Jharkhand High Court
Ajay Kumar Verma vs Margaret Ane Roy on 25 November, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
2025:JHHC:35164
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 127 of 2019
Ajay Kumar Verma, aged about 66 years, son of Sadhu Sharan
Verma, resident of Roy Bunglow, Castairs Town, Asha Ram Keshan
Road, P.O. - B. Deoghar, P.S., Sub Division and District- Deoghar,
Jharkhand. PIN- 814112 ... ... Plaintiff/Respondent/Appellant
-Versus-
1. Margaret Ane Roy, widow of Late Dilip Kumar Roy
2. Robin Roy, son of Late Dilip Kumar Roy
3. Arun Kumar Roy, son of Late Dilip Kumar Roy
All respondent nos. 1, 2 and 3 resident of 30A, Sankhari Tola
Street, P.O.-Entall, P.S. Muchipara, District- Kolkata, West
Bengal. PIN- 700045
4. Mittra Labanya Kar, wife of Tapan Kumar Kar, daughter of Late
Dilip Kumar Roy, resident of 162/620 Lake Garden, P.O. Lake
Garden, P.S. Lake., District Kolkata, West Bengal. PIN- 700045
...... Defendants/Appellants/Respondents
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
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
---
Reserved on 31.07.2025 Pronounced on 25.11.2025
This second appeal has been filed against the Judgment dated
05.03.2019 (Decree sealed and signed on 15.03.2019) passed by the
learned District Judge-I, Deoghar in Title Appeal No.26 of 2007
setting aside the Judgment of the Trial Court dated 25.01.2006
(Decree sealed and signed on 14.02.2006) passed by the learned Sub-
Judge-III, Deoghar in Title Suit No.101 of 1996. The suit was decreed
and the defendant was directed to execute the sale deed of the suit
property after receiving the balance consideration amount within one
month from the date of order failing which the same would be
executed through the process of court.
2. The suit was decreed and the 1st appeal was allowed and
consequently, the plaintiff is the appellant and the respondents are the
legal heirs of the original defendant of the suit.
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3. This second appeal was admitted for final hearing vide order
dated 16.09.2019 on following substantial questions of law: -
(i) Whether in a suit of specific performance there cannot be
a judgment of reversal of the decree of trial court stands
satisfied by execution through the process of court even
prior to institution of appeal and there does not exist any
decree in the eyes of law to be set aside/reversed the
order of the trial court reversed by the appellate court?
(ii) Whether the 1st Appellate court has committed an error
of law by reversing the judgment & decree of the Trial
Court on the basis of additional evidence led by
appellant/defendant without granting opportunity of
rebuttal to the respondent/plaintiff?
(iii) Whether the 1st appellate court has committed serious
jurisdictional error in not resorting to the provisions of
Order 41 Rule 23A or Order 41 Rule 25 CPC after
passing a judgment of reversal on the basis of additional
evidence under Order 41 Rule 27?
Arguments on behalf of the appellant
4. The suit was for Specific Performance of Contract and the
judgment was passed in favour of the plaintiff on 25.01.2006. The
decree was drawn on 14.02.2006 and the decree stood satisfied on
07.09.2006 as the court concerned had directed to execute the sale
deed in favour of the plaintiff. The plaintiff had certainly deposited the
balance consideration amount for the purposes of execution of the sale
deed.
5. The learned counsel for the appellant submitted that much after
satisfaction of the decree, the appeal was filed before the First
Appellate Court on 15.09.2007 and delay in filing the appeal was also
condoned. However, at the 1st appellate stage, certain documents were
exhibited as additional evidence, particularly the document regarding
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revocation of the judgment passed in Probate Case No.141 of 1993
and the probate was revoked and it was converted into a Title Suit and
Title Suit was numbered as Title Suit No.2 of 2000 which as per the
impugned judgment is still pending. The learned counsel submitted
that the probate granted in Probate Case No.141 of 1993 was revoked
vide order dated 10.08.1999 and the order of revocation was brought
on record at the 1st appellate stage, but no opportunity was granted to
the appellant to rebut the said additional evidence. The learned
counsel further submitted that the appellate court has set aside the
decree by referring to the fact that the probate granted in Probate Case
No.141 of 1993 was revoked vide order dated 10.08.1999. The learned
counsel submitted that in absence of grant of any opportunity of
rebuttal by the plaintiff, who was the respondent in the first appellate
court, the 2nd substantial question of law is fit to be answered in favour
of the appellant.
6. He also submitted that the decree could still be sustained by
considering the fact that as to whether the undivided portion of joint
family property could be transferred in favour of the plaintiff by the
defendant which could have been considered upon remand as the same
would require evidence, but such exercise has not been undertaken by
the learned 1st Appellate Court and therefore, the 3rd substantial
question of law is also fit to be answered in favour of the appellant.
7. The learned counsel further submitted that the decree having
been satisfied prior to filing of the appeal, the consequence of setting
aside of the decree passed by the Trial Court is that the plaintiff has
been deprived of the entire consideration amount with respect to the
suit property and has also incurred expenses in execution of the sale
deed through the process of the court and after the passing of the
property in favour of the plaintiff upon satisfaction of decree, the First
Appellate Court has set aside the decree and consequently, the title of
the plaintiff acquired by execution of the decree is in cloud.
