Chattisgarh High Court
Dhorjiya Bai And Another vs Lalluram And Others on 29 June, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.286 of 2010
1A. Dhorjiya Bai, Aged about 60 years, W/o Tulsiram
E. Shivkumar, aged about 28 years, S/o Tulsiram
Both R/o Village Beljhiriay, Thana and Tahsil Marvahi, Distt. Bilaspur
(Defendants)
---- Appellants
Versus
1. B. Lalluram, aged about 36 years, S/o Tulsiram
C. Ramkumar, aged about 34 years, S/o Tulsiram
D. Munna, aged about 30 years, S/o Tulsiram
F. Gudda, aged about 19 years, S/o Tulsiram
G. Koushaliya Bai, aged about 40 years, W/o Harisingh, D/o Tulsiram
H. Rajkumar, aged about 38 years, W/o Budhhusingh, D/o Tulsiram
I. Jankibai, aged about 33 years, W/o Parsuram, D/o Tulsiram
All R/o Village Baljiriya, Thana & Tahsil Marvahi, Distt. Bilaspur (C.G.)
(Defendants)
2. Kanyavati, aged about 40 years, D/o Choturam Bramhin, R/o Village
Koda, Tahsil Koda, Thana Manendragarh, Distt. Koriya
(Plaintiff)
3. State of Chhattisgarh, through Collector, Koriya, Baikunthpur
---- Respondents
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For Appellants / Defendants No.1.A and E: -
Mr. Shalvik Tiwari, Advocate on behalf of Mr. Parag Kotecha,
Advocate.
For Respondents No.1.B, C, D, F, G, H and I / Defendants: -
Mr. C.K. Sahu, Advocate.
For Respondent No.3 / State: -
Mr. Ravi Kumar Bhagat, Deputy Govt. Advocate.
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Hon'ble Shri Justice Sanjay K. Agrawal
Judgment On Board
29/06/2021
1. Proceedings of this matter have been taken-up through video
conferencing.
2. This second appeal preferred under Section 100 of the CPC by the
appellants herein / defendants No.1.A & E was admitted for hearing
on 18-1-2021 by formulating the following substantial question of law:-
"Whether the First Appellate Court is justified in not
deciding the application under Order 41 Rule 27 of CPC
filed by the plaintiff and dismissing the appeal by recording
a finding perverse to the record?"
[For the sake of convenience, parties hereinafter will be referred
as per their status shown and ranking given in the suit before the trial
Court.]
3. The suit filed by the plaintiff was decreed on 28-1-2006 against which
the defendants preferred appeal on 13-6-2006 and thereafter filed
application under Order 41 Rule 27 of the CPC on 7-5-2008 for
admission of additional documents, but thereafter, the appeal was
heard on merits on 13-2-2009 and ultimately, judgment was
pronounced on 26-2-2009, but the application under Order 41 Rule 27
of the CPC, though referred by the first appellate Court in the
judgment, but, was not decided finally and the appeal was dismissed
by the first appellate Court against which this second appeal has been
preferred and substantial question of law has been formulated which
has been set-out in the opening paragraph of this judgment for the
sake of completeness.
4. Mr. Shalvik Tiwari, learned counsel appearing for the appellants
herein / defendants No.1.A and E, would submit that the first appellate
Court went wrong in not considering the application under Order 41
Rule 27 of the CPC and not permitting the appellants herein to admit
additional documents and kept the application pending and decided
the first appeal itself and dismissed the same which resulted in failure
of justice in absence of determination of the application under Order
41 Rule 27 of the CPC which runs contrary to the decision rendered
by the Supreme Court in the matter of Malayalam Plantations Limited
v. State of Kerala and another 1 and therefore the judgment & decree
of the first appellate Court deserve to be set aside.
5. Mr. C.K. Sahu, learned counsel appearing for respondents No.1.B, C,
D, F, G, H and I herein / defendants, would support the impugned
judgment & decree and oppose the second appeal.
6. True it is that the application under Order 41 Rule 27 of the CPC was
filed on 7-5-2008 seeking admission of additional documents. Though
the first appellate Court referred the application, but did not decide it
finally this way or that way and the first appeal came to be dismissed.
7. In Malayalam Plantations Limited (supra), their Lordships of the
Supreme Court have clearly held that application under Order 41 Rule
27 of the CPC ought to have been decided after hearing the appeal on
merits and thereafter the Court could have proceeded to decide the
appeal finally, but that has not been done in the present case and
keeping the application pending and dismissing the appeal on merits
certainly resulted in failure of justice. Their Lordships further held that
when an application for reception of additional evidence under Order
41 Rule 27 of the CPC was filed by the parties, it was the duty of the
Court to deal with the same on merits. It was observed as under: -
"15. In view of the above provision, in our opinion, when
an application for reception of additional evidence under
Order 41 Rule 27 of CPC was filed by the parties, it was
the duty of the High Court to deal with the same on merits.
The above principle has been reiterated by this Court in
1 (2010) 13 SCC 487
Jatinder Singh v. Mehar Singh2 and Shyam Gopal Bindal v.
Land Acquisition Officer3.
16. If any petition is filed under Order 41 Rule 27 in an
appeal, it is incumbent on the part of the appellate Court to
consider at the time of hearing the appeal on merits so as
to find out whether the documents or evidence sought to be
adduced have any relevance/bearing in the issues
involved. It is trite to observe that under Order 41, Rule 27,
additional evidence could be adduced in one of the three
situations, namely, (a) whether the trial Court has illegally
refused the evidence although it ought to have been
permitted; (b) whether the evidence sought to be adduced
by the party was not available to it despite the exercise of
due diligence; (c) whether additional evidence was
necessary in order to enable the Appellate Court to
pronounce the judgment or any other substantial cause of
similar nature.
18. In the light of the separate application filed under
Order 41 Rule 27 CPC for reception of additional evidence
by both sides, it is for the High Court to consider and take a
decision one way or other as to the applicability of the
same and decide the appeal with reference to the said
conclusion. In this view of the matter, we refrain from going
into the merits of the materials placed by both sides and it
is for the High Court to consider and take a decision one
way or other as per the mandate of the said provision."
8. Reverting to the facts of the present case in the light of the principle of
law laid down by the Supreme Court herein-above, it is quite vivid that
the first appellate Court has committed illegality in not deciding the
application under Order 41 Rule 27 of the CPC after hearing the
appeal on merits and dismissed the appeal.
9. Accordingly, the judgment and decree passed by the first appellate
Court is hereby set aside. The matter is remitted to the first appellate
Court for hearing the appeal as well as the application under Order 41
Rule 27 of the CPC afresh strictly in accordance with law. It is made
clear that this Court has not expressed any opinion on the merits of
the appeal and even has not expressed any opinion on the application
2 (2009) 17 SCC 465
3 (2010) 2 SCC 316
under Order 41 Rule 27 of the CPC and all questions are left and kept
open to be considered by the first appellate Court. Since the appeal
was filed on 13-6-2006, the first appellate Court is directed to consider
and dispose of the appeal and the application after hearing the parties
within a period of three months from the date of receipt of certified
copy of this order.
10. The second appeal is allowed to the extent indicated herein-above.
No order as to cost(s).
11. Records be sent back to the first appellate Court forthwith.
Sd/-
(Sanjay K. Agrawal)
Judge
Soma
