the deceased appellant has deposed that the respondent/plaintiff had filed O.S.No.9/1998 for injunction which suit was dismissed on 02.11.1999 and R.A.No.102/1999 filed by the respondent was dismissed as not pressed. Hence, it is contended that the present suit filed by the respondent is not maintainable in view of Order II Rule 2 of the CPC. That ignoring the same, both the Courts have decreed the suit of the respondent. It is further deposed that the deponent is an illiterate person and was not aware of the fact that the pleadings in O.S.No.9/1998 was required to be produced and hence the same could not be produced as an additional evidence before the Court. It is 13 further deposed that despite due diligence, as she had the disability of illiteracy, the documents could not be produced. That if the appellant is not permitted to produce the documents, they will be put to great hardship.
17. The respondent has filed objections to the said application, wherein it is contended that the GPA holder of the appellant was examined before the Trial Court on the ground that the appellant was unwell and there was no impediment for production of the documents before the Trial Court. It is further contended that since there was no due diligence, the application is required to be dismissed.
18. The original appellant/defendant died during pendency of the present appeal and her legal representatives have come on record and are prosecuting the appeal.
19. Learned counsel, Smt.V.Vidya Iyer appearing for the appellants/defendants contends that the Order XLI Rule 27 of the CPC entitles the Court to allow the application if 14 substantial cause is demonstrated. It is further contended that the documents produced are certified copies of the earlier round of litigation between the parties. That the appellant being an illiterate litigant, despite due diligence, the said documents could not be produced before the Trial Court. That the pleading in the earlier suit and in the subsequent suit are the same and hence the present suit filed by the appellant is clearly barred under Order II Rule 2(3) of the CPC.
20. It is further contended that the respondent/plaintiff having averred in the plaint regarding the earlier round of litigation, the said documents sought to be produced vide the applicantation does not take the respondent/plaintiff by surprise. Hence, she seeks for allowing of the application as well as the appeal. In support of her contention, she relies on the following judgments:
i. Union of India vs. K.V. Lakshman and Others5 5 (2016) 13 SCC 124 15 ii. Sanjay Kumar Singh vs. State of Jharkhand6
21. Per contra, learned counsel, Smt.Pallavi Pachhapure appearing for the respondent/plaintiff opposing the application as well as the appeal contends that there was no plea in the written statement or in the amended written statement and hence no issue is framed by the Trial Court regarding the suit being barred under Order II Rule 2 of the CPC. It is further contended that the same advocate conducted the proceedings in the earlier suit as well as the subsequent suit and hence it cannot be stated that the appellant did not have knowledge. It is further contended that without a plea, there is no question of the application being allowed and the appellant being permitted to produce additional evidence. That in the event of a plea having been raised, it was open for the defendant to demonstrate that the cause of action of the two suits was not the same. Hence, the appellant cannot be permitted to urge the said 6 (2022) 7 SCC 247 16 ground that the suit is barred under Order II Rule 2 of the CPC at the present stage of second appeal and that the application filed by the appellant under Order XLI Rule 27 of the CPC as well as the appeal is required to be dismissed. In support of her contentions, she relies on the following judgments:
i. Gurbux Singh vs. Bhooralal7 ii. M/s. Bengal Waterproof Limited vs. M/s Bombay Waterproof Manufacturing Company8 iii. Bachhaj Nahar vs. Nilima Mandal and Another9
22. The submissions made by both the learned counsels have been considered and the material on record has been perused.
23. Having regard to the substantial question of law framed by this Court, the only aspect that is required to be 7 AIR 1964 SC 1810 8 AIR 1997 SC 1398 17 considered is as to whether the suit filed by the respondent/plaintiff from which the present second appeal arises is barred under Order II Rule 2 of the CPC. In order to consider the same, it is relevant to first notice Order II Rule 2 of the CPC which reads as follows:
"2. Suit to include the whole claim.--(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish and portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.--Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.--A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation.--For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
(emphasis supplied) 9 2008 (17) SCC 491 18
24. It is clear from the above provision that only if the cause of action in the earlier suit and the subsequent suit are one and the same, it can be held that subsequent suit is barred under Order II Rule 2 of the CPC.