8. He submitted that the plaintiff has lost the consideration amount
and has also incurred expenses and has not got a clear title by virtue of
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the judgment passed by the learned 1st Appellate Court. He submitted
that once the decree is satisfied by virtue of its execution in Specific
Performance of Contract, the same cannot be reversed by the 1st
Appellate Court and therefore, the 1st substantial question of law is
also fit to be answered in favour of the appellant.
9. The learned counsel further submitted that such relief could not
have been granted by the 1st Appellate Court in absence of making a
prayer to nullify the sale deed already executed through the executing
court.
10. Learned counsel for the appellant further 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 submitted that the delay was condoned at the 1st appellate
stage and appeal proceeded.
11. The learned counsel for the appellant further submitted that at
the 1st appellate stage, additional evidence was led with respect to the
following documents which were marked exhibits as under:
(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.
12. Learned counsel for the appellant 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 referred to the
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order dated 21.11.2016 passed by the learned 1 st appellate court and
submitted that the basic condition precedent for allowing additional
evidence at appellate stage was not satisfied.
13. Learned counsel for the appellant further submitted that the
additional documents were marked as exhibits on 09.02.2018, but
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.
14. Learned counsel for the appellant further submitted that on the
face of 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 Order XLI Rule 27 of CPC.
15. Learned counsel for the appellant 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).
16. Learned counsel for the appellant 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
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probate was already granted on 07.09.1993 and the suit was filed on
10.09.1996 and 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 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).
17. Learned counsel for the appellant 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 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 submitted
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.
Arguments on behalf of the respondents
18. The learned counsel appearing on behalf of the respondents, on
the other hand, referred to the impugned judgment passed by the
learned 1st appellate court at internal page 2 and 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.
19. The learned counsel for the respondents also relied upon the
internal page 4 of the 1st appellate court's judgment and 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 original defendant came to Deoghar several times and requested
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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 original 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
original 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 original 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.
Rejoinder arguments on behalf of the appellant
20. In response, the learned counsel for the appellant submitted
that the original 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.
21. On the basis of the pleadings of the parties, the learned trial
court had framed the following issues for consideration:
(i) Is the suit maintainable in its form?
(ii) Has the plaintiff valid cause of action?
(iii) Whether the defendant has executed an agreement of
sale of suit property to the plaintiff on 8.2.91 on a
consideration of Rs.2,00,000/- and whether the
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plaintiff has paid the earnest amount of Rs.13,000/-
through Bank Draft to the defendant in advance for
the sale of the suit property?
(iv) Whether the plaintiff is readiness and willingness to
pay the balance amount of the agreement for sale for
the execution of the sale deed and whether the
defendant is avoided to perform the part of contract?
(v) Whether the plaintiff is entitled to a decree of part
performance of contract?
(vi) To what other relief or reliefs is the plaintiff entitled
thereto?
22. In course of trial, the plaintiff examined altogether three
witnesses to prove his case. PW-1 is Ajay Kumar Verma, PW-2 is
Rajesh Kumar Ambastha and PW-3 is Ajit Karmkar. Apart from the
oral evidences, the plaintiff also exhibited the deed of agreement of
sale as Exhibit-1, Letter dated 04.06.1991 tendered by plaintiff to
defendant in which he showed his readiness and willingness in
payment of rest of the amount as Exhibit-2, postal receipts showing
sending of Letter dated 04.06.1991 to the defendant by registered post
as Exhibit-3 and Exhibit 3/A, acknowledgements which show that the
letter was sent to the sole agent Mr. M.A. Roy as Exhibit-4 and 4/A
and Letter dated 09.04.1996 sent by the defendant to the plaintiff as
Exhibit-5, site plan as Exhibit-6.
23. The defendant neither examined any witness, nor he exhibited
any documents before the learned trial court.
24. The learned trial court recorded its finding in Paragraph Nos.5,
6, 7 and 8 which are quoted as under:
"5. ISSUE NOS. 3 & 4 These two issues are the most
important issues involved in the suit which are taken up
together first for the convenience's sake as also for arriving at
the correct finding and determination of the suit. From the
plain reading of the pleadings of the parties I find that the
plaintiff's averment regarding the agreement. to sale of the suit
property in favour of the plaintiff by the defendant on the terms
and conditions stipulated in the agreement, they all are
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admitted in the WS. I further find from the careful scrutiny of
the pleadings of the parties that it is the admitted position that
the plaintiff was the tenant in the suit premises under the
landlordship of the defendant Dilip Kumar Roy and in course
of the tenancy the defendant's landlord was in dire need of
money to meet the marriage expenses of daughter over to sale
the suit property to the plaintiff on a consideration amount of
Rs.2,00,000/- and the plaintiff agreed to purchase the same and
therefore an agreement was reduced into writing and executed
the same after receiving the earnest money Rs.40,000/- in two
times vide two Bank Drafts with the condition that the
defendant shall execute the sale deed within 31.3.91. All these
averments are admitted by the defendant in the WS. So, the
agreement to sale in question of the suit property is
undisputed. I further find that the defendant has left doing
Pairvi in this suit after filing WS. It is also the admitted
position that the plaintiff is in possession of the suit property
by virtue of agreement to sale. Therefore, there is no any
controversy regarding the agreement to sale executed by the
defendant for the sale of the property on a consideration of
Rs.2,00,000/- as also the money Rs.40,000/- received by the
defendant in advance. So, it is the settled law that the facts
admitted need not be proved.
