Madhya Pradesh High Court

Mahila Shyambai Ahirwar vs Gotiram Ahirwar on 13 July, 2021

Author: Rajeev Kumar Dubey

                                                                                    1                  M.A.No.2902 of 2020

                                                    HIGH COURT OF MADHYA PRADESH
                                                         PRINCIPAL SEAT AT JABALPUR

                                  Single Bench :        Hon'ble Shri Rajeev Kumar Dubey, J.

                                                             Misc. Appeal No.2902 of 2020
                                                          Mahila Shyambai Ahirwar & Others
                                                                              vs.
                                                                Gotiram Ahirwar & Others
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                                  Shri Nilesh Kotecha, counsel for the appellants.

                                  Shri Umesh Trivedi, counsel for the respondent No.1.

                                  Shri Ramji Pandey, Panel Lawyer for the respondent No.5/State..

                                  --------------------------------------------------------------------------------------------

                                                                     JUDGMENT

Reserved on : 23/06/2021 Delivered on : 13/07/2021

This Misc. Appeal has been filed under Order XLIII Rule 1 (u) of Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") against the judgment and decree dated 17.03.2020 passed by Fifth Additional District Judge, Tikamgarh in Civil Appeal No.48/2018 whereby learned Additional District Judge after allowing the application of respondents (defendants No.1 to 4 of the suit) filed under Order XLI Rule 27 of CPC set-aside the judgment and decree dated 31/08/2018 passed by First Civil Judge Class II, Tikamgarh in Civil Suit No.53A/2014 and remanded the case to trial court with a direction to take the documents on record filed by the respondents (Defendants No.1 to 4 of the suit) along with the application filed under Order XLI Rule 27 of CPC and record the evidence of both the parties regarding the documents thereafter again pass the judgment.

2. Brief facts of the case which are relevant to the disposal of this

Signature Not Verified miscellaneous appeal are that appellants/plaintiffs filed Civil Suit SAN

No.53A/2014 in the Court of First Civil Judge Class II, Tikamgarh seeking a Digitally signed by ANURAG SONI Date: 2021.07.13 17:57:15 IST

decree for declaration & injunction that they were the owner and possession holder of the agriculture land Survey No.61 Area 0.951 Hectare, Survey No.63 area 0.032 Hectare, Survey No.64 area 0.559 Hectare, Survey No.65 area 0.656, Survey No.67 area 0.178 Hectare and half part of Survey No.61/2433 area 0.020 hectare located at the village Kudila District Tikamgarh (hereinafter referred to as "suit land") making averments that earlier Guntu Ahirwar was the owner of the suit land. Guntu, whose wife had died, after the death of appellant No.1 Shyama Bai's husband Acchelal, had made Shyama Bai his wife. Sanju Ahirwar and Mamtabai are Shyama Bai's children who were born in the wedlock of Guntu Ahirwar. Thus the appellants are the heirs of Guntu and the owner of the disputed land. The respondents/defendants filed the written statement denying the averments and ownership of the plaintiffs and averred that Shyama Bai was not the wife of Guntu Ahirwar. Shyama Bai was the wife of Acchelal Ahirwar and plaintiff No.2 & 3 are the children of Acchelal and not of Guntu Ahirwar, so the plaintiffs have no share in the suit land.

3. In view of the pleadings, 5 issues were framed by the Trial Court and after appreciating the evidence on record, the trial Court came to the conclusion that plaintiffs are the heirs of Guntu Ahirwar and the owner of the suit land and decreed the suit vide judgment and decree dated 31/08/2018. Being aggrieved from that judgement and decree the respondent No.1 to 4 preferred the First Appeal before the Additional District Judge, Tikamgarh. During the pendency of the said appeal, respondents No.1 to 4 preferred an application under Order XLI Rule 27 of the CPC on 06/03/2020 for adducing additional evidence, i.e., Copy of registered sale deed of part of suit land executed by Guntu in favour of Babu and Achhelal, complaint filed by the respondent before Chief Election Commissioner, Bhopal (Madhya Pradesh) regarding manipulation in voter list got done by Shyama Bai and Bhu Adhikar pustika of Dharam Das and one punchnama made by Sarpanch Panchayat Lidhora. The said application was allowed by the First Appellate Court vide judgment and decree dated 17/03/2020 and remanded the case to Trial Court with a direction to take the documents on record filed by the Signature Not Verified SAN respondents (defendants No.1 to 4 of the suit) along with the application Digitally signed by ANURAG SONI Date: 2021.07.13 17:57:15 IST

filed under Order XLI Rule 27 of CPC and record the evidence of both the parties regarding the documents and thereafter again pass the judgment. Being aggrieved from that order appellants filed this Miscellaneous Appeal

4. Learned counsel for the appellants submitted that the documents filed by the respondents along with the application filed under Order XLI Rule 27 CPC were very old documents and those documents were in the possession of the respondents before filing of the suit. The respondents (defendants No.1 to 4 of the suit) did not assign any reason in the application filed under Order XLI Rule 27 of CPC as to why such documents could not be filed by them before the trial court during trial of the case. The respondents (defendants No.1 to 4 of the suit) did not even file any affidavit in support of their application. Learned trial court without appreciating these facts wrongly allowed the application.