25. Admittedly, in the present case, the defendant has not raised the plea in the written statement or in the additional written statement that the suit is barred under Order II Rule 2 of the CPC and admittedly, there is no issue framed in that regard. It is further relevant to note that the respondent/plaintiff has specifically averred in the plaint that the earlier suit in O.S.No.9/1998 for injunction was filed by him which was dismissed and the appeal filed in R.A.No.102/1999 against the same was dismissed as not pressed.
26. It is also relevant to note that the appellant/defendant has not raised the ground that the subsequent suit is barred under Order II Rule 2 of the CPC even before the First Appellate Court. Hence, it is clear that 19 the present ground that the subsequent suit filed by the respondent/plaintiff is barred under Order II Rule 2 of the CPC is being raised for the first time in the present second appeal and for the purpose of considering the said ground/contention, the appellants rely upon the documents produced along with the application.
27. In support of the contention that in the absence of a plea the contention that the suit is barred under Order II Rule 2 of the CPC cannot be taken, the learned counsel for the respondent/plaintiff relies on the Constitution Bench judgment of the Hon'ble Supreme Court in the case of Gurbux Singh6, wherein it has been held as follows:
"6. In order that a plea of a bar under O. 2 R. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the 20 cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under O. 2 R. 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in C. S. 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under O. 2 R. 2, Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the sage of the appeal the learned District Judge noticed this lacuna in the appellant's case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on the record, a plea of a bar under O. 2 R. 2, Civil Procedure Code was not maintainable."
(emphasis supplied)
28. Learned counsel for the respondent/plaintiff further relies on the judgment of the Hon'ble Supreme Court in the case of Bengal Waterproof Limited7, wherein, upon noticing the judgment of the Constitution Bench of the 21 Hon'ble Supreme Court in the case of Gurbux Singh6 it has been held as follows:
"6. ..................... Thus there is a complete bar against the defendants from raising the bar of O. 2, R. 2 sub- rule (3) against the plaintiff in the present case. In this connection, we may refer to one submission made by the learned counsel for the defendants which appealed to the learned single Judge of the High Court. He submitted that the averments in the plaintiff were that the first suit was misconceived and proper relief was not prayed for. Therefore, it can be inferred that the second suit was hit by the bar of O.2, R.2, sub-rule (3), C.P.C. and he further submitted that at lot the counter filed in reply to Special Leave Petition the defendants have produced the copy of the plaint in the first suit. We fail to appreciate how this effort on the part of the defendants can of any avail to them. Firstly, the Constitution Bench of this court in Gurbux Singh's case (AIR 1964 SC 1810) (supra) has clearly, ruled that there cannot be any inference about the bar of O.2, R. 2. Sub-rule (3) was not available to the defendants in the suit in the absence of the pleadings in the earlier suit being brought on the record by them in support of their case before the Trial Court they had missed the bus especially when even before the High Court no attempt was made by the defendents to produce the pleadings in the earlier suit by way of an application for additional evidence. Therefore, it is too late in the day of the defendants to contend that along with counter in the Special Leave Petition before us they had produced the copy of the plaint in the earlier suit. In the light of the clear pronouncement of the Constitution Bench in the case of Gurbux Singh (AIR 1964 SC 1810) (sunra), it must be held that it was not open to the defendants to raise the contention of the bar of O. 2. R. 2. sub-rule (3) C.P.C. in the present case and, therefore, the learned single Judge of the 22 High Court was clearly in error in non-suiting the plaintiff on that ground."
(emphasis supplied)
29. It is clear from the aforementioned that in the absence of a plea taken in the written statement, the appellants cannot be permitted to raise the contention that the subsequent suit filed by the respondent is barred under Order II Rule 2 of the CPC.
30. Learned counsel for the appellants referring to the judgment of the Hon'ble Supreme Court in Bengal Waterproof Limited7, wherein an observation is made that no attempt was made to produce the pleadings of the earlier suit by way of an application for additional evidence, contends that having regard to the fact that under Order XLI Rule 27 of the CPC, the Court is entitled to permit production of additional evidence if 'substantial cause' is made out and submits that the defendant being an illiterate, the same tantamounts to the substantial cause and hence the I.A.No.1/2012 is required to be allowed. 23
31. In order to consider the said contention, it is relevant to notice Order XLI Rule 27 of the CPC which reads as follows:
"Rule 27. Production of additional evidence 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 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 of due diligence, be produced by him at the time when the decree appealed against was passed, or
(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. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
(emphasis supplied)
32. The Hon'ble Supreme Court in the case of Union of India4 relied upon by the learned counsel for the appellants, has held as follows:
"7) The Trial Court vide judgment/decree dated 11.12.2001 dismissed the suit on two grounds. It was held that the suit is barred by limitation. It was further 24 held that the plaintiff (the appellant) failed to prove their title over the suit land for want of adequate evidence whereas the defendants (respondents) were able to prove their title over the suit land.