6. Now for the purpose of affectual adjudication of the suit,
I feel it necessary to elaborate the evidence of the plaintiff, oral
and documentary available on record. The plaintiff has
examined as many as three witnesses namely. P.W.1 Ajay
Kumar Verma who is the plaintiff himself P.W. 2 is Rajesh
Kumar Ambastha and P.W. 3 is Ajit Karmkar. From the
evidence of P.W.1 I find that the plaintiff has wholly supported
his case in the matter of agreement, payment of Rs.40,000/- out
of Rs.2,00,000/- being the amount of sale of the suit property.
He is also shown his readiness and willingness till now to
perform the part of contract and is ready to make payment of
the remaining amount for execution of the sale deed. He is
always ready to perform the part of contract but it is the
defendant who always avoided to discharge his liabilities
which are within the conditions of the agreement. P.W.2 is
Rajesh Kumar Ambastha who has proved the deed of
agreement dated 8.2.91 which is on record. P.W.3 is also
proved the payment of money execution of the agreement to
sale. I have also perused the documentary evidence and I find
that the deed of agreement to sale is Ext. 1. The agreement
involves the suit property with a specified area and the
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agreement further transpires that the defendant Dilip Kumar
Rai admittedly agreed to convey the sale deed after granting of
Probate of Will of the suit property and further undertook to
execute the sale deed within two months from getting the
Probate. It is the admitted case of the defendant that the
Probate of the suit property was granted in his favour by the
concurrent Court of law and even thereafter receiving the
notice of the plaintiff he has failed to perform the part of
contract and he did not execute the sale deed. Ext. 2 is a letter
dated 4.6.91 tendered by plaintiff to the defendant in which he
has shown his readiness and willingness in the payment of the
rest amount and also asking the defendant to execute the sale
deed. Ext. 3 is Postal receipt which supports the Ext.2 that this
letter was sent to the defendant by registered post. Ext. 4 1s
acknowledgment deed which shows that the letter was sent to
the sole agent Mr. M.A. Roy. Ext. 3 is another postal receipt
and Ext. 4 and 4A are A.D.. Ext. 6 is a site plan. So
considering the entire facts and evidence on record, I find
and hold that the plaintiff has a good case Specific
performance of contract Act and he has been able to prove his
case on the point of part performance on the point of
readiness and willingness to perform the part of contract. It is
also well proved that the defendant has always evaded to
execute sale deed and therefore the defendant is thus liable to
execute the sale deed on payment of the rest amount as per
the terms and conditions stated in the agreement. These
issues are accordingly answered.
7. Issue No. II & V- From the perusal of the evidence as
also from the perusal of the pleadings it is made quite clear
that the plaintiff has a valid cause of action for the suit and he
is entitled to the reliefs for a decree of part performance of the
contract.
8. ISSUE NOS. 1 & 6- Regard being had the
circumstances of the case I find that the suit as framed is
maintainable in its form. The plaintiff is entitled to the reliefs
claimed."
25. Accordingly, the learned trial court decided all the issues in
favour of the plaintiff and decreed the suit in favour of the plaintiff
and directed the defendant to execute the sale deed of the suit property
after receiving the balance consideration amount within one month
from the date of order failing which the same shall be executed
through the process of court.
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26. At the appellate stage, the defendant exhibited the original
status report of T.S. No.2 of 2000/PLA No. 141/93 on 19.01.2015
alongwith Receipt No.83 dated 19.01.2015 as Exhibits-A, C.C. of
order dated 10.08.1999 passed by the Hon'ble Calcutta High Court in
T.S No.2 of 2000/ Probate Case No.141 of 1993 as Exhibit-B, C.C. of
order-sheet of A.P.O. No.169/2013 in T.S. No.2 of 2000 as Exhibit-C.
27. The learned 1stAppellate Court framed the following points for
determination:-
(I) Whether the appellant/defendant was entitled to enter into
an agreement for sale without getting the will probated in
his favour?
(II) Whether the appellant/defendant could transfer specific
portion of joint property without permission?
(III) Whether the appellant/defendant could transfer the suit
property in violation of the injunction order passed by the
Hon'ble Calcutta High Court?
28. The learned 1st appellate court also considered the materials on
record and recorded its findings in Paragraph No.9 which is quoted as
under:
"(9)..................................................................................
