Pudi Govinda Rao vs Pudi Simmanna
2024 Latest Caselaw 14 AP

Andhra Pradesh High Court - Amravati

Pudi Govinda Rao vs Pudi Simmanna on 2 January, 2024

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

              SECOND APPEAL No.1453 of 2005

JUDGMENT:

1. This appeal under section 100 CPC from the defendants

in the suit has arisen in the following circumstances:

2. Out of a large extent of land in survey No.65 belonging to

the Government, the lease pattas were granted to various

individuals. For late Sri Ramanna there are three sons. One son

by name Sri P. Simanna filed O.S.No.77 of 2000 as against his

two brothers arraying as defendant Nos.1 and 2 and another

individual as defendant No.3. The suit was filed for permanent

injunction. The allegations are that the Government had

granted lease patta in an extent of Ac.1.25 cents or Ac.1.20

cents in favour of the plaintiff in the year 1978 and since then

the plaintiff has been in possession and enjoyment of it.

However, as the defendants without any manner of right have

been disturbing the possession, that necessitated him to sue

them for perpetual injunction.

3. Defendant No.2 filed a written statement and the

remaining defendants filed a memo adopting it. Their pleaded

case is that in the same survey number of Boddam Village in

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the same year, namely 1978, the defendant No.2 was given

Ac.1.25 cents of land under a patta and the plaintiff is trying to

dispossess them by this unlawful litigation. Learned Junior Civil

Judge, Narasannapeta before whom the suit was filed settled

the following issues for trial:

1. Whether the plaintiff is entitled for the relief of permanent

injunction?

2. If so, what relief?

4. Plaintiff testified as PW.1 and got examined another

individual as PW.2. During his evidence, he produced Exs.A1 to

A3. He failed to produce the patta that was allegedly given to

him. On behalf of defendants, defendant No.2 testified as DW.1

and he got exhibited Exs.B1 and B2. Ex.B1 was a patta granted

by the Government in his favour. After considering the oral and

documentary evidence, the learned trial court found fault with

the inaccurate oral evidence on part of both sides and it was

recorded that PW.2 did not have any knowledge about the suit

and its dispute. Since plaintiff failed to produce his patta and

since it found certain discrepancies in Exs.A2, A3 - land

revenue receipts, it refused to grant perpetual injunction in

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favour of the plaintiff. It recorded a clear finding that the

plaintiff filed to prove his possession over the plaint schedule

property. While referring to Ex.B1 - patta produced by

defendant No.2 as DW.1, it commented that the survey number

mentioned therein is different from the survey number

mentioned in the plaint schedule. It stated that both sides failed

to examine any revenue authorities in proof of their respective

cases concerning pattas. Finally, it dismissed the suit by a

judgment dated 31.01.2003.

5. Aggrieved by it, the sole plaintiff preferred A.S.No.23 of

2003. Learned II Additional District Judge, Srikakulam, heard

the arguments of learned counsel on both sides and afresh

considered the oral and documentary evidence. Certain aspects

and 4 of its judgment have become the cause of concern in this

appeal. Learned II Additional District Judge made the following

observations and they are extracted here:

"During the appeal appellant/ plaintiff got examined the revenue authorities to produce the original lease patta register and 10(1) adangals. The true copy extract of the lease patta register was marked as Ex.A4, certified copy of No.2 adangal

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extract was marked as Ex.A5 and No.(3) adangal pahani was marked as Ex.A6."

6. Then the learned first appellate court went on to consider

Exs.A4, A5 and A6. Ex.A4 is the patta of the plaintiff. Exs.A5

and A6 are certified copies of Adangals in favour of the plaintiff

showing his possession over the property. It extensively relied

on Ex.A5 and A6 and considered the total extent of land and

considered the possession thereby established on behalf of the

plaintiff/ appellant. Thereafter, it considered the admissions

made by DW.2 during his cross-examination and the oscillating

stands taken by the defendants and commented that

defendants were prone to cause harm to the plaintiff and they

indulged in this litigation. It finally disagreed with the

conclusions reached by the trial court. At page No.9 of its

judgment, the learned Additional District Judge observed that

even ignoring the new documents, in his opinion, the evidence

on record established the case of the plaintiff overwhelmingly.

Finally, it admitted the appeal and set aside the judgment of the

trial court and granted perpetual injunction in favour of the

plaintiff and against the defendants.

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7. Aggrieved by it, the three defendants are in appeal here.

