HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 70/2018
1. Roopsingh S/o Prabhudayal Deceased
1/1. Smt. Rasal Gaur W/o Late Roopsingh Gaur,
1/2.Yogesh Gaur S/o Late Roop Singh Gaur,
1/3.Rajesh Gaur S/o Late Roop Singh Gaur.,
All R/o Malakheda, District Alwar Raj
2. Mansingh S/o Prabhu Singh, R/o Village Malakheda,
Tehsile And District Alwar Rajasthan
3. Hari Singh S/o Prabhu Singh, R/o Village Malakheda,
Tehsile And District Alwar Rajasthan
----Appellant-Plaintiffs
Versus
1. Raghunath S/o Heera Lal R/o Village Lili, Sub Tehsile
Malakheda, District Alwar, Rajasthan Deceased through
LRs.
1/1. Smt. Phooli Devi W/o Late Ragunath,
1/2.Ramhat S/o Late Ragunath, R/o Village Lili, Tehsil
Malakheda District Alwar Rajasthan
1/3. Ratan S/o Late Ragunath,
1/4.Brijendra S/o Late Ragunath, R/o Village Lili, Tehsil
Malakheda District Alwar Rajasthan
1/5. Mam Chand S/o Late Ragunath,
All 1/1 to 1/5 R/o Village Lili, Tehsil Malakheda District
Alwar Rajasthan
1/6. Smt. Sugana D/o Late Ragunath W/o Nadan, R/o
Sarhana Tehsil Kumher District Bharatpur Rajasthan.
2. Smt. Suman Bai W/o Inder Singh Dhirawat D/o Roop
Singh, Gaur, R/o Roop Singh Gaur R/o Opposite Of Smrat
Cinema Hall, Kayaklp Hospital Sunrise Road, Siker,
District Sikar Raj.
----Respondent-Defendants
For Appellant(s) : Mr. Mohit Gupta
For Respondent(s) :
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
REPORTABLE:-
26/07/2022
(Downloaded on 29/07/2022 at 09:46:08 PM)
(2 of 9) [CSA-70/2018]
1. The appellant-plaintiffs (hereafter referred to "Plaintiffs") have preferred this second appeal under Section 100 of CPC assailing the judgment and decree dated 11.12.2017 passed in civil first appeal No.143/2006 by the Court of Additional District Judge No.1, Alwar, affirming the judgment and decree dated 13.10.2006 passed in civil suit No.19/04 by the Court of Additional Civil Judge (Jr. Division) and Judicial Magistrate No.4, Alwar whereby and whereunder the appellant-plaintiffs' suit for specific performance has been dismissed on merits.
2. Heard learned counsel for appellants and perused the impugned judgments and record.
3. Learned counsel for appellants has raised arguments that before the first appellate court an application under order 41 Rule 27 CPC was filed by appellants on 30.04.2015, but the first appellate court has neither considered nor decided the said application while dismissing the first appeal vide impugned judgment dated 11.12.2017. Counsel has argued that it was the duty of the first appellate court to consider and decide the application under Order 41 Rule 27 CPC filed by appellants before or at the time of deciding the first appeal finally.
4. Reliance has been placed upon the judgment of Hon'ble the Supreme Court in Hakam Singh Vs. State of Haryana & Ors.A[IR (2008) SC 2990], Jitender Singh and Anr minor through Mother Vs. Mehar Singh & Ors. [AIR 2009 SC 354] and the judgment of Rajasthan High Court Kishanlal & Ors. Vs. Ramchandra & Ors. [AIR 2020 (Raj) 145].
5. This is a case where the appellants instituted a civil suit for specific performance on 01.06.2002, on the basis of an (Downloaded on 29/07/2022 at 09:46:08 PM) (3 of 9) [CSA-70/2018] agreement to sell dated 08.07.1991. The case pleaded by appellants in the plaint is that respondent-defendant-Raghunath agreed to sell his 1/12th share in agricultural land of Khasra No.802 measuring 6 bigha 9 biswa against total sale consideration of Rs.15,000/-, and after receiving full sale amount, he executed the agreement on 08.07.1991 on a stamp paper of Rs.5/-. A separate receipt for sale amount Rs.15,000/- was also said to be executed and handed over.
6. It was contended that the possession of 1/12th share was delivered to plaintiffs with assurance that as and when plaintiffs would like to get sale deed executed, the same will be executed. Plaintiffs for the first time issued notice on 22.05.2002 for getting sale deed registered, and thereafter filed the present suit on 01.06.2002.