Question/Issue No. (I):- One Kamla Prasad Ray was the sole and
absolute owner of the houses and premises in question including
other portions commonly known as Roy Bunglow situated in
Mohalla Castrair's Town Deoghar who died on 26.05.1976
leaving behind his only son Dilip Kumar Ray and three daughters
namely, Smt. Priti Sinha, Smt. Arti Sinha and Smt. Bhaswati
Konar Ray and his widow Savitri Bala Roy who also died on
10.03.1993. It is the case of the defendant/appellant that Kamla
Prasad Ray bequathed his all properties to his only son Dilip
Kumar Ray on 27.06.1969. Soon after the death of the widow of
Kamla Prasad Ray, his three daughters filed partition suit in the
month of July 1993 in the City Civil Court, Calcutta and the said
suit was registered as Title Suit No. 1352/1993 and in the
meantime the alleged "Will" was come to be known by the three
sisters of Dilip Kumar Ray and also probate certificate granted on
07.09.1993 and thereafter at the instance of three sisters of Dilip
Kumar Ray the said probate certificate was revoked by the
Hon'ble Calcutta High Court vide order dated 10.08.1999 in the
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Probate Case No.141 of 1993 and the probate proceeding was
converted and numbered as Title Suit No. 2 of 2000 of Hon'ble
Calcutta High Court original side.
Thus, from the above, it is crystal clear that the
defendant/appellant Dilip Kumar Ray entered into an agreement
to sale the suit property without getting the alleged "Will"
probated in is favour and such agreement is not proper in the
eye of law and such agreement could not have been lawfully
executed on 08.02.1991 and accordingly the very suit for specific
performance is based on unlawful and unenforceable
agreement.
Question/Issues No. (II):- The defendant/appellant as per
law is not entitled to transfer specific portion of joint family
property but of course he can sale his share in the joint family
property and whenever a share in the property is sold the vendee
has a right to apply for partition of the property and get the share
demarcated. But in the present case, the defendant/appellant
without obtaining the probate of the Will entered into an
agreement with the plaintiff/respondent for selling the specific
portion of property which is not tenable in the eye of law. Again
much before the passing of the impugned judgment, the probate
granted in favour of the defendant/appellant was revoked vide
order dated 10.08.1999 of the Hon'ble Calcutta High Court and it
was further ordered that ad-interim order of injunction shall
continue and the same shall abide by the result of the
testamentary proceeding.
Thus, from the above, it goes without saying that specific
portion of joint family property cannot be transferred by a co-
sharer. Of course, Karta of a joint family can sell the joint
family property for legal necessity.
Question/Issue No. (III): The Hon'ble Calcutta High Court
vide its order dated 10.08.1999 revoked the probate granted in
favour of the defendant/appellant and ordered that ad-interim
injunction shall continue and the same shall abide by the result of
the testamentary proceeding and from the perusal of the
documents exhibited on behalf of the defendant/appellant it
appears that the Probate Case No.141 of 1993 which was
converted into Title Suit No.2 of 2000 is still pending before the
Hon'ble Calcutta High Court and as such the judgment and
decree ought not to have been passed by the learned court below.
Much emphasis has been laid by the learned lawyer of the
plaintiff/respondent that the plaintiff/respondent was neither a
party in the title partition suit in the City Civil Court, Calcutta nor
a party in the probate proceeding pending before the Hon'ble
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Calcutta High Court and as such the order of either City Civil
Court, Calcutta or Hon'ble Calcutta High Court in probate
proceeding is not binding on the plaintiff/respondent. But the
order passed by the Hon'ble Calcutta High Court is a judgment in
rem and is binding on one and all including the
plaintiff/respondent (AIR 2009 S.C. Page 3232). Again Ext. 5,
which is a letter sent by D. K. Ray on 09.04.1996 to Ajay Kumar
Verma, further falsifies the claim and case of the
plaintiff/respondent as in para 4 of the said letter there is mention
of the two proceedings in between the brother Dilip Kumar Ray
and the sisters being Title Partition Suit No. 1352/1993 and
challenge of Probate Case No. 141/1993 by the sisters was
completely suppressed by the plaintiff/respondent while obtaining
the impugned judgment and decree.
Moreover, the suit is barred by law of limitation as the
Probate Case was initiated in the year 1993 and registered as
Probate Case No. 141/1993 after the lapse of more or less about
17 years of the death of the testator namely, Kamla Prasad Ray as
the period prescribed for applying for probate certificate is only 3
years as held by the Hon'ble Apex Court reported in A.I.R. 1977
S.C. Page 282."
Findings of this court
Substantial Question of Law No.(i)
"Whether in a suit of specific performance, there cannot be a
judgment of reversal of the decree of trial court stands satisfied
by execution through the process of court even prior to
institution of appeal and there does not exist any decree in the
eyes of law to be set aside/reversed the order of the trial court
reversed by the appellate court?
29. The title suit was for specific performance of the agreement to
sale dated 08.02.1991. It is not in dispute that the judgment with
regard to specific performance of contract was passed on 25.01.2006
in Title Suit No.101 of 1996. The decree was drawn on 14.02.2006
and the decree stood satisfied on 07.09.2006 when the court directed
for execution of the sale deed in favour of the plaintiff and the sale
deed was executed much after satisfaction of the decree. The first
appeal was filed on 15.09.2007 and the delay in filing the appeal was
also condoned and vide the impugned judgement dated 05.03.2019 the
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judgement and decree passed in Title Suit No.101 of 1996 much after
the decree was satisfied upon execution of the sale deed through the
process of the court.