The principal argument on both sides turned on the procedure

adopted by the learned first appellate court in receiving

additional evidence. On 24.11.2005, a learned Judge of this

court admitted the appeal on the following substantial questions

of law:

1. Whether in a suit for injunction, the plaintiff is not required to stand or fall on the strength of his own case instead of depending on the weaknesses of the defendants.

2. Whether the court should not dismiss the suit where the plaintiff in a suit for injunction is not able to establish his case as pleaded in the plaint and evidence led by him.

3. Whether the first appellate court could have admitted the documents by allowing the application for additional evidence contrary to the provisions for Order 41, Rule 27 CPC, more particularly when no grounds for invoking the said provision were made out.

8. Appearing for the appellants, Sri J.Prabhakar, the learned

counsel argued that the learned Additional District Judge while

hearing the first appeal failed to follow the mandatory principles

contained in Order XLI Rule 27 CPC and failed to grant

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opportunity to the defendants in the suit who are appellants

here to contest the truth or otherwise of Exs.A4, A5 and A6 and

thereby deprived them to contest on the fundamental point as to

who holds patta and who is in possession based on that patta.

Serious prejudice was caused to these appellants and the

principle of affording reasons to allow the application for

additional evidence are totally missing in the judgment and

learned counsel therefore prays the court to set aside the

impugned judgment and remand the appeal to the first

appellate court.

9. As against this, the learned counsel for respondent Sri A.

Ravi Sankhar earnestly argued that before the first appellate

court, plaintiff filed I.A.No.30 of 2005 under Order XVI Rule 7

read with Order XIII Rule 5(3) CPC and the learned first

appellate court properly received the documents and properly

took them for consideration as evidence and these appellants

never raised any objections in that regard and therefore they

cannot be permitted to raise objections during the course of

hearing of this second appeal. In this regard, learned counsel

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cited Lachhmi Narain Singh V. Sarjug Singh1. Learned

counsel submits that this court needs to see that in the last

parts of the judgment, the learned first appellate court also

recorded that irrespective of these documents taken as

additional evidence, the evidence on record indicated to the

mind of the first appellate court about possession of the plaintiff

over the plaint schedule properties and therefore no prejudice

could be said to have been caused to the appellants herein so as

to remand this case.

10. Having considered the submissions of learned counsel on

both sides, the following aspects are to be stated:

The above cited ruling in Lachmi Narain Singh is a case

where certified copy of a disputed registered revocation deed of a

will was filed before the trial court. Seeking its original, no

objections were raised by the other side. For the first time, the

objections were raised at the High court and Supreme Court. It

was in these circumstances, their Lordships had to reiterate the

law contained in para No.20 of R.V.E Venkatachala Gounder

(2022) 13 SCC 746

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V. Arulmigu Visweswaraswami and V.P Temple2. Since the

learned counsel for respondent heavily relied on the above

paragraph no.20, the same is extracted for benefit.

"In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby

(2003) 8 SCC 752

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removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence........(emphasis in original)"

11. At once it is clear that the principle is that the court while

receiving evidence must always keep in mind the rule of fair

play for both parties. An objection that was not taken while a

document was admitted during the course of trial before a trial

court, as to the mode of proof, an argument questioning the

correctness of it cannot be advanced at the appellate stage.

Thus, the said principle has no resemblance to the facts

available on record in this case. In the case at hand, Exs.A4, A5

and A6 on behalf of the plaintiffs were never produced at the

trial and they were produced for the first time during the

hearing of first appeal. One reason why the trial court dismissed

the suit of the plaintiff. It is undisputed that looking at the

nature of the pleadings and evidence on both sides, there has

been a serious contest regarding the issuance of pattas by the

Government. The entire judgment of the learned first appellate

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court turned on Exs.A4, A5 and A6. Whether the first appellate

court misconducted itself resulting in grave injustice or not is

the point that has fallen for consideration.

12. Production of evidence at the trail is a matter of right for

the parties. Production of evidence in the first appellate court or

subsequent thereto is not a matter of right. This position is

crystal clear in the opening parts of Order XLI Rule 27 CPC

which is extracted here:

Order XLI Rule 27 CPC: -

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

aa. the party seeking to produce additional evidence, establishes that not-withstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced

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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."

