Anoop Sharma & Anr vs Pushpa Sharma
2019 Latest Caselaw 1797 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CM(M)16/2019

                                   Judgment reserved on : 04.02.2019
                                       Date of decision : 01.04.2019

      ANOOP SHARMA & ANR                             ..... Petitioners

                          Through:      Mr. Sunil Sharma, Advocate

                          versus

      PUSHPA SHARMA                                  ..... Respondent

                          Through:      Mr.     Abhishek          Kumar,
                                        Advocate.

CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA

                                JUDGMENT

ANU MALHOTRA, J.

1. The petitioners vide the present petition assail the impugned order dated 21.04.2018 of the learned First Appellate Court of the ADJ- 04, New Delhi in RCA DJ No.56/17, vide which an application under Order 41 Rule 27 of the CPC filed by the appellants seeking to lead additional evidence, was declined, observing to the effect that the appellants through their written statement had stated that the plaintiff i.e. respondent to the appeal had gifted the front portion of the suit property measuring about 100 square meters to the defendant no.1 i.e. the appellant no.1 and that the plaintiff i.e. the respondent had executed

a gift deed of the said house and thus, as the appellant no.1 had sought to retain his right in the suit property on the basis of the said gift deed having done so, the appellants could not be permitted to challenge the title deed of the plaintiff i.e. the respondent herein by leading any additional evidence and that thus, the appellants had failed to show that there was any merit in the prayer made by the appellants through the application under Order 41 Rule 27 of the CPC.

2. The matter was vide the impugned order directed to be listed for oral arguments as also for arguments on an application under Section 151 of the CPC that had been filed by the appellant on 26.09.2017 requesting that the GPA of one Sh. Sunder Lal from the Office of the Registrar be summoned in as much as vide order dated 27.10.2017, the predecessor Appellate Court had directed that the said application would be decided along with the appeal and thus, the matter was re- notified for oral arguments on the appeal as well as on that application filed on 26.09.2017.

3. Notice of the petition had been issued to the respondent who put in appearance and contested the petition. The records put forth indicate that the respondent/plaintiff had on 11.11.2014 filed a suit for mandatory and permanent injunction against the defendant nos.1 & 2 i.e. the appellants herein seeking grant of a mandatory and permanent injunction which suit was vide judgment dated 05.06.2017 decreed for the grant of permanent and mandatory of ejectment of the defendants i.e. the appellants herein from the portion of the suit property which was in their occupation, it having been observed by the learned Trial Court that the plaintiff of the suit (i.e. the respondent herein) who is the mother

of the defendants of the suit i.e. the mother of the appellants herein was the registered owner of the suit property bearing no.RZ-761 measuring 200 square yards Gali no.4, Main Sagarpur, Delhi, in which the defendant no.1, her son with his wife i.e. defendant no.2 i.e. the appellants herein were living as licensees, which licence had been terminated by the mother of the defendant no.1 on 20.05.2014 and notice to that effect was also issued to the defendant no.1 as well as in the newspapers.

4. The learned Trial Court also held that the contention raised by the defendant no.1, i.e. the appellant no.1 herein that the plaintiff i.e. the respondent herein had gifted the suit property to the defendant no.1 i.e. the appellant no.1 vide a gift deed dated 03.02.2014, was also rejected taking into account that the said gift deed had not been registered in terms of Section 17(1)(a) of the Registration Act, 1908 (as amended).

5. One of the issues framed by the learned Trial Court was to the effect:-

"Whether the plaintiff (i.e. the respondent herein) is not the owner of the suit property as registered sale deed dated 16.04.1973 executed in favour of the plaintiff Sh. Lacchu Singh GPA holder of Sunder Lal is a forged and fabricated document? OPD"

6. The said issue was decided against the defendants i.e. the appellants herein vide judgment dated 05.06.2017 and was decided in favour of the plaintiff i.e. the respondent herein. As observed elsewhere hereinabove, an application filed by the appellants requesting that the GPA of Sh. Sunder Lal from the office of the Registrar be summoned was pending kept consideration at the time of decision with the appeal

vide order dated 27.10.2017. However, the application under Order 41 Rule 27 of the CPC of the appellants herein submitting to the effect that the sale deed Ex.PW1/1 put forth on behalf of the respondent/plaintiff was forged for which the appellants sought to produce the Sub-Registrar Kashmere Gate for comparison of signatures of Lacchu Singh for the vendor and Ram Niwas Sharma/ the witness with signatures on Ex.PW1/1, the sale deed was however, declined by the First Appellate Court vide the impugned order.

7. It was sought to be contended by the appellants that the photocopy of the certified copy of the sale deed at the places where Sh. Ram Niwas Sharma signed as a witness and Sh. Lacchu Singh signed as a vendor in favour of Sh. Sukh Devi indicate that there are varying signatures of Sh. Lacchu Singh and of Sh. Ram Niwas Sharma on pages of the sale deed itself and the factum that the plaintiff/respondent claimed the rights through Sh. Lacchu Singh being the GPA holder of the vendor, the examination of the witnesses as prayed by the appellants and production of additional evidence was essential.

8. The petition has been vehemently opposed on behalf of the respondent submitting to the effect that dilatory tactics are being deployed by the appellants and that there is no infirmity in the impugned order and that the findings of the learned Trial Court are cogent and categorical to the effect that the respondent is the owner of the suit property and that the licence of the appellant no.1 and consequentially that of his wife, to live in the premises in suit belonging admittedly to the respondent had been terminated with no rights left of the appellants to reside in the suit property.

9. It is essential to observe as has already been observed elsewhere hereinabove, that the application under Order 41 Rule 27 of the CPC has been disposed of by the learned First Appellate Court prior to the consideration of the adjudication on the appeal itself, which in terms of the verdict of Hon'ble Supreme Court in "Union of India (UOI) Vs. Ibrahim Uddin and Ors." in Civil Appeal No.1374 of 2008 reported in 2013 (4) ALJ 66 is erroneous. This is so, in as much as, it has been observed vide paragraphs 41 of the said verdict, which read to the effect:-

"41. Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.

In the instant case, the application under Order XLI Rule 27 CPC was filed on 6.4.1998 and it was allowed on 28.4.1999 though the first appeal was heard and disposed of on 15.10.1999. In view of law referred to hereinabove, the order dated 28.4.1999 is just to be ignored."

10. Thus, in view of the verdict of the Hon'ble Supreme Court, the ratio of which applies equally even to an application under Order 41

Rule 27 of the CPC which has been disallowed, the impugned order to the extent that it has disposed of the application under Order 41 Rule 27 of the CPC filed by the appellants herein is set aside with directions to the learned First Appellate Court seized with the hearing of RCA DJ No.56/17 to adjudicate the application under Order 41 Rule 27 of the CPC filed by the appellants along with the hearing of the appeal as well as along with the hearing of the application under Section 151 of the CPC filed on 26.09.2017 as observed in the impugned order itself.

11. Nothing stated hereinabove shall however amount to any expression on the merits or demerits of the disposal of the application under Order 41 Rule 27 of the CPC that has been filed by the appellants before the learned First Appellate Court.

12. The petition is disposed of accordingly.

13. Copy of this order be sent to the learned First Appellate Court seized of RCA DJ No.56/17 at the Patiala House Courts, New Delhi through the District & Sessions Judge, New Delhi.

ANU MALHOTRA, J.

APRIL 01, 2019/NC