Karnataka High Court
Smt Chandra Bai W/O Bheema Naik vs Abdul Kluddus S/O Abdulsubhabn on 25 July, 2024
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 2883 OF 2007
BETWEEN
SMT. CHANDRA BAI
SINCE DEAD BY HER LRS
1(A) SMT. KAVITHA BAI
W/O LATE SRI. R.VIJAYKUMAR
AGED ABOUT 38 YEARS
1(B) R. THANESH NAIK
S/O LATE SRI. R VIJAYKUMAR
AGED ABOUT 23 YEARS,
1(C) R NETHRAVATHI
D/O LATE SRI, R. VIJAYKUMAR
AGED ABOUT 16 YEARS,
REPRESENTED BY HER NATURAL GUARDIAN,
MOTHER, SMT. KAVITHA BAI
1(D) SMT. JANAKI BAI
W/O LATE STI R. KEDARNATH NAIK
AGED ABOUT 38 YEARS
1(E) R CHINNU BAI
D/O LATE SRI. R KRISHNA NAIK
AGED ABOUT 16 YEARS,
REPRESENTED BY HER GUARDIAN,
SMT. JANAKI BAI.
APPELLANTS NO.1 TO 5 ARE
R/O HOUSE NO.131, WARD NO.23,
OPP. MARWADI GANESH TEMPLE,
COWL BAZAR, BALLARI DISTRICT-583102.
2
1(F) L.G.LAKSHMI BAI
W/O C G RAMA NAIK,
AGED ABOUT 64 YEARS,
R/O KALLAHALLI VILLAGE,
HOSAPETE TALUK,
VIJAYANAGARA DISTRICT-583201.
...APPELLANTS
(BY SRI RAGHAVENDRA RAO &
V. VODUA IYER, ADVOCATES FOR PROPOSED A1(A),
A1(B),(D)E,F, A1(C) IS MINOR REPTD.BY A1(A))
AND
1. ABDUL KHUDDUS S/O ABDUL SUBHAN,
AGED 42 YEARS, R/O NO.131/2,
KUNITHANA MAIN ROAD, COWL BAZAR,
BELLARY DIST-583104.
2. SMT. S.JAYA BAI W/O LATE SRI. R.RAMANJINAPPA
AGED ABOUT 53 YEARS,
R/O CHALLAKERE TALUK, KEREYAGALAHALLI,
CHITRADURGA DISTRICT-577543.
3. R. VASANTH NAIK
S/O LATE SRI. R. RAMANJINAPPA
AGED ABOUT 27 YEARS,
R/O #29, BELAGAL CROSS,
COWL BAZAR, BALLARI,
BALLARI DISTRICT-583102.
4. R BHARATHI BAI
D/O LATE SRI R. RAMANJINAPPA
AGED ABOUT 26 YEARS,
R/O KEREYAGALAHALLI TALUK,
CHITRADURGA DISTRICT-577543.
5. R. HARISH NAIK,
S/O LATE SRI. R RAMANJINAPPA
AGED ABOUT 24 YEARS
R/O #131, NEAR HITTINA CIRANI,
KEREYAGALAHALLI, THIMMAPPAIAHNAHALLI,
CHALLAKERE TALUK,
CHITRADURGA DISTRICT-577543.
3
6. R DHANAMMA BAI
W/O K. DURGYA NAIK,
AGED ABOUT 70 YEARS,
R/O WARD NO.27 D, NO.131,
MAIN ROAD, OPP. MARVADI GANESHA
TEMPLE COWL BAZAR BALLARI
BALLARI DISTRICT-583102.
7. R. RUKMINI BAI
W/O MD NAYEEM,
AGED ABOUT 48 YEARS,
R/O BESIDE SEVALAL COMPLEX,
BELAGAL ROAD, BELAGAL CROSS,
BALLARI DISTRICT-583102.