8) The appellant, felt aggrieved, filed first appeal before the High Court. In the appeal, the appellant filed an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code") and sought permission to adduce additional evidence in support of their case. The additional evidence inter alia consisted of documents issued by the State Land Revenue department in relation to the suit land. According to the appellant, these documents were relevant and material for deciding the ownership issue and if properly examined along with the documents already filed in the suit, would establish the appellant's title over the suit land to the exclusion of every one including the respondents. It was further alleged that the appellant was not able to file these documents in the Trial Court because firstly, these documents were old; Secondly, the appellants came to know of these documents after the decision was rendered in the civil suit; and lastly, since the documents were traced recently with great difficulty and being in the nature of public documents, the appellant be allowed to file them so as to enable the Court to properly decide the issue of ownership in relation to the suit land.
32. This takes us to the next question in relation to the application filed under Order 41 Rule 27 of the Code. In our considered view, the High Court committed another error when it rejected the application filed by the appellant under Order 41 Rule 27 of the Code. This application, in our opinion, should have been allowed for more than one reason.
33. First, there was no one to oppose the application. In other words, the respondents were neither served with the notice of appeal and nor served with the application and hence they did not oppose the 25 application. Second, the appellant averred in the application as to why they could not file the additional evidence earlier in civil suit and why there was delay on their part in filing such evidence at the appellate stage. Third, the averments in the application were supported with an affidavit, which remained un- rebutted. Fourth, the application also contained necessary averment as to why the additional evidence was necessary to decide the real controversy involved in appeal. Fifth, the additional evidence being in the nature of public documents and pertained to suit land, the same should have been taken on record and lastly, the appellant being the Union of India was entitled to legitimately claim more indulgence in such procedural matters due to their peculiar set up and way of working.
34. It was for all these reasons, we are of the view that the application filed by the appellant under Order 41 Rule 27 of the Code deserved to be allowed and is accordingly allowed by permitting the appellant to file additional evidence.
35. The learned counsel for the respondents, however, contended that the additional evidence is not relevant for deciding the appeal/suit. He also urged that the appellant has not pleaded any cause as required under Order 41 Rule 27 to file such evidence at the appellate stage. We are not impressed by this submission in the light of the reasons given supra. This submission is accordingly rejected.
36. Order 41 Rule 27of the Code is a provision which enables the party to file additional evidence at the first and second appellate stage. If the party to appeal is able to satisfy the appellate court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject-matter of the lis, the court should allow the party to file such additional evidence. After all, the court has to do substantial justice to the parties. Merely because the court allowed one party to file additional evidence in appeal would not by itself 26 that the court has also decided the entire case in its favour and accepted such evidence. Indeed once the additional evidence is allowed to be taken on record, the appellate court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal."
(emphasis supplied)
33. The Hon'ble Supreme Court in the case of Sanjay Kumar Singh5 relied upon by the learned counsel for the appellant, has held as follows:
"7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of light, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the Circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the b appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.
8. As observed and held by this Court A.in A. Andisamy Chettiar v. A. Subburaj Chettiar, the 27 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. It is further observed that 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."
(emphasis supplied)
34. Opposing, consideration of the application, learned counsel for the respondent/plaintiff relies on the judgment of the Hon'ble Supreme Court in the case of Bachhaj Nahar8, wherein it has been held as follows:
"8. The High Court, in this case, in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure. The rules breached are:
(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court.28
(ii) A Court cannot make out a case not pleaded. The court should confine its decision to the question raised in pleadings. Nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint.
(iii) A factual issue cannot be raised or considered for the first time in a second appeal.
Civil Procedure Code is an elaborate codification of the principles of natural justice to be applied to civil litigation. The provisions are so elaborate that many time, fulfillment of the procedural requirements of the Code may itself contribute to delay. But any anxiety to cut the delay or further litigation, should not be a ground to float the settled fundamental rules of civil procedure."