30. This Court is of the view that once the first appeal was admitted
by the learned 1st appellate court after condoning the delay, the first
appeal was in continuation of the suit and the appeal was certainly
required to be decided on its own merit. This Court is of the
considered view that once the appeal is decided and the judgment is
reversed and the plaintiff was not found entitled for specific
performance of contract under law, then the Court would have no
option, but to set-aside the trial court's judgment and decree granted in
favour of the plaintiff. When the decree for specific performance of
contract has been set-aside after execution of the sale deed through the
process of court, the plaintiff would be put in a peculiar situation
where the plaintiff stands deprived of the property and also loses the
balance consideration deposited for execution of the sale deed through
the process of the court. In such circumstances, appropriate order is
required to be passed by the appellate court in order to balance the
equities between the parties. It has been held in the judgement
reported in (2017) 5 SCC 640 (Nidhi -versus- Ram Kripal Sharma) in
Paragraph-16 that ordinarily, the right of the parties gets crystalized on
the date of filing the suit, but the court has the power to take note of
subsequent events and mould the relief accordingly subject to
following condition being satisfied as enumerated in the said judgment
itself. Paragraph-16 of the aforesaid judgment is quoted as under: -
"16. Ordinarily, the rights of the parties stand crystallised on
the date of institution of the suit. However, the court has power
to take note of the subsequent events and mould the relief
accordingly. Power of the court to take note of subsequent
events came up for consideration in a number of decisions.
In Om Prakash Gupta v. Ranbir B. Goyal, this Court held as
under: (SCC pp. 262-63, para 11)
"11. The ordinary rule of civil law is that the rights of the
parties stand crystallised on the date of the institution of the
suit and, therefore, the decree in a suit should accord with the
rights of the parties as they stood at the commencement of the
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lis. However, the Court has power to take note of subsequent
events and mould the relief accordingly subject to the following
conditions being satisfied : (i) that the relief, as claimed
originally has, by reason of subsequent events, become
inappropriate or cannot be granted; (ii) that taking note of
such subsequent event or changed circumstances would shorten
litigation and enable complete justice being done to the parties;
and (iii) that such subsequent event is brought to the notice of
the court promptly and in accordance with the rules of
procedural law so that the opposite party is not taken by
surprise. In Pasupuleti Venkateswarlu v. Motor & General
Traders [Pasupuleti Venkateswarlu v. Motor & General
Traders, (1975) 1 SCC 770] this Court held that a fact arising
after the lis, coming to the notice of the court and having a
fundamental impact on the right to relief or the manner of
moulding it and brought diligently to the notice of the court
cannot be blinked at. The court may in such cases bend the
rules of procedure if no specific provision of law or rule of fair
play is violated for it would promote substantial justice
provided that there is absence of other disentitling factors or
just circumstances. The Court speaking through Krishna Iyer,
J. affirmed the proposition that the court can, so long as the
litigation pends, take note of updated facts to promote
substantial justice. However, the Court cautioned : (i) the event
should be one as would stultify or render inept the decretal
remedy, (ii) rules of procedure may be bent if no specific
provision or fair play is violated and there is no other special
circumstance repelling resort to that course in law or justice,
(iii) such cognizance of subsequent events and developments
should be cautious, and (iv) the rules of fairness to both sides
should be scrupulously obeyed."
Om Prakash Gupta case was referred with approval in Ram
Kumar Barnwal v. Ram Lakhan."
31. There can be no dispute that once the judgement of the trial
court is set-aside, all consequential orders and actions stand nullified.
Further, there could be situations like lack of jurisdiction, decree
obtained by fraudulent methods, suppressing material facts or
judgement/decree passed without due service of notice etc. Under
such situations, it can certainly be not said that the learned appellate
court would be helpless once such a decree is satisfied.
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32. In the present case, the learned 1st appellate court has set-aside
the judgment and decree, inter-alia, by relying upon additional
evidence and recording a finding that the plaintiff was guilty of
suppressing material facts from the court. There is a finding by the
learned 1st appellate court of suppression of material facts by the
plaintiff while obtaining the decree of the specific performance of the
agreement involved in this case.
33. Thus, while answering the 1st substantial question of law, this
court is of the considered view that in a suit of specific performance,
there can be a judgment of reversal of the decree of trial court even
if the decree stands satisfied by execution through the process of
court even prior to institution of appeal. This court is of the
considered view that once the appeal is admitted, the legality and
validity of the decree passed by the trial court is required to be
decided and if a case so arises, the judgment and decree so
impugned can also be set-aside by the 1st appellate court subject to
any terms which may be put to the parties to balance the equities
between the parties. If the 1st appellate court sets aside the decree of
specific performance of contract, the sale deed so executed through
the process of the court will be rendered void. The 1st substantial
question of law is accordingly answered against the appellant
(plaintiff) and in favour of the respondents (defendants).