7. Respondent-defendants (hereafter referred to "defendants") filed written statement on 29.08.2002 and categorically denied for execution of agreement dated 08.07.1991, as well as any receipt of sale amount of Rs.15,000/-, and also denied for delivery of possession of his 1/12th share to plaintiffs. The agreement in question and receipt were alleged to be fake documents. Further defendant alleged that the suit is beyond limitation and is liable to be dismissed.
8. The trial court after hearing of rival parties framed issues and recorded evidence of both parties.
The trial court observed that plaintiffs could not prove the execution of agreement as well as the factum of delivering of possession. The statement of plaintiffs and their witnesses regarding delivery of possession was found contradictory. It was also observed (Downloaded on 29/07/2022 at 09:46:08 PM) (4 of 9) [CSA-70/2018] that the agreement is non-specific, having no details, and further that the suit has been filed after a delay of 11 years. Thus, finally the trial court dismissed plaintiff's suit on merit vide judgment dated 13.10.2006.
It was noticed by the trial court that plaintiffs referred about one revenue suit filed by defendant before SDO Court for declaration and permanent injunction. The resort was taken in order to patch up the period of limitation, however such stand was not accepted by the trial court.
9. Plaintiffs preferred the first appeal against the judgment and decree dated 13.10.2006. Before the first appellate court, during pendency of appeal plaintiffs sought to produce his written statement dated 04.11.2003 and the final order of dismissal of suit dated 22.03.2006, relating to the revenue suit for declaration and permanent injunction instituted by defendants before the SDO Court on 18.05.2002; regarding which reference was given by the plaintiffs before the trial court also.
10. It appears from the order sheets and record of the first appellate court that plaintiffs though moved application under Order 41 Rule 27 CPC on 30.04.2015, but thereafter till hearing of the first appeal on merits on 08.12.2017 and passing the judgment on 11.12.2017 never pressed and pursued his application. There is nothing on record to show that plaintiffs had ever pressed or pursued application under Order 41 Rule 27 CPC requesting to the first appellate court to consider the additional documents. It is apparent that in absence of pursuation by appellants on the application under Order 41 Rule 27 CPC, the first appellate court did not advert to the application and not considered additional documents sought to be produced alongwith the application and finally dismissed the first appeal, without passing any order on the application under Order 41 Rule 27 CPC.
(Downloaded on 29/07/2022 at 09:46:08 PM)
(5 of 9) [CSA-70/2018]
11. Never the less, this Court, in order to appreciate arguments of plaintiffs that application under Order 41 Rule 27 CPC has not been decided and the additional document sought to be produced before the first appellate court having not been considered, have gone through contents of application and to the additional documents sought to be produced. By way of application, plaintiffs sought to produce their written statement dated 04.11.2003, submitted in the revenue suit for declaration and permanent injunction filed by defendants before the S.D.O. Court on 18.05.2002, and one order sheet dated 22.03.2006, whereby and whereunder this revenue suit was dismissed in default and for non-prosecution. Counsel for appellant-plaintiffs has argued that their additional documents are being produced, only for the purpose of explaining delay in filing the suit for specific performance and to show the accrual of cause of action. As per record, the plaintiffs had instituted the present suit for specific performance on 01.06.2002, therefore subsequent dismissal of revenue suit of respondent on 22.03.2006, due to non-prosecution and in default does not improve the case of limitation for plaintiffs.
12. That apart, this Court has also noticed that it is not the case of the appellants that counsel for appellants made his arguments on the application under Order 41 Rule 27 CPC at the time of making his arguments on the first appeal or he drew attention of the first appellate court to advert on his application under Order 41 Rule 27 CPC. Even in the memorandum of the present second appeal or otherwise, there is nothing on record to show that appellant-plaintiffs did ever argued or pressed their application under Order 41 Rule 27 CPC before the first appellate court after filing the same on 30.04.2015. Had the appellants would have argued and pressed their application under Order 41 Rule 27 CPC before the first appellate court and if the same was left unconsidered while disposing of the first appeal finally, it was opened (Downloaded on 29/07/2022 at 09:46:08 PM) (6 of 9) [CSA-70/2018] for the appellants to move an application for review before the first appellate court itself asking to pass order on the pending application under Order 41 Rule 27 CPC. In absence of any such material, there is sufficient reason before this Court to draw an inference that from the side of appellant-plaintiffs themselves, they never pursued their application under Order 41 Rule 27 CPC after filing the same. In such facts and circumstances, it is not permissible to appellants to contend at the stage of second appeal that because the first appellate court has left the application under Order 41 Rule 27 CPC undecided, therefore the matter be remanded back to the first appellate court on this count alone.
