Delhi High Court
Smt Nimmi Parveen vs Shahbaz Ahmad on 15 September, 2014
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 2148 of 2014 (M/S)
Smt. Nimmi Parveen .....Petitioner
Versus
Shahbaz Ahmad ..........Respondent
Present:
Mr. R.C. Joshi, Advocate for the petitioner.
Mr. I.P. Kohli, Advocate for the respondent.
Hon'ble Alok Singh, J (Oral).
Present petition is filed assailing the order
dated 26.08.2014, passed by the District Judge,
Almora in first appeal being Civil Appeal No. 10 of
2014, whereby the application moved by the
defendant / appellant / petitioner, herein, Paper
No.12 Kha on the record of the Appellate Court, for
appointment of Survey Commissioner to submit his
report as to whether constructions in question are
standing over Khasra No. 624 or Khasra No. 621 was
rejected.
Brief facts of the present case, inter alia,
are that plaintiff/respondent, herein, filed a suit for
possession against the defendant/petitioner, herein,
seeking possession from the defendant/petitioner,
herein, over the constructions standing on Khet No.
621, Patti Khasparja, District Almora. During the
pendency of the suit, defendant moved an
application seeking amendment in the written
statement to incorporate the pleading to the effect
that constructions in possession of the defendant are
situated in Khasra No. 624 and no part of the
construction is situated in Khasra No. 621, allegedly
purchased by the plaintiff. Amendment application
so moved by the defendant/petitioner, herein, was
rejected by the Trial Court. Against the rejection of
the amendment application, defendant/petitioner,
herein, filed a civil revision. During the pendency of
civil revision, suit itself was decreed by the learned
Trial Court, vide judgment and decree dated
31.03.2014. Consequently, civil revision assailing the
order of the trial court rejecting the amendment
application had rendered infructuous and was
dismissed. Thereafter, defendant/petitioner, herein,
preferred first appeal being Civil Appeal No. 10 of
2014. During the pendency of the appeal,
defendant/appellant/petitioner, herein, moved an
application under Order 26 Rule 9 C.P.C. for
appointment of Survey Commissioner to find out as
to whether constructions are standing over Khasra
No. 624 or Khasra No. 621. Application so moved by
the defendant/appellant/petitioner, herein was
rejected by the learned Appellate Court, vide
impugned Order dated 26.08.2014. Feeling
aggrieved, defendant / appellant / petitioner, herein,
approached this Court invoking Article 227 of the
Constitution of India.
I have heard Mr. R.C. Joshi, learned
counsel for the petitioner and Mr. I.P. Kohli, learned
counsel for the respondent, and have carefully
perused the record.
Undisputedly, during the pendency of the
suit, defendant/petitioner, herein, moved an
application seeking amendment in the written
statement to incorporate the pleading to the effect
that constructions are standing in Khet No. 624 and
no part of the construction in question is standing in
Khet No. 621 and, therefore, plaintiff is not entitled
to dispossess the defendant from the constructions
standing in Khet No. 624, not belonging to the
plaintiff; application seeking amendment was
rejected by the trial court; revision against the
rejection of the amendment was pending before the
revisional court and meanwhile suit was decreed by
the trial court.
In my considered opinion, every
interlocutory order passed by the trial court stands
merged in the final judgment and decree. Therefore,
while hearing the appeal against the final judgment
and decree, the appellate court is competent to
examine the legality and correctness of the
interlocutory order passed during the pendency of
the suit, which has adversely affected the decision of
the suit.
In the present case, while examining the
appeal, the appellate court obviously and certainly
shall look into the correctness and legality of
rejection of the amendment application. Since,
defendant/appellant is denying that property in
question is not a part of Khet No. 621, therefore, to
find out as to whether property in question is part of
Khet No. 621 or part of Khet No. 624, Survey
Commissioner seems to be must and necessary.
Mr. I.P. Kohli, learned counsel for the
respondent, submits that report of the Survey
Commissioner shall be a piece of evidence only,
therefore, unless and until principles of Order 41
Rule 27 are satisfied, additional evidence cannot be
permitted to be placed on record during the
pendency of the appeal; therefore, learned appellate
court was correct while rejecting the application.
Order 41 Rule 27 CPC reads as Under:-
"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
(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
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 exam med.
(2) Whenever additional evidence is allowed
to the produced, by an Appellate Court, the court
shall record the reason for its admission."
Perusal of Order 41 Rule 27 CPC reveals
that learned appellate court can accept the
additional evidence in either of the three
contingencies, viz., (i) if documents were refused to
be taken on record by the Trial Court or (ii) if
documents were not in the knowledge of the
applicant despite due diligence or (iii) if the
documents are required for fair adjudication of the
lis.
In my considered opinion, this is the duty
of the learned appellate court to find out as to
whether disputed constructions are on Khasra No.
621 belonging to plaintiff or are part of Khasra No.
624, as alleged by the defendant and sought to be
incorporated by way of amendment in the written
statement. Therefore, learned appellate court ought
to have allowed the application for survey of the
property to find out the actual Khasra number,
whereupon the constructions are standing.
Consequently, writ petition is allowed.
Impugned order is set aside. Application 12 Kha
moved by the defendant/appellant/petitioner, herein,
stands allowed. Learned appellate court shall
proceed further in accordance with law.
No order as to costs.
(Alok Singh, J.)
15.9.2014
Avneet/