34. Findings on Substantial Question of Law No.(ii) and (iii)
(ii) Whether the 1st Appellate court has committed an error of
law by reversing the judgment & decree of the Trial Court on
the basis of additional evidence led by appellant/defendant
without granting opportunity of rebuttal to the
respondent/plaintiff?
(iii) Whether the 1st appellate court has committed serious
jurisdictional error in not resorting to the provisions of Order
41 Rule 23A or Order 41 Rule 25 CPC after passing a
judgment of reversal on the basis of additional evidence under
Order 41 Rule 27?
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Both the substantial questions of law are related to each other
and are therefore taken up together.
35. As per the case of the plaintiff, in the year 1990, the defendant
being in dire need of money to meet the marriage expenses of his
daughter expressed his intention to sell out the suit property on a
consideration amount of Rs.2,00,000/- and the plaintiff paid
Rs.40,000/- in advance by bank draft and thereafter agreement of sale
of the suit property was executed on 08.02.1991 with a promise if the
sale deed be not executed within 31.03.1991 then the entire earnest
money shall be refunded with interest @ 6% and it was also 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
further defendant undertook to execute the sale deed within two
months from getting probate.
36. While answering Question/Issue No. III, the learned 1st
appellate court recorded that the Calcutta High Court vide order dated
10.08.1999 revoked the probate granted in favour of the defendant and
had ordered that ad-interim injunction shall continue and the same
shall abide by the result of the testamentary proceeding. The learned
1st appellate court recorded that the documents revealed that Probate
Case No. 141 of 1993, which was converted into Title Suit No. 02 of
2000, was still pending before the Hon'ble Calcutta High Court and in
such circumstances, the judgment and decree ought not to have been
passed by the learned trial court. The learned 1 st appellate court has
recorded a clear finding that there were two proceedings between the
brother Dilip Kumar Ray and sisters being Title Partition Suit No.
1352/1993 and challenge of Probate Case No.141/1993 by the sisters
which were completely suppressed by the plaintiff who obtained the
impugned judgment and decree of specific performance of contract. In
such circumstances, the judgment and decree passed by the learned
trial court was held to have been obtained by suppression of material
facts before the court and with this the learned 1st appellate court was
pleased to set-aside the judgment and decree of the learned trial court.
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This finding of suppression of material facts was recorded primarily
on the basis of the additional evidence adduced by the defendant at the
1st appellate stage which was allowed.
37. So far as 2nd substantial question of law is concerned, this Court
finds that a petition under Order XLI Rule 27 read with Section 151 of
CPC was filed on behalf of the defendant being the appellant before
the learned 1st appellate court on 02.02.2015 and a reply to the same
was also filed by the plaintiff on 10.07.2015. The defendant had
submitted that the impugned judgment and decree was obtained by the
plaintiff by suppressing the facts that already litigation was pending
before the Hon'ble Calcutta High Court for grant of probate which
was subsequently revoked in Probate Case No.141 of 1993 by Hon'ble
Calcutta High Court and the same was converted into Title Suit No. 02
of 2000 and ad-interim injunction was ordered to be continued till
final decision of the testamentary proceedings pending before the
Court in exercise of its original jurisdiction.
38. It was stated in the petition of additional evidence that the Title
Suit No.02 of 2000 was still pending before the Hon'ble Calcutta High
Court which was evident from the status report dated 19.01.2015. In
this background, the defendant had filed three documents as
mentioned above along with a list. It was asserted that all the
documents were public document which was necessary for the just
decision of the case and a prayer was made to take these documents as
additional evidence. The prayer was opposed by the plaintiff, who was
the respondent before the learned 1st appellate court and it was
asserted that the defendant in the suit was all along careless and
negligent and knowingly and deliberately absented himself and had
abandoned the Title Suit No.101/1996 and he never adduced any
evidence in the trial and therefore, it was meaningless to file the
petition to allow him to adduce additional evidence. It was also
asserted that the plaintiff was not a party in the alleged probate case in
the High Court of Calcutta and therefore any order passed by the
Hon'ble Court was not enforceable and binding on the plaintiff. It was
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also asserted that in the written statement dated 27.04.1998, Dilip
Kumar Roy had mentioned about the injunction order passed by the
learned City Civil Court, but on the date of passing of the judgment
dated 25.01.2006, there was no injunction for stay order in existence.
The learned 1st appellate court ultimately allowed the petition seeking
additional evidence and the defendant, appellant in the first appeal,
was directed to take steps for exhibiting the document as per law and
the matter was directed to be posted on 29.11.2016 for additional
evidence of the defendant-appellant in first appeal.
39. On 13.12.2016, a petition was filed on behalf of the defendant
before the learned 1st appellate court to mark the documents as
exhibits which was directed to be kept on record and the plaintiff
prayed for time to file a writ petition before the Hon'ble High Court.
Accordingly, time was granted. The case was adjourned from time to
time and on 17.07.2017, it has been recorded that an order dated
22.06.2017 passed in W.P. (C) No.1880/2017 was placed whereby
notice was issued in the writ petition and thereafter the matter was
again adjourned from time to time and ultimately on 09.02.2018, the
following order was passed: -
".....................................................................................