...RESPONDENTS
(SMT. PALLAVI S. PACHCHAPURE, ADVOCATE
SRI SRINAND A. PACHHAPURE,
SRI RAJENDRA R. PATIL, ADVOCATE FOR R1(BY GPA HOLDER);
SRI H.R.DESHPANDE & USHA H. DESHPANDE, ADEVOCATE FOR R1;
NOTICE TO T2 TO 7 ARE SERVED)
THIS RSA IS FILED U/S. 100 OF THE CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE PASSED BY THE II ADDITIONAL
CIVIL JUDGE (JR.DN.), BALLARY IN O.S.NO.370/2001 DATED
21.01.2004 AND ALSO THE JUDGMENT AND DECREE PASSED BY THE
PRINCIPAL CIVIL JUDGE (SR.DN.) AND CJM, BELLARY IN
R.A.NO.21/2004 DATED 24.07.2007 ALLOW THIS APPEAL WITH COSTS
AND GRANT SUCH OTHER RELIEFS.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS
ON 24.07.2024 COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
4
JUDGMENT
The present second appeal is filed under Section 100 of
the Code of Civil Procedure, 19081 by the defendant
challenging the judgment and decree dated 24.07.2007
passed in R.A.No.21/2004 by the Principal Senior Civil Judge
and CJM, Ballari2 and the judgment and decree dated
21.01.2004 passed in O.S.No.370/2001 by the II Additional
Civil Judge, Ballari3, wherein the suit for declaration and
possession has been decreed by the Trial Court which has
been affirmed by the First Appellate Court.
2. The parties herein are referred to as per their
ranking before the Trial Court for the sake of convenience.
3. It is the case of the plaintiff that he is the
absolute owner of the house property bearing door
no.131/2, ward No.XXIII situated at Khunithana Main Road,
Cowl Bazar, Bellary measuring 11½ feet X 57 feet4 having
Hereinafter referred to as the 'CPC'
Hereinafter referred to as the 'First Appellate Court'
Hereinafter referred to as the 'Trial Court'
Hereinafter referred to as the 'Suit property'
purchased the same from his vendor Rahamath Bee on
31.03.1990 for valuable consideration. It is the further case
of the plaintiff that his vendor was the absolute owner of the
larger extent of property being entire property bearing no.
131, having purchased the same vide registered Sale Deed
dated 22.08.1969. That his vendor sold 15½ feet x 57 feet
to the defendant under the registered Sale Deed dated
22.08.1969 and retained the remaining portion of 11½ feet
x 57 feet in the said survey number. That his vendor
Rahamath Bee subsequently sold the portion retained by
him to various persons and thereafter the said Rahamath
Bee once again purchased the same and subsequently the
plaintiff purchased the said 11½ feet and 57 feet retained by
the said Rahamath Bee under the Sale Deed dated
31.03.1990 and that he was put in possession of the
property purchased by him on the said date.
4. It is the further case of the plaintiff that he let out
the property purchased by him to tenants and after the
tenants vacated the premises, he brought some materials to
effect repairs in the suit property. The defendant objected
and stated that he has no right to do so. That since there
was some dispute regarding boundaries, to avoid
confrontation, he made an application to ADLR, Ballari for
fixing the boundaries and defendant filed objections on the
proceedings.
5. It is the further case of the plaintiff that certain
mistakes were noticed and he requested his vendor to
rectify the same by way of a Rectification Deed. That though
the vendor agreed to rectify the same, at the instance of the
defendant and her husband, the said rectification deed was
not registered by the Sub-Registrar. It is further contended
that the plaintiff thereafter approached the Hon'ble High
Court, consequent to which the Rectification Deed was
registered.
6. It is the further case of the plaintiff that in the
year 1997, the defendant took advantage of the absence of
the plaintiff and illegally entered into possession of the suit
property and since then he has been in possession of the
suit property. That the proceedings under Section 145 of
Code of Criminal Procedure were initiated against the
defendant and himself, which was quashed by the District
Judge.
7. It is further averred in that in the year 1998, the
plaintiff filed a suit for injunction against the defendant and
the same was dismissed by the Trial Court and during the
pendency of the regular appeal, the plaintiff got the same
withdrawn and filed the present suit for declaration and
possession.
8. The defendant entered appearance in the suit and
contested the case of the plaintiff and filed written
statement denying the case of the plaintiff. It is the
contention of the defendant that she has purchased the
property in her possession as also the property alleged to
have been purchased by the plaintiff right and has been in
possession from 1969 till the date of the suit. The defendant
has denied that she took forcible possession as averred by
the plaintiff. It is further contended that the suit is bad for
non-joinder of parties.
