Ramroop Singh vs Siya Devi
2022 Latest Caselaw 3968 MP

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     IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
                                MA No. 511 of 2016
                         (RAMROOP SINGH Vs SIYA DEVI AND OTHERS)

Dated : 23-03-2022
      Shri N.K.Gupta, Sr.Advocate with Shri S.D.Singh, counsel for the appellant.
      Shri Sanjay Sharma, GA for the respondent no.3/State.

Shri Prashant Sharma, counsel for the respondents.

This misc. appeal has been filed by the appellant/plaintiff against the order dated 11.5.2016 passed by II ADJ, Bhind in Regular First Appeal No.19 of 2015 whereby, the appeal filed by the respondent/defendant assailing the judgment and

decree in favour of the plaintiff was partly allowed and the matter was remanded to the trial court for recording of evidence on the documents filed by the defendant under Order 41 Rule 27 of CPC before the appellate court and to decide the suit afresh thereafter.

The brief facts giving rise to this appeal are that appellant/plaintiff Ramroop Singh and proforma respondent Ganga Singh filed a civil suit against the respondents with the averments that one Ram Singh was owner of the disputed land who executed a will in their favour. After death of Ram Singh, they have become owner of the disputed property. Defendant/respondent Siya Devi with the

connivance of the revenue authorities, got the disputed land mutated in her name projecting herself to be the wife of Ram Singh. She is wife of one Dhan Singh and working as his wife in government service. After mutation, she executed a sale deed in favour of Munni Devi without any title. A prayer was made to declare the title of the disputed land in favour of the plaintiffs and to declare the registered sale deed executed in favour of defendant Munni Devi as null and void.

Respondent/defendant no.1 Siya Devi did not appear before the trial court and accordingly exparte proceedings were undertaken against her.

The respondent/defendant Munni Devi in her written statement denied the averment of the plaint and pleaded that Siya Devi was legally wedded wife of Ram Singh who after death of Ram Singh got mutated the disputed land in her favour. After mutation, she validly transferred the land by registered sale deed. Owner of the disputed land Ram Singh did not execute any will in favour of the plaintiffs. The suit deserves to be dismissed.

As many as seven issues were framed by the trial court and after recording of evidence of the parties, the suit was decreed in favour of the plaintiff. The mutation of the disputed land as well as the sale deed executed in favour of defendant Munni Devi was declared to be null and void. Respondent Munni Devi

preferred an appeal against the judgment and decree of the trial court. In appeal also, the respondent/defendant Siya Devi remained absent. Respondent/defendant Munni Devi filed an application under Order 41 Rule 27 of CPC before the lower appellate court for taking the voter list on record to establish the fact that defendant Siya Devi was legally wedded wife of deceased Ram Singh. Learned lower appellate court allowed the application and remanded the matter to the trial court for recording of evidence of both the parties and decide the suit afresh thereafter. Being aggrieved by the same, this misc. appeal has been preferred by appellant/plaintiff.

On the application filed by appellant herein, service of respondent/defendant no.1 Siya Devi was dispensed with in view of the fact that she remained absent in the suit as well as in first appeal.

As jointly prayed, the matter is finally heard on merits. Shri N.K.Gupta learned Sr.Advocate with Shri S.D.Singh Advocate submits that while remanding the matter to the trial court, learned first appellate court has not adhered to the relevant provisions contained in the order 41 Rule 23A and Rule 24 of CPC. The finding of the trial court with regard to the will has not been even considered by the appellate court. It has allowed the application filed under Order 41 Rule 27 of CPC in mechanical manner without appreciating the fact that requirement envisaged under Order 41 Rule 27 of CPC are not fulfilled. Defendant Siya Devi did not appear before the trial court. She has not submitted any written statement. She did not dare to give any evidence. The finding of the trial court that Siya Devi is not wife of Ram Singh has not been challenged by Siya Devi. The appellate court was not right in remanding the case on filing of the voters list of Siya Devi which could not have been taken on record against the provisions contained under Order 41 Rule 27 of CPC. The impugned order is per se illegal and perverse which deserves to be set-aside. He has placed reliance upon the

judgments Municipal Corporation, Hyderabad Vs. Sunder Singh reported in (2008) 8 SCC 485, H.P.Vedavyasachar Vs. Shivshankara and Others reported in (2009) 8 SCC 231, Union of India Vs. Ibrahim Uddin and Another reported in (2012) 8 SCC 148, Jegannathan Vs. Raju Sigamani and Others reported in (2012) 3 MPLJ 502, Murarilal Vs. Ram Kumar Ojha reported in (2015) 1 MPLJ 243 and Mohan Kumar Vs. State of M.P. and Others reported in (2017) 4 SCC 92.

