Jharkhand High Court
Ajay Kumar Verma vs Margaret Ane Roy And Others on 28 July, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 127 of 2019
Ajay Kumar Verma ... ... Appellant
Versus
Margaret Ane Roy and others ... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Mr. Rupesh Singh, Advocate
: Mr. Harshit Sahay, Advocate
For the Respondents : Mr. Radhey Shyam, Advocate
: Mr. Karan Pandey, Advocate
: Mr. Anand Kr. Sinha, Advocate
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21/28.07.2025 Heard the learned counsel for the parties.
2. Learned counsel for the appellant, in furtherance to the
arguments which was recorded vide order dated 25.03.2025 has
submitted that the judgment and decree of the trial court is dated
25.01.2006 (decree sealed and signed on 14.02.2006) which was
satisfied by the order of the Court, inasmuch as, the Court executed
the sale-deed in favour of the plaintiff on 07.09.2006 in Execution
Case No. 10 of 2006. However, appeal was filed on 15.09.2007 after
expiry of about 20 months from the date of the judgment and decree of
the learned trial court. He submits that the delay was condoned at the
1st appellate stage and appeal proceeded.
3. At the 1st appellate stage, additional evidence was led with
respect to the following documents which were marked exhibits:
(i) Exhibit A was the original status report of Title Suit No. 2 of
2000/PLA No. 141/ 1993 on 19.01.2015
(ii) Exhibit-B is the certified copy of the order dated 10.08.1999
passed by Hon'ble Mr. Justice Sujeet Kr. Sinha of Hon'ble
Calcutta high Court in Title Suit No. 2 of 2000/Probate Case
No. 141 of 1993.
(iii) Exhibit -C is the certified copy of the order-sheet of A.P.O. No.
169 of 2013 in Title Suit No. 2 of 2000.
4. Learned counsel for the appellant has submitted that the petition
in connection with additional evidence was allowed by the learned 1 st
appellate court against which a writ petition being W.P.(C) No. 1880
of 2017 was filed and the same is still pending. He has referred to the
order dated 21.11.2016 passed by the learned 1st appellate court and
has submitted that the basic condition precedent for allowing
additional evidence at appellate stage was not satisfied.
5. The additional documents were marked as exhibits on
09.02.2018. Learned counsel for the appellant has submitted that there
has been procedural error in marking the additional evidence as
exhibit on two counts:
(a) No opportunity was given to the appellant in rebuttal to the
additional evidence after it was allowed to be taken on record,
(b) The learned 1st appellate court instead of deciding the case on the
basis of additional evidence ought to have remanded the matter to
the learned trial court.
6. Learned counsel for the appellant has further submitted that on
the face of the provision of Order XLI Rule 27 of Code of Civil
Procedure (hereinafter referred to as 'CPC'), the normal rule is that
additional evidence shall not be permitted to be produced at the
appellate stage. However, there are certain exceptions mentioned
therein, but the manner in which the additional evidence has been
placed on record and has been considered in this case does not satisfy
the requirement under XLI Rule 27 of CPC.
7. Learned counsel for the appellant has relied upon the following
judgments:
(i) (2012) 8 SCC 148 (Union of India Vs. Ibrahim Uddin
and Another) (paragraph 48);
(ii) (2018) 4 SCC 659 (Akhilesh Singh Alias Akhileshwar
Singh Vs. Lal Babu Singh and Others) (paragraph 14);
(iii) (2018) 9 SCC 445 (Corporation of Madras and Another
Vs. M. Parthasarathy and others) (paragraphs 13 to 15).
8. Learned counsel for the appellant has also submitted that the
relief is to be granted by referring to the date on which the suit was
instituted. He submitted that on the date of institution of suit, the
probate was already granted on 07.09.1993 and the suit was filed on
10.09.1996, therefore, the order dated 10.08.1999 revoking the
probate could not have been taken into consideration to set-aside the
judgment passed by the learned trial court. For this, the learned
counsel has relied upon the judgment passed by Hon'ble Supreme
Court reported in (2017) 5 SCC 640 [Nidhi Vs. Ram Kripal Sharma
(Dead) through Legal Representatives] (paragraph 16).
9. Learned counsel for the appellant has also relied upon the
judgment passed by the Hon'ble Supreme Court reported in AIR 2020
Supreme Court 3102 (Shivakumar and others Vs. Sharanabasappa
and others) and has referred to paragraph 25 of the said judgment to
submit that even if the additional evidence was to be accepted, the
matter ought to have been remanded to the learned trial court. He
submits that the learned 1st appellate court was not justified in
considering the additional evidence and passing the final judgment.
The learned counsel has submitted that adequate opportunity was
required to be given to the plaintiff in rebuttal to the additional
evidence placed on record.
10. The learned counsel appearing on behalf of the respondents,
on the other hand, in furtherance of the arguments recorded on
25.03.2025 has referred to the impugned judgment passed by the
learned 1st appellate court at internal page 2 and has submitted that it
was endorsed in the agreement by the defendant that the agreement
will be valid till the date of granting probate of will of late Kamla
Prasad Roy and the defendant undertook to execute the sale-deed
within two months from getting the probate and thus, the agreement
was executed. The learned counsel has submitted that the agreement
itself was executed on the basis of Will which was yet to be probated.
11. The learned counsel for the respondents has also relied upon
internal page 4 of the 1st appellate court's judgment and has submitted
that in the written statement a stand was taken by the defendant that
the real fact was that after obtaining probate of the Will on
07.09.1993, the defendant came to Deoghar several times and
requested the plaintiff to get the sale-deed executed by paying the
balance consideration amount, but the plaintiff had no money to make
payment and get the sale-deed executed and the plaintiff avoided
execution of the sale-deed. It was further contended that in spite of
several requests, when the defendant found that the plaintiff was not
discharging his obligation by making payment of balance
consideration amount for getting the sale-deed executed, the defendant
issued a registered notice dated 14.01.1994 calling upon the plaintiff
to make payment of the balance consideration and to get the deed
executed within 15 days. The plaintiff did not receive the said notice
and returned the notice with false endorsement and thereafter, the
defendant also sent a notice under certificate of posting but the
plaintiff made no response. It was contended on behalf of the
defendant in the written statement that since the plaintiff had no
balance consideration, he conspired with Arti Roy Choudhary and
other two sisters of the defendant to cause harassment to the defendant
and the sisters of the defendant filed Title Suit No. 1352 of 1993 in the
City civil Court falsely claiming share in the property left by Kamla
Prasad Roy - their father and challenged the validity of the Will of
Kamla Prasad Roy.
12. In response, the learned counsel for the appellant has submitted
that the defendant never contested the suit after filing of the written
statement and therefore, any statement made in the written statement
has no value in the eyes of law and such averments in the written
statement was not supported by any evidence.
13. Arguments concluded.
14. Post this case on 31st July 2025 at 10.30 a.m. for dictation of
judgment in open Court.
(Anubha Rawat Choudhary, J.)
Pankaj