9. It is the specific case of the defendant that she
purchased the entire property including the suit property
and that she continues to be in possession and that her
vendor played fraud at the time of execution of the Sale
Deed. Hence, it is contended that the Sale Deed of the
plaintiff is void and cannot be enforced.
10. The Trial Court, consequent to the pleadings of
the parties, framed the following issues and additional
issues:
"1. Whether the plaintiff proves that he is the
absolute owner of the suit schedule property?
2. Whether the plaintiff proves that the defendant
around the end of year 1997, has illegally entered into
possession of suit schedule property?
3. Whether the plaintiff is entitled for the mesne
profit?
4. Whether plaintiff is entitled for the relief sought for
in the plaint?
5. What order or decree?
Addl. Issue No.1 Whether the defendant proves that
she is in possession and enjoyment of schedule
property since 22.8.69 to 1997 without any bodies
interference?
Addl.Issue framed on 7.3.2002"
1) Whether defendant proves that the suit is bad for
non-joinder of necessary parties?"
11. The PA holder of the plaintiff is examined as
PW.1. Exs.P.1 to P.13 have been marked in evidence. The
PA holder of the defendant is examined as DW.1. Three
witnesses have been examined as DW.2 to DW.4. However,
the defendants No.2 and 3 did not appear for cross-
examination. Exs.D.1 to D.52 have been marked in
evidence.
12. The Trial Court by its judgment and decree dated
21.01.2004, decreed the suit and passed the following
order:
"The suit of the plaintiff is hereby decreed with
costs.
It is held that the plaintiff is the absolute owner
of the suit property.
The defendant is hereby directed to vacate and
hand over the vacant possession of schedule property
to the plaintiff within one month from the date of
judgment and decree.
As far as mesne profit is concerned, the plaintiff
is at liberty to initiate separate proceedings for its
determination.
Draw decree accordingly."
13. Being aggrieved, the defendant preferred
R.A.No.21/2004. The plaintiff entered appearance before the
First Appellate Court and contested the same. The First
Appellate Court framed the following points for
consideration:
"1.Whether plaintiff-respondent proves that, he is the
owner of the suit property?
2. Whether defendant-appellant proves that, he has
got possessory title over the suit property and under
the sale deeds executed by vendor's vendor of the
plaintiff, plaintiff will not get any title?
3. Whether the trial court has committed any error
apparent on the face of records and interference by
this court in judgment and decree passed by trial
court is necessary?
4. What order?"
14. The First Appellate Court by its judgment and
decree dated 24.07.2007, dismissed the appeal filed by the
defendant and confirmed the judgment and decree passed
by the Trial Court. Being aggrieved, the present second
appeal is filed.
15. This Court vide order dated 25.07.2012, admitted
the above appeal and framed the following substantial
question of law:
"Whether the suit is barred under Order 2 Rule 2 of
the CPC, having regard to the judgment and decree in
O.S.No.9/1998 dated 2.11.1999"
16. Along with the above appeal, the appellant has
filed I.A.No.1/2012 under Order XLI Rule 27 of the CPC
seeking to produce certified copies of pleadings, depositions
of PW.1 to PW.3 and judgment and decree passed in
O.S.No.9/1998. In the affidavit filed in support of the said
application, the deceased appellant has deposed that the
respondent/plaintiff had filed O.S.No.9/1998 for injunction
which suit was dismissed on 02.11.1999 and
R.A.No.102/1999 filed by the respondent was dismissed as
not pressed. Hence, it is contended that the present suit
filed by the respondent is not maintainable in view of Order
II Rule 2 of the CPC. That ignoring the same, both the
Courts have decreed the suit of the respondent. It is further
deposed that the deponent is an illiterate person and was
not aware of the fact that the pleadings in O.S.No.9/1998
was required to be produced and hence the same could not
be produced as an additional evidence before the Court. It is
further deposed that despite due diligence, as she had the
disability of illiteracy, the documents could not be produced.
That if the appellant is not permitted to produce the
documents, they will be put to great hardship.