13. Two primary principles are to be noticed. There must be

an application for production of additional evidence and due

opportunity to raise a protest against it must be given to the

opposite party. The impugned judgment does not indicate

adherence to that principle. Order XLI rule 27(2) CPC itself

prescribed that the court which entertains such an application

shall record the reasons for allowing the application and

receiving the additional evidence. The impugned judgment does

not indicate the reasons which convinced the first appellate

court's judge to allow that application and receive additional

evidence. The impugned judgment employed the words at page

no.3 of its judgment that the plaintiff as appellant got examined

the revenue authorities before the appellate court. However as

admitted by both sides and as appendix of the evidence of the

first appellate court indicate that no further oral evidence was

adduced before the first appellate court. The appellate court

after taking a decision to allow additional evidence on behalf of

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one of the parties, it has to follow what is mandated in Order

XLI Rule 28 CPC about mode of taking additional evidence. The

impugned judgment failed to follow that law. In the last parts of

its judgment, the learned first appellate court recorded that

even without taking into consideration the additional evidence

in Ex.A4, A5 and A6, to its mind, the evidence overwhelmingly

proved the case of the plaintiff. If that be its view, there was no

need to take the additional evidence since the permission for

additional evidence could be liberally exercised only when the

first appellate court feels that to decide the dispute before it, it

require such additional evidence. If the material available on

record already furnished by parties is found to be sufficient that

disentitles a first appellate court to take additional evidence. A

Bench of the three Hon'ble Judge of the Hon'ble Supreme Court

of India in Land Acquisition Officer, City Improvement Trust

Board V. H.Narayanaiah3 laid down the law in this regard at

para no.28 which is extracted here:

"The Karnataka High Court had, however, not complied

with provisions of Order 41 Rule 27 of the CPC which require that

(1976) 4 SCC 9

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an appellate court should be satisfied that the additional

evidence is required to enable it either to pronounce judgment or

for any other substantial cause. It had recorded no reasons to

show that it had considered the requirements of Rule 27 Order 41

of the CPC. We are of opinion that the High Court should have

recorded its reasons to show why it found the admission of such

evidence to be necessary for some substantial reason. And if it

found it necessary to admit it, an opportunity should have been

given to the appellant to rebut any inference arising from its

existence by leading other evidence."

Consequently, their Lordships remanded the case for

fresh hearing.

14. In the light of what is stated above, the arguments of

learned counsel for respondent about Order XVI Rule 7, Order

XIII Rule 5(3) CPC have absolutely no relevance since they

pertain to trial before the trial court and not about production of

additional evidence in the first appellate court.

15. One of the contentions of the appellants is that plaintiff

has to stand or fall on the strength of his own case instead of

depending on the weakness of the defendants. There is no

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quarrel on this principle. In fact, it is on that principle only both

the courts below adjudicated the lis and recorded their

respective findings. The courts below recorded the admissions

made by DW.1 and on such appreciation, they concluded the

disputed points. That does not amount to decreeing the suit

based on the weaknesses of the opposite party. Therefore, the

1st substantial question of law has no merit and is held against

the appellants.

16. 2nd substantial question of law pales into insignificance in

view of what is already narrated in this judgment. Therefore,

this point does not require any further consideration. 3rd

substantial question of law which is concerning failure of

compliance of law contained in Order XLI Rule 27 CPC. This

Court records that the learned first appellate court failed to

comply with the law and that caused immense prejudice to the

case set out by the parties and therefore the point is answered

in favour of the appellants.

17. In the result, this appeal is allowed. The impugned

judgment dated 21.10.2005 of learned II Additional District

Judge, Fast Track Court, Srikakulam in A.S.No.23 of 2003 (by

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which O.S.No.77 of 2000 of learned Junior Civil Judge,

Narasannapeta was reversed) is set aside. Consequently, while

disposing of this second appeal, the said A.S.No.23 of 2003 is

remanded to learned II Additional District Judge, Fast Track

Court, Srikakulam and if that court is not available, the court

having jurisdiction over the matters of that court. Learned

Additional District Judge shall grant due opportunity to parties

on both sides and record oral and documentary evidence as the

parties choose with reference to three documents (described as

Exs.A4, A5 and A6) by duly complying with Order XLI Rule 27

CPC and other related provisions of CPC and shall re-hear the

appeal and dispose of it in accordance with law preferably

within in a period of six months. In terms of Order XLI Rule 26-

A of Code of Civil Procedure both parties are directed to appear

before the first appellate court on 06.02.2024.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 02.01.2024 Dvs

Dr. VRKS, J

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

Date: 02.01.2024

Dvs