(emphasis supplied)
35. Having regard to the settled position of law as noticed above as well as the factual matrix of the matter, it is clear that the plaintiff has averred regarding the earlier suit for injunction filed by him in the plaint. It is further clear that the defendant has not raised a plea either in the written statement or in the amended written statement nor has a 29 ground been urged before the First Appellate Court that the suit filed by the plaintiff is barred under Order II Rule 2 of the CPC, since the cause of action of the earlier suit for injunction and the present suit for declaration and possession are one and the same.
36. Although it is the vehement contention of the learned counsel for the appellants that the cause of action of the earlier suit and the subsequent suit is one and the same, which is clearly evident from the plaint and other material of O.S.No.9/1998 which is sought to be produced along with I.A.No.1/2012, a plea that a subsequent suit is barred under Order II Rule 2 is a question of fact that is required to be considered after noticing the pleadings in the earlier suit and the subsequent suit. The said question of fact can be adjudicated upon only after affording an opportunity to both the parties to adduce their evidence regarding the same and to cross-examine the other party with regard to the said aspect of the matter.
30
37. In the present case, the fact that the appellants/defendant has not raised a plea that a subsequent suit is barred under Order II Rule 2 is detrimental to the case of the appellants. The endeavor of the appellants to raise the said plea by producing the pleadings and other documents pertaining to the earlier suit by filing an application under Order XLI Rule 27 of the CPC is not liable to be considered having regard to the judgment of the Hon'ble Supreme Court in the case of Bachhaj Nahar8 wherein it has been held that no evidence can be looked into in the absence of a plea. Hence, in the absence of the defendant taking a plea that the subsequent suit is barred under Order II Rule 2 of the CPC, the question of favourably considering I.A.No.1/2012 does not arise.
38. The vehement contention of the learned counsel for the appellants by placing reliance on the observation made by the Hon'ble Supreme Court in the case of Bengal Waterproof Limited7 with regard to an attempt being made by filing an application for additional evidence, will not 31 aid the case of the appellants having regard to the fact that a plea of a subsequent suit being barred under Order II Rule 2 of the CPC is a factual one and it is always open to the plaintiff who institutes the subsequent suit to demonstrate that the subsequent suit is not founded on the same cause of action. Denying the plaintiff such an opportunity would be contrary to the law.
39. It is further relevant to note the plea that the suit is barred Under Order II Rule 2 of the CPC is being raised for the first time in the present second appeal and hence the same cannot be considered.
40. Although the Court is vested with wide powers to permit production of additional evidence, having regard to the scope of Order XLI Rule 27 of the CPC, in view the admitted position in the present case that no plea has been raised, the question of favourably considering I.A.No.1/2012 does not arise. Further, it is relevant to note that the defendant was represented by her husband as the PA holder 32 who has adduced evidence in the suit. The affidavit accompanying the application merely states that the defendant is an illiterate. There are no reasons set out as to why the husband of the defendant who had represented the defendant before the trial Court did not take the requisite plea regarding the suit being barred under Order II Rule 2 of the CPC has not been stated.
41. Further, as rightly pointed out by the learned counsel for the respondent/plaintiff, the counsel who represented the present appellant/defendant in the earlier suit in O.S.No.9/1998 as well as in the present suit in O.S.No.370/2001 are the same. Hence, the contention of the appellants that due to she being an illiterate litigant, the documents could not be produced either before the Trial Court or the First Appellate Court, cannot be accepted.
42. In view of the discussions made above, I.A.No.1/2012 is liable to be dismissed and the substantial 33 question of law framed by this Court is answered in the negative.
Hence, the following:
ORDER i. I.A.No.1/2012 filed by the appellant under Order XLI Rule 27 of the CPC is dismissed;
ii. The above appeal is dismissed;
iii. The judgment and decree dated
24.07.2007 passed in R.A.No.21/2004 by the Principal Civil Judge(Sr.Dn.) and CJM, Bellary is affirmed;
iv. The judgment and decree dated 21.01.2004 passed in O.S.No.370/2001 by the II Additional Civil Judge (Jr.Dn.), Bellary is affirmed.
Sd/-
JUDGE PMP/ BS