17. The respondent has filed objections to the said
application, wherein it is contended that the GPA holder of
the appellant was examined before the Trial Court on the
ground that the appellant was unwell and there was no
impediment for production of the documents before the Trial
Court. It is further contended that since there was no due
diligence, the application is required to be dismissed.
18. The original appellant/defendant died during
pendency of the present appeal and her legal
representatives have come on record and are prosecuting
the appeal.
19. Learned counsel, Smt.V.Vidya Iyer appearing for
the appellants/defendants contends that the Order XLI Rule
27 of the CPC entitles the Court to allow the application if
substantial cause is demonstrated. It is further contended
that the documents produced are certified copies of the
earlier round of litigation between the parties. That the
appellant being an illiterate litigant, despite due diligence,
the said documents could not be produced before the Trial
Court. That the pleading in the earlier suit and in the
subsequent suit are the same and hence the present suit
filed by the appellant is clearly barred under Order II Rule
2(3) of the CPC.
20. It is further contended that the
respondent/plaintiff having averred in the plaint regarding
the earlier round of litigation, the said documents sought to
be produced vide the applicantation does not take the
respondent/plaintiff by surprise. Hence, she seeks for
allowing of the application as well as the appeal. In support
of her contention, she relies on the following judgments:
i. Union of India vs. K.V. Lakshman and
Others5
(2016) 13 SCC 124
ii. Sanjay Kumar Singh vs. State of
Jharkhand6
21. Per contra, learned counsel, Smt.Pallavi
Pachhapure appearing for the respondent/plaintiff opposing
the application as well as the appeal contends that there
was no plea in the written statement or in the amended
written statement and hence no issue is framed by the Trial
Court regarding the suit being barred under Order II Rule 2
of the CPC. It is further contended that the same advocate
conducted the proceedings in the earlier suit as well as the
subsequent suit and hence it cannot be stated that the
appellant did not have knowledge. It is further contended
that without a plea, there is no question of the application
being allowed and the appellant being permitted to produce
additional evidence. That in the event of a plea having been
raised, it was open for the defendant to demonstrate that
the cause of action of the two suits was not the same.
Hence, the appellant cannot be permitted to urge the said
(2022) 7 SCC 247
ground that the suit is barred under Order II Rule 2 of the
CPC at the present stage of second appeal and that the
application filed by the appellant under Order XLI Rule 27 of
the CPC as well as the appeal is required to be dismissed. In
support of her contentions, she relies on the following
judgments:
i. Gurbux Singh vs. Bhooralal7
ii. M/s. Bengal Waterproof Limited vs. M/s
Bombay Waterproof Manufacturing
Company8
iii. Bachhaj Nahar vs. Nilima Mandal and
Another9
22. The submissions made by both the learned
counsels have been considered and the material on record
has been perused.
23. Having regard to the substantial question of law
framed by this Court, the only aspect that is required to be
AIR 1964 SC 1810
AIR 1997 SC 1398
considered is as to whether the suit filed by the
respondent/plaintiff from which the present second appeal
arises is barred under Order II Rule 2 of the CPC. In order to
consider the same, it is relevant to first notice Order II Rule
2 of the CPC which reads as follows:
"2. Suit to include the whole claim.--(1) Every suit
shall include the whole of the claim which the plaintiff
is entitled to make in respect of the cause of action;
but a plaintiff may relinquish and portion of his claim
in order to bring the suit within the jurisdiction of any
Court.
(2) Relinquishment of part of claim.--Where a plaintiff
omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not
afterwards sue in respect of the portion so omitted or
relinquished.
(3) Omission to sue for one of several reliefs.--A
person entitled to more than one relief in respect of
the same cause of action may sue for all or any of
such reliefs; but if he omits, except with the leave of
the Court, to sue for all such reliefs, he shall not
afterwards sue for any relief so omitted.
Explanation.--For the purposes of this rule an
obligation and a collateral security for its performance
and successive claims arising under the same
obligation shall be deemed respectively to constitute
but one cause of action."
(emphasis supplied)
2008 (17) SCC 491
24. It is clear from the above provision that only if the
cause of action in the earlier suit and the subsequent suit
are one and the same, it can be held that subsequent suit is
barred under Order II Rule 2 of the CPC.