5. On the contrary, learned counsel for the respondents opposed the prayer and submitted that the respondents in the application filed under Order XLI Rule 27 of CPC clearly assigned the reason as to why they could not file such documents during trial of the case. He further submitted that the documents filed by them along with the application were not in their knowledge, for the first time they came to know about those documents after filing of the appeal. Those documents are necessary for just decision of the case so it cannot be said that the appellants filed the application only to fill- up the lacuna. Earlier the respondents could not find those documents after due diligence so they could not produce those documents during trial of the case. Therefore, the learned trial court did not commit any mistake in taking the documents on record and allowing the respondents to produce the additional evidence regarding these documents. So, appeal be dismissed.

6. This Court has gone through the record and arguments put forth by both the parties. Apex court in the case of In Union of India v. Ibrahim Uddin (2012) 8 SCC 148 : held as under:

"49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the Signature Not Verified SAN evidence sought to be adduced have any relevance/bearing on the issues involved. The Digitally signed by ANURAG SONI Date: 2021.07.13 17:57:15 IST

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. 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."

7. The Apex court in the case of J. Balaji Singh v. Diwakar Cole, (2017) 14 SCC 207 has held as under :-

"There are three provisions in the Code which deal with the power of the appellate court to remand the case to the trial court. These provisions are Order 41 Rules 23, 23-A and 25:

14.1. So far as Order 41 Rule 23 is concerned, it enables the appellate court to remand the case to the trial court when it finds that the trial court has disposed of the suit upon a preliminary point. The appellate court in such cases is empowered to direct the trial court to decide all the issues on evidence on record.

14.2. So far as Rule 23-A is concerned, it enables the appellate court to remand the case to the trial court when it finds that though the trial court has disposed of the suit on all the issues but on reversal of the decree in appeal, a retrial is considered necessary by the appellate court.

14.3. So far as Rule 25 is concerned, it enables the appellate court to frame or try the issue if it finds that it is essential to the right decision of the suit and was not framed by the trial court. The appellate court in such a case may, accordingly, frame the issues and refer the same to the trial court to take the evidence and record the findings on such issues and return to the appellate court for deciding the appeal. In such cases, the appellate court retains the appeal to itself.

8. If we examine the judgement of the First appellate Court in the light of above pronouncement of the Apex Court, in the instant case the lower Appellate Court on consideration of the material on record and after hearing Signature Not Verified SAN the arguments framed the following points for consideration.:- Digitally signed by ANURAG SONI Date: 2021.07.13 17:57:15 IST

1. Whether the application submitted by appellants under Order XLI Rule 27 CPC is allowable.

2. Whether the judgment and decree passed by the trial Court is contrary to Evidence, law, and documentary evidence on record and it requires interference by this Court?

9. While answering point No. 1 learned the first Appellate Court held that from the registered sale deed filed by the appellants along with the application it appears that the some part of the suit land had already been sold by Guntu to Babu and Acchelal and other documents are Voter ID and Panchnama, and if the above documents are taken on record and through the documents, the case will be decided again on merits, then the circumstances of the case will change and the parties will be able to get the right justice. Consequently, the judgment and decree of the trial Court was set aside and the matter was remitted back for retrial.

10. From the above mentioned findings of trial court, it is clear that the First Appellate Court did not decide the appeal on merits and after such decision did not come to the conclusion that 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 or First Appellate Court finds that though the trial court has disposed of the suit on all the issues but on reversal of the decree in appeal, a retrial is necessary.

11. So in the considered opinion of this court, the First Appellate Court was not justified in remanding the case for fresh inquiry. When additional evidence is tendered in appeal, the lower Appellate Court should have acted under Order XLI Rules 27 to 29 CPC and ordinarily not remanded the whole case under Order XLI Rule 23A unless the First Appellate Court arrived at a finding that a re-trial of the case is necessary. So in the light of the aforesaid judgments of the Apex Court, the impugned judgment and decree of the First Appellate Court is wholly erroneous and requires to be set aside. Signature Not Verified SAN

12. Hence, the appeal is allowed and the judgment and decree of the First Digitally signed by ANURAG SONI Date: 2021.07.13 17:57:15 IST

Appellate Court passed in Civil Appeal No.48/2018 dated 17.03.2020 is hereby set aside without going into the merits as to whether the application under Order XLI Rule 27 of the CPC was rightly allowed by the appellate court and matter remanded back to the first appellate court with the direction that:-

(i) The First Appellate Court is directed to hear the appeal on merits first and then take up the application filed for production of additional evidence for consideration. If it is of the view that it is unable to pronounce the judgment on merits and cannot do complete justice between the parties, without these documents being taken on record, it has the discretion to allow the said application. However, after allowing such applications if the parties request that they may be permitted to adduce oral evidence, then the first Appellate Court itself shall record the oral evidence and in the light of such oral evidence and the oral evidence already on record and documentary evidence, dispose of the appeal on merits in accordance with law without resorting to any remand.