Hence, original status report of T.S. No. 2 of 2000/PLA No.
141/93 on 19.1.2015 along with receipt no. 83 DATED
19.1.2015 is marked as Ext-A, c/c of order dated 10th August
1999 passed by the Hon'ble Justice Sujit Kumar Sinha of
Calcutta High Court in T.S. No. 2 of 2000/Probate Case No. 141
of 1992 is marked as Ext-B and c/c of order sheet of A.P.O. No.
169 of 2013 in T.S. No. 2 of 2000 is marked as Ext.-C. Put up the
record on 6-3-18 for final argument."
40. During the pendency of the writ petition before the High Court,
the aforesaid documents were marked Exhibits- A, B and C and the
matter was straightaway posted for final arguments and thereafter the
matter was adjourned from time to time at the stage of final argument
and ultimately the judgment was pronounced on 05.03.2019 and the
learned 1st appellate court has set-aside the judgment and decree of the
learned trial court primarily on the ground that the plaintiff had
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suppressed material facts from the court. This has happened without
giving any opportunity to the plaintiff to rebut the additional evidence
and finding was recorded by the learned 1st appellate court that the
plaintiff had suppressed material facts from the court.
41. In the judgment passed by the Hon'ble Supreme Court reported
in (2018) 9 SCC 445 (supra), it has been held that once the additional
evidence is permitted at the appellate stage, other side must be given
opportunity to lead rebuttal evidence to counter additional evidence. It
has been held that in such circumstances, the appellate court has two
options; (i) it could have either set aside the entire judgment/decree of
the trial court by taking recourse to the provisions of Order XLI Rule
23-A of the Code and remand the case to the Trial Court for retrial in
the suits so as to enable the parties to adduce oral evidence to prove
the additional evidence in accordance with law or (ii) it had an option
to invoke powers under Order XLI Rule 25 of the Code by retaining
the appeals to itself and remitting the case to the trial court for limited
trial on particular issues arising in the case in the light of additional
evidence which was taken on record and invite findings of the trial
court on such limited issues to enable the 1st appellate court to decide
the appeals on merits. Paragraph 13, 14 and 15 of the aforesaid
judgment are quoted as under: -
"13. First, it took into consideration the additional piece of
evidence while deciding the appeals on merits without
affording any opportunity to the appellants herein (who were
respondents in the first appeals) to file any rebuttal evidence to
counter the additional evidence adduced by the respondents
(appellants before the first appellate court). This caused
prejudice to the appellants herein because they suffered the
adverse order from the Appellate Court on the basis of
additional evidence adduced by the respondents for the first
time in appeal against them. (See LAO v. H. Narayanaiah,
Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills
and Akhilesh Singh v. Lal Babu Singh.
14. Second error was of a procedure which the first appellate
court failed to resort in disposing of the appeals. This also
involved a question of jurisdiction.
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15. Having allowed the CMP No. 1559/1993 and, in our
opinion rightly, the first Appellate Court had two options, first
it could have either set aside the entire judgment/decree of the
trial court by taking recourse to the provisions of Order 41
Rule 23-A of the Code and remanded the case to the Trial
Court for retrial in the suits so as to enable the parties to
adduce oral evidence to prove the additional evidence in
accordance with law or second, it had an option to invoke
powers under Order 41 Rule 25 of the Code by retaining the
appeals to itself and remitting the case to the trial court for
limited trial on particular issues arising in the case in the light
of additional evidence which was taken on record and invite
findings of the trial court on such limited issues to enable the
first appellate court to decide the appeals on merits."
42. In the judgement reported in (2018) 4 SCC 659 (supra), it has
been held in Paragraph-14 that when the appellate court admits
additional evidence under Order 41 Rule 27 of C.P.C., there could be
no reason for not following the same course of granting opportunity to
the contesting party, which may be affected by acceptance of
additional evidence. This is all the more important when new ground
is urged and the contesting party should be granted opportunity to
meet such ground. Paragraph 12 to 15 of the aforesaid judgement is
quoted as under: -
"12. Order 41 Rule 27 CPC, which deals with the provision of
additional evidence in appellate court, provides for the grounds
and circumstances on which the appellate court may allow
such evidence or documents or witnesses to be examined.
Order 41 Rule 27 sub-rule (2) further provides that wherever
additional evidence is allowed to be produced by an appellate
court, the court shall record a reason for its admission. Order
41 Rule 27 is silent as to the procedure to be adopted by the
High Court after admission of additional evidence. Whether
after admission of additional evidence, it is necessary for the
appellate court to grant opportunity to the other party to lead
evidence in rebuttal or to give any opportunity is not expressly
provided in Order 41 Rule 27.
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13. One provision, which is part of Order 41, which also needs
to be noted is Order 41 Rule 2, which is as follows:
"2. Grounds which may be taken in appeal.--The
appellant shall not, except by leave of the court, urge or be
heard in support of any ground of objection not set forth in
the memorandum of appeal; but the appellate court, in
deciding the appeal, shall not be confined to the grounds of
objections set forth in the memorandum of appeal or taken
by leave of the court under this rule:
Provided that the court shall not rest its decision on any
other ground unless the party who may be affected thereby
has had a sufficient opportunity of contesting the case on
that ground."