25. Admittedly, in the present case, the defendant
has not raised the plea in the written statement or in the
additional written statement that the suit is barred under
Order II Rule 2 of the CPC and admittedly, there is no issue
framed in that regard. It is further relevant to note that the
respondent/plaintiff has specifically averred in the plaint that
the earlier suit in O.S.No.9/1998 for injunction was filed by
him which was dismissed and the appeal filed in
R.A.No.102/1999 against the same was dismissed as not
pressed.
26. It is also relevant to note that the
appellant/defendant has not raised the ground that the
subsequent suit is barred under Order II Rule 2 of the CPC
even before the First Appellate Court. Hence, it is clear that
the present ground that the subsequent suit filed by the
respondent/plaintiff is barred under Order II Rule 2 of the
CPC is being raised for the first time in the present second
appeal and for the purpose of considering the said
ground/contention, the appellants rely upon the documents
produced along with the application.
27. In support of the contention that in the absence of
a plea the contention that the suit is barred under Order II
Rule 2 of the CPC cannot be taken, the learned counsel for
the respondent/plaintiff relies on the Constitution Bench
judgment of the Hon'ble Supreme Court in the case of
Gurbux Singh6, wherein it has been held as follows:
"6. In order that a plea of a bar under O. 2 R. 2(3),
Civil Procedure Code should succeed the defendant
who raises the plea must make out (1) that the
second suit was in respect of the same cause of action
as that on which the previous suit was based; (2) that
in respect of that cause of action the plaintiff was
entitled to more than one relief, (3) that being thus
entitled to more than one relief the plaintiff, without
leave obtained from the Court omitted to sue for the
relief for which the second suit had been filed. From
this analysis it would be seen that the defendant
would have to establish primarily and to start with,
the precise cause of action upon which the previous
suit was filed, for unless there is identity between the
cause of action on which the earlier suit was filed and
that on which the claim in the later suit is based there
would be no scope for the application of the bar. No
doubt, a relief which is sought in a plaint could
ordinarily be traceable to a particular cause of action
but this might, by no means, be the universal rule. As
the plea is a technical bar it has to be established
satisfactorily and cannot be presumed merely on basis
of inferential reasoning. It is for this reason that we
consider that a plea of a bar under O. 2 R. 2, Civil
Procedure Code can be established only if the
defendant files in evidence the pleadings in the
previous suit and thereby proves to the Court the
identity of the cause of action in the two suits. It is
common ground that the pleadings in C. S. 28 of 1950
were not filed by the appellant in the present suit as
evidence in support of his plea under O. 2 R. 2, Civil
Procedure Code. The learned trial Judge, however,
without these pleadings being on the record inferred
what the cause of action should have been from the
reference to the previous suit contained in the plaint
as a matter of deduction. At the sage of the appeal
the learned District Judge noticed this lacuna in the
appellant's case and pointed out, in our opinion,
rightly that without the plaint in the previous suit
being on the record, a plea of a bar under O. 2 R. 2,
Civil Procedure Code was not maintainable."
(emphasis supplied)
28. Learned counsel for the respondent/plaintiff
further relies on the judgment of the Hon'ble Supreme Court
in the case of Bengal Waterproof Limited7, wherein, upon
noticing the judgment of the Constitution Bench of the
Hon'ble Supreme Court in the case of Gurbux Singh6 it has
been held as follows:
"6. ..................... Thus there is a complete bar against
the defendants from raising the bar of O. 2, R. 2 sub-
rule (3) against the plaintiff in the present case. In
this connection, we may refer to one submission made
by the learned counsel for the defendants which
appealed to the learned single Judge of the High
Court. He submitted that the averments in the plaintiff
were that the first suit was misconceived and proper
relief was not prayed for. Therefore, it can be inferred
that the second suit was hit by the bar of O.2, R.2,
sub-rule (3), C.P.C. and he further submitted that at
lot the counter filed in reply to Special Leave Petition
the defendants have produced the copy of the plaint in
the first suit. We fail to appreciate how this effort on
the part of the defendants can of any avail to them.