13. As far as judgments of the Hon'ble Supreme Court and co- ordinate bench of Rajasthan High Court relied upon by learned counsel for appellant-plaintiffs referred hereinabove are concerned, the principle of law enunciated in the aforesaid judgments is that it is the duty of the first appellate court to deal with the application under Order 41 Rule 27 CPC on merits before or at the time of deciding the first appeal finally. There is no disagreement nor there can be any other dissent opinion to the aforesaid proposition of law expounded by the Hon'ble Supreme Court. However, this proposition of law does not absolve the party concerned, from its first duty to argue and press their application under Order 41 Rule 27 CPC, inviting the attention of the first appellate court to consider and decide their application for production of additional evidence. When the party himself is careless and negligent and further neither serious nor press his application before the first appellate court, at the later stage and before the higher forum of appeal, he cannot be allowed to take an advantage or resort to the aforesaid proposition of law. Thus, in the given facts and circumstances of case and considering the conduct of appellant- (Downloaded on 29/07/2022 at 09:46:08 PM)
(7 of 9) [CSA-70/2018] plaintiffs themselves before the first appellate court, the judgments relied upon by learned counsel for appellants are of no help to them.
14. At this Juncture, this Court is not oblivious about proposition of law regarding production of additional evidence at the appellate stage. The provision of Order 41 Rule 27 CPC enable the appellate court to take additional evidence, in exceptional circumstances. The law is well settled that appellate court may permit additional evidence, if conditions laid down under the provision of Order 41 Rule 27 CPC are found satisfied, or even if production of additional evidence is considered as helpful for the appellate court to decide the appeal effectively and judiciously if additional evidence is admissible and relevant to germane issues involved in the appeal, certainly it is well within jurisdiction of the appellate court to consider that additional evidence within parameter of law to advance justice to the parties.
In support of this proposition of law, reference can be made to judgments of Hon'ble the Supreme Court in case of A. Andisamy Chettiar Vs. A. Subburaj Chettiar [(2015) 17 SCC 713], Wadi Vs. Amilal & Ors. [(2015)1 SCC 677] and the recent judgment delivered in case of Sanjay Kumar Singh Vs. The State of Jharkhand [2022 Live Law (SC) 268].
15. As far as, merits of the second appeal are concerned, there are concurrent findings of fact against plaintiffs where the agreement in question dated 08.07.1991 has not been found proved. There is no reliable evidence from the side of appellants to show payment of sale consideration of Rs.15,000/- and delivery of possession of 1/12th share by defendants. The delay and latches on the part of appellants in filing the suit is apparent and have remained unexplained. Even if additional documents sought to be produced are considered, then also the same are of no relevance to explain the delay of 11 years in filing the suit for specific performance.
(Downloaded on 29/07/2022 at 09:46:08 PM)
(8 of 9) [CSA-70/2018]
16. For the aforesaid discussion, this Court is of the considered opinion that in given facts, no substantial question of law involved in the present second appeal, findings of fact regarding non-prove of agreement, non-payment of sale amount and non-delivery of possession as well as delay and latches are based on due appreciation of evidence on record. Learned counsel for appellants could not point out any perversity in such fact findings nor make out any substantial question of law in respect of the judgment and decree passed by courts below.
17. The Hon'ble Supreme Court in C.Doddanarayana Reddy Vs. C.Jayarama Reddy [(2020) 4 SCC 659], while discussing the jurisdiction of the High Court to interfere with the finding of fact under Section 100 CPC has held that though the High Court could have taken different view acting as the trial Court but once, two Courts below have returned finding which is not based upon any misreading of material documents, nor against any provision of law neither could it be said that any judge acting judicially and reasonably could have reach such a findings, then, the Court cannot be said to have erred. Relying upon the previous judgment the Supreme Court has held as under:-
"Recently in another judgment reported as State of Rajasthan v. Shiv Dayal [(2019)8 SCC 637], it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under: "16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially (Downloaded on 29/07/2022 at 09:46:08 PM) (9 of 9) [CSA-70/2018] could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."
18. The upshot of discussions made hereinabove is that the second appeal is devoid of merits; and the same is hereby dismissed.
19. No order as to cost.
20. Record be sent back forthwith.
21. Stay application and any other pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J TN/95 (Downloaded on 29/07/2022 at 09:46:08 PM) Powered by TCPDF (www.tcpdf.org)