14. Order 41 Rule 2 provides that the appellant shall not,
except by leave of the court, be allowed to urge any ground in
the appeal, which is not set forth in the memorandum of appeal.
The proviso to Order 41 Rule 2 engrafts a rule, which obliged
the Court to grant a sufficient opportunity to the contesting
party, if any new ground is allowed to be urged by another
party, which may affect the contesting party. The provision
engrafts rule of natural justice and fair play that contesting
party should be given opportunity to meet any new ground
sought to be urged. When the appellate court admits the
additional evidence under Order 41 Rule 27, we fail to see any
reason for not following the same course of granting an
opportunity to the contesting party, which may be affected by
acceptance of additional evidence. In the present case,
additional evidence, which were brought on the record were
registered sale deeds, which were executed by the present
appellant and his other co-sharers and what was relied on
before the High Court was that the appellant admitted in the
sale deeds that the partition has taken place in the family. The
main issue in the first appeal before the High Court was as to
whether the finding of the trial court that no partition by metes
and bounds has taken place in the family is correct or not. The
additional evidence which was admitted has been relied on by
the High Court while allowing the appeal. It was in the interest
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of justice that the High Court ought to have allowed
opportunity to the plaintiffs, who were respondents to the first
appeal to either lead an evidence in rebuttal or to explain the
alleged admissions as relied on by the defendants. The mere
fact that no counter-affidavit was filed to the IAs was not
decisive. Since IAs having not been admitted, occasion for
counter-affidavit did not arise at any earlier point of time. The
High Court on the same day i.e. 8-3-2017 has allowed1 the IAs
as well as the first appeal. The fact that the contesting
respondents to the first appeal, who are the appellant before us
were not represented at the time of hearing of the first appeal,
was not a reason for not giving opportunity to them to lead
evidence in rebuttal.
15. A three-Judge Bench of this Court in LAO v. H.
Narayanaiah had occasion to consider Order 41 Rule 27 in
context of admission of additional evidence by the appellate
court. This Court had observed that in the event the High Court
admits additional evidence, an opportunity should have been
given to the other party to rebut any inference arising from its
existence by leading evidence. In para 28 of the judgment,
following has been laid down:
"28. The Karnataka High Court had, however, not
complied with provisions of Order 41 Rule 27 CPC
which require that 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 Order 41 Rule 27 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."
43. This Court finds that the additional evidence was led by the
defendant, who was the appellant before the learned 1st appellate court
and the learned court after recording additional evidence by marking
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the three documents as Exhibits- A, B and C straightaway directed
that the matter be posted for final argument and did not afford any
opportunity to the present appellant (plaintiff) to file any rebuttal
evidence to counter the additional evidence adduced by the defendant
before the learned 1st appellate court. This has certainly caused serious
prejudice to the appellant (plaintiff) because they suffered a judgement
of reversal from the 1st appellate court on the basis of additional
evidence and on such basis, a finding was recorded that the plaintiff
had suppressed material facts from the court. The procedure adopted
by the learned 1st appellate court in the matter of additional evidence is
contrary to the aforesaid judgements passed by the Hon'ble Supreme
Court reported in (2018) 4 SCC 659 (supra) and (2018) 9 SCC 445
(supra).
44. Accordingly, while answering the 2nd and the 3rd substantial
question of law, this Court holds that the learned 1st Appellate court
has committed an error of law by reversing the judgment & decree of
the Trial Court on the basis of additional evidence led by
appellant/defendant and also holding that the plaintiff suppressed
material facts from the court without granting opportunity of rebuttal
to the plaintiff. The learned 1st appellate court has committed serious
jurisdictional error in not giving any opportunity to the plaintiff to lead
evidence to rebut the additional evidence and any inference arising from
existence of additional evidence. It was certainly open to the learned 1st
appellate court either to resort to the provisions of Order 41 Rule 23A
or Order 41 Rule 25 CPC before passing the impugned judgment of
reversal on the basis of additional evidence placed on record under
Order 41 Rule 27 C.P.C. The substantial questions of law no. (ii) and
(iii) are accordingly answered in favour of the appellant (plaintiff)
and against the respondents (defendants).
45. As a cumulative effect of the aforesaid findings, the impugned
judgement of the learned 1st appellate court is set-aside and the 1st
appeal is restored so as to enable the learned 1st appellate court to act
in accordance with law with respect to the additional evidence and
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issues arising therefrom in the light of the answer to the substantial
questions of law and proceed in accordance with law.
46. The parties to appear before the learned 1st appellate court on
5th of January 2026 at 11.00 a.m. and to cooperate in expeditious
disposal of the 1st appeal within 6 months thereafter.
47. This second appeal is allowed in the aforesaid terms.
48. Pending Interlocutory applications, if any, are dismissed as not
pressed.
49. Let this judgement be communicated to the concerned courts
through 'FAX/e-mail'.
(Anubha Rawat Choudhary, J.)
25.11.2025
Mukul
Uploaded On: 25.11.2025