Firstly, the Constitution Bench of this court in Gurbux
Singh's case (AIR 1964 SC 1810) (supra) has clearly,
ruled that there cannot be any inference about the bar
of O.2, R. 2. Sub-rule (3) was not available to the
defendants in the suit in the absence of the pleadings
in the earlier suit being brought on the record by them
in support of their case before the Trial Court they had
missed the bus especially when even before the High
Court no attempt was made by the defendents to
produce the pleadings in the earlier suit by way of an
application for additional evidence. Therefore, it is too
late in the day of the defendants to contend that along
with counter in the Special Leave Petition before us
they had produced the copy of the plaint in the earlier
suit. In the light of the clear pronouncement of the
Constitution Bench in the case of Gurbux Singh (AIR
1964 SC 1810) (sunra), it must be held that it was not
open to the defendants to raise the contention of the
bar of O. 2. R. 2. sub-rule (3) C.P.C. in the present
case and, therefore, the learned single Judge of the
High Court was clearly in error in non-suiting the
plaintiff on that ground."
(emphasis supplied)
29. It is clear from the aforementioned that in the
absence of a plea taken in the written statement, the
appellants cannot be permitted to raise the contention that
the subsequent suit filed by the respondent is barred under
Order II Rule 2 of the CPC.
30. Learned counsel for the appellants referring to the
judgment of the Hon'ble Supreme Court in Bengal
Waterproof Limited7, wherein an observation is made that
no attempt was made to produce the pleadings of the earlier
suit by way of an application for additional evidence,
contends that having regard to the fact that under Order XLI
Rule 27 of the CPC, the Court is entitled to permit
production of additional evidence if 'substantial cause' is
made out and submits that the defendant being an illiterate,
the same tantamounts to the substantial cause and hence
the I.A.No.1/2012 is required to be allowed.
31. In order to consider the said contention, it is
relevant to notice Order XLI Rule 27 of the CPC which reads
as follows:
"Rule 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 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 examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record
the reason for its admission."
(emphasis supplied)
32. The Hon'ble Supreme Court in the case of Union
of India4 relied upon by the learned counsel for the
appellants, has held as follows:
"7) The Trial Court vide judgment/decree dated
11.12.2001 dismissed the suit on two grounds. It was
held that the suit is barred by limitation. It was further
held that the plaintiff (the appellant) failed to prove
their title over the suit land for want of adequate
evidence whereas the defendants (respondents) were
able to prove their title over the suit land.
8) The appellant, felt aggrieved, filed first appeal
before the High Court. In the appeal, the appellant
filed an application under Order 41 Rule 27 of the
Code of Civil Procedure, 1908 (hereinafter referred to
as "the Code") and sought permission to adduce
additional evidence in support of their case. The
additional evidence inter alia consisted of documents
issued by the State Land Revenue department in
relation to the suit land. According to the appellant,
these documents were relevant and material for
deciding the ownership issue and if properly examined
along with the documents already filed in the suit,
would establish the appellant's title over the suit land
to the exclusion of every one including the
respondents. It was further alleged that the appellant
was not able to file these documents in the Trial Court
because firstly, these documents were old; Secondly,
the appellants came to know of these documents after
the decision was rendered in the civil suit; and lastly,
since the documents were traced recently with great
difficulty and being in the nature of public documents,
the appellant be allowed to file them so as to enable
the Court to properly decide the issue of ownership in
relation to the suit land.
32. This takes us to the next question in relation to
the application filed under Order 41 Rule 27 of the
Code. In our considered view, the High Court
committed another error when it rejected the
application filed by the appellant under Order 41 Rule
27 of the Code. This application, in our opinion, should
have been allowed for more than one reason.
33. First, there was no one to oppose the application.
In other words, the respondents were neither served
with the notice of appeal and nor served with the
application and hence they did not oppose the
application. Second, the appellant averred in the
application as to why they could not file the additional
evidence earlier in civil suit and why there was delay
on their part in filing such evidence at the appellate
stage. Third, the averments in the application were
supported with an affidavit, which remained un-
rebutted. Fourth, the application also contained
necessary averment as to why the additional evidence
was necessary to decide the real controversy involved
in appeal. Fifth, the additional evidence being in the
nature of public documents and pertained to suit land,
the same should have been taken on record and
lastly, the appellant being the Union of India was
entitled to legitimately claim more indulgence in such
procedural matters due to their peculiar set up and
way of working.