Per contra, Shri Prashant Sharma, learned counsel for the respondent/defendant Munni Devi submits that once the appellant himself has filed

an application for dispensing with the service of Siya Devi, he is not competent to assail the order of the appellate court qua Siya Devi. Further, the document filed under Order 41 Rule 27 of CPC is a public document genuineness of which, cannot be questioned. The same is necessary to establish material fact of marriage of defendant Siya Devi with deceased Ram Singh. Defendant Munni Devi despite due efforts could not get the same during the trial. As soon as she obtained copy of the voter list, she produced the same under Order 41 Rule 27 of CPC. Learned first appellate court has remanded the matter back to the trial court where, due opportunity will be given to both the parties. Hence, no prejudice is going to be caused to the appellant/plaintiff. The appeal deserves to be dismissed.

Heard. Considered.

It is a well settled legal position as expounded in the above cited judgments that the matter cannot be remanded back for retrial by the appellate court until and unless, requirement envisaged under Order 41 Rule 23A and 24 of CPC are fulfilled. Likewise, as per the provisions of Order 41 Rule 27 of CPC, the parties to appeal are not entitled to produce any evidence except in the following circumstances :

"(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) 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".

Undisputedly, the suit in question has not been decided upon a preliminary point, rather the same has been disposed of on all the issues after recording of evidence of the parties. In such a situation, the matter could not have been remanded under Order 41 Rule 23A of CPC, unless the findings of the trial court were reversed. But learned first appellate court has remanded the matter without reversing the findings of the trial court on material issues. It has without any appreciation or consideration, simply set-aside the judgment and decree of the trial court. Thus, the order of remand by the first appellate court is clearly in utter violation of the above provisions and accordingly, not sustainable in the eyes of law.

In this case, the first appellate court while allowing the application under order 41 Rule 27 of CPC has not considered the fact that the application is not supported by any affidavit. It has also failed to consider the objection raised by the plaintiffs against the application.

Undisputedly, the trial court has afforded ample opportunity for evidence to the parties. The evidence of defendant has been closed only after clear statement by her that she does not want to produce further evidence. Thus, the trial court has not refused to admit evidence of the defendant.

The first appellate court while allowing the application under Order 41 Rule 27 of CPC has failed to consider that the issue of marriage of Siya Devi with Ram Singh is very material and decisive in this case. Accordingly, the defendant Munni Devi was required to establish this fact by producing all possible oral as well as documentary evidence including this voter list. There is nothing to show that during trial, defendant Munni Devi made sincere or diligent efforts to procure the voter list of Siya Devi. If on filing of such document in the appeal, the matter is remanded for retrial, the dispute will never come to an end and every time on filing of some

ration card of Siya Devi or other document, the matter will be remanded for retrial. Thus, this court is of the firm view that learned trial court has erred in allowing the application filed by defendant Munni Devi under Order 41 Rule 27 of CPC in utter violation of the above said provisions.

The present suit was decided after recording of evidence of the parties. Thus, ample material was available on record, on the basis of which, the first appellate court could have decided the appeal on merits. But instead of doing so, the matter has been remanded for retrial in contravention of the well established legal position.

In view of the above discussion and reasons stated, the instant appeal is allowed. The impugned order of the first appellate court is quashed and set-aside. The first appellate court is directed to restore the appeal on it's original number and decide the same on merits in accordance with law.

Both the parties shall appear before the first appellate court on 11th April, 2022. Let record of the court below along with a copy of this order be transmitted to the first appellate court immediately.

No order as to the cost.

(SATISH KUMAR SHARMA) JUDGE

Rks RAM KUMAR SHARMA 2022.03.25 17:42:52 +05'30'