34. It was for all these reasons, we are of the view
that the application filed by the appellant under Order
41 Rule 27 of the Code deserved to be allowed and is
accordingly allowed by permitting the appellant to file
additional evidence.
35. The learned counsel for the respondents, however,
contended that the additional evidence is not relevant
for deciding the appeal/suit. He also urged that the
appellant has not pleaded any cause as required under
Order 41 Rule 27 to file such evidence at the appellate
stage. We are not impressed by this submission in the
light of the reasons given supra. This submission is
accordingly rejected.
36. Order 41 Rule 27of the Code is a provision which
enables the party to file additional evidence at the first
and second appellate stage. If the party to appeal is
able to satisfy the appellate court that there is
justifiable reason for not filing such evidence at the
trial stage and that the additional evidence is relevant
and material for deciding the rights of the parties
which are the subject-matter of the lis, the court
should allow the party to file such additional evidence.
After all, the court has to do substantial justice to the
parties. Merely because the court allowed one party to
file additional evidence in appeal would not by itself
that the court has also decided the entire case in its
favour and accepted such evidence. Indeed once the
additional evidence is allowed to be taken on record,
the appellate court is under obligation to give
opportunity to the other side to file additional
evidence by way of rebuttal."
(emphasis supplied)
33. The Hon'ble Supreme Court in the case of Sanjay
Kumar Singh5 relied upon by the learned counsel for the
appellant, has held as follows:
"7. It is true that the general principle is that the
appellate court should not travel outside the record of
the lower court and cannot take any evidence in
appeal. However, as an exception, Order 41 Rule 27
CPC enables the appellate court to take additional
evidence in exceptional circumstances. It may also be
true that the appellate court may permit additional
evidence if the conditions laid down in this Rule are
found to exist and the parties are not entitled, as of
light, to the admission of such evidence. However, at
the same time, where the additional evidence sought
to be adduced removes the cloud of doubt over the
case and the evidence has a direct and important
bearing on the main issue in the suit and interest of
justice clearly renders it imperative that it may be
allowed to be permitted on record, such application
may be allowed. Even, one of the Circumstances in
which the production of additional evidence under
Order 41 Rule 27 CPC by the appellate court is to be
considered is, whether or not the b appellate court
requires the additional evidence so as to enable it to
pronounce judgment or for any other substantial
cause of like nature.
8. As observed and held by this Court A.in A.
Andisamy Chettiar v. A. Subburaj Chettiar, the
admissibility of additional evidence does not depend
upon the relevancy to the issue on hand, or on the
fact, whether the applicant had an opportunity for
adducing such evidence at an earlier stage or not, but
it depends upon whether or not the appellate court
requires the evidence sought to be adduced to enable
it to pronounce judgment or for any other substantial
cause. It is further observed that the true test,
therefore is, whether the appellate court is able to
pronounce judgment on the materials before it without
taking into consideration the additional evidence
sought to be adduced."
(emphasis supplied)
34. Opposing, consideration of the application,
learned counsel for the respondent/plaintiff relies on the
judgment of the Hon'ble Supreme Court in the case of
Bachhaj Nahar8, wherein it has been held as follows:
"8. The High Court, in this case, in its obvious zeal to
cut delay and hardship that may ensue by relegating
the plaintiffs to one more round of litigation, has
rendered a judgment which violates several
fundamental rules of civil procedure. The rules
breached are:
(i) No amount of evidence can be looked into, upon a
plea which was never put forward in the pleadings. A
question which did arise from the pleadings and which
was not the subject matter of an issue, cannot be
decided by the court.
(ii) A Court cannot make out a case not pleaded. The
court should confine its decision to the question raised
in pleadings. Nor can it grant a relief which is not
claimed and which does not flow from the facts and
the cause of action alleged in the plaint.
(iii) A factual issue cannot be raised or considered for
the first time in a second appeal.
Civil Procedure Code is an elaborate codification of the
principles of natural justice to be applied to civil
litigation. The provisions are so elaborate that many
time, fulfillment of the procedural requirements of the
Code may itself contribute to delay. But any anxiety to
cut the delay or further litigation, should not be a
ground to float the settled fundamental rules of civil
procedure."
(emphasis supplied)
35. Having regard to the settled position of law as
noticed above as well as the factual matrix of the matter, it
is clear that the plaintiff has averred regarding the earlier
suit for injunction filed by him in the plaint. It is further clear
that the defendant has not raised a plea either in the written
statement or in the amended written statement nor has a
ground been urged before the First Appellate Court that the
suit filed by the plaintiff is barred under Order II Rule 2 of
the CPC, since the cause of action of the earlier suit for
injunction and the present suit for declaration and
possession are one and the same.
36. Although it is the vehement contention of the
learned counsel for the appellants that the cause of action of
the earlier suit and the subsequent suit is one and the same,
which is clearly evident from the plaint and other material of
O.S.No.9/1998 which is sought to be produced along with
I.A.No.1/2012, a plea that a subsequent suit is barred under
Order II Rule 2 is a question of fact that is required to be
considered after noticing the pleadings in the earlier suit and
the subsequent suit. The said question of fact can be
adjudicated upon only after affording an opportunity to both
the parties to adduce their evidence regarding the same and
to cross-examine the other party with regard to the said
aspect of the matter.
37. In the present case, the fact that the
appellants/defendant has not raised a plea that a
subsequent suit is barred under Order II Rule 2 is
detrimental to the case of the appellants. The endeavor of
the appellants to raise the said plea by producing the
pleadings and other documents pertaining to the earlier suit
by filing an application under Order XLI Rule 27 of the CPC
is not liable to be considered having regard to the judgment
of the Hon'ble Supreme Court in the case of Bachhaj
Nahar8 wherein it has been held that no evidence can be
looked into in the absence of a plea. Hence, in the absence
of the defendant taking a plea that the subsequent suit is
barred under Order II Rule 2 of the CPC, the question of
favourably considering I.A.No.1/2012 does not arise.
38. The vehement contention of the learned counsel
for the appellants by placing reliance on the observation
made by the Hon'ble Supreme Court in the case of Bengal
Waterproof Limited7 with regard to an attempt being
made by filing an application for additional evidence, will not
aid the case of the appellants having regard to the fact that
a plea of a subsequent suit being barred under Order II Rule
2 of the CPC is a factual one and it is always open to the
plaintiff who institutes the subsequent suit to demonstrate
that the subsequent suit is not founded on the same cause
of action. Denying the plaintiff such an opportunity would be
contrary to the law.
39. It is further relevant to note the plea that the suit
is barred Under Order II Rule 2 of the CPC is being raised for
the first time in the present second appeal and hence the
same cannot be considered.
40. Although the Court is vested with wide powers to
permit production of additional evidence, having regard to
the scope of Order XLI Rule 27 of the CPC, in view the
admitted position in the present case that no plea has been
raised, the question of favourably considering I.A.No.1/2012
does not arise. Further, it is relevant to note that the
defendant was represented by her husband as the PA holder
who has adduced evidence in the suit. The affidavit
accompanying the application merely states that the
defendant is an illiterate. There are no reasons set out as to
why the husband of the defendant who had represented the
defendant before the trial Court did not take the requisite
plea regarding the suit being barred under Order II Rule 2 of
the CPC has not been stated.
41. Further, as rightly pointed out by the learned
counsel for the respondent/plaintiff, the counsel who
represented the present appellant/defendant in the earlier
suit in O.S.No.9/1998 as well as in the present suit in
O.S.No.370/2001 are the same. Hence, the contention of
the appellants that due to she being an illiterate litigant, the
documents could not be produced either before the Trial
Court or the First Appellate Court, cannot be accepted.
42. In view of the discussions made above,
I.A.No.1/2012 is liable to be dismissed and the substantial
question of law framed by this Court is answered in the
negative.
Hence, the following:
ORDER
i. I.A.No.1/2012 filed by the appellant under
Order XLI Rule 27 of the CPC is
dismissed;
ii. The above appeal is dismissed;
iii. The judgment and decree dated
24.07.2007 passed in R.A.No.21/2004 by
the Principal Civil Judge(Sr.Dn.) and CJM,
Bellary is affirmed;
iv. The judgment and decree dated
21.01.2004 passed in O.S.No.370/2001
by the II Additional Civil Judge (Jr.Dn.),
Bellary is affirmed.
Sd/-
JUDGE
PMP/ BS
