Smt. Shailendra Kumari Sisodiya vs Smt. Rani Sisodiya @ Ranjana
2022 Latest Caselaw 11720 MP

                IN THE HIGH COURT OF MADHYA PRADESH
                             AT GWALIOR
                                            BEFORE
                        HON'BLE SMT. JUSTICE SUNITA YADAV

                             ON THE 6th OF SEPTEMBER, 2022

                            MISC. APPEAL No. 2469 of 2020

   BETWEEN:-
   SMT. SHAILENDRA KUMARI SISODIYA W/O LATE SHRI
   VIJAY SINGH, AGED ABOUT 85 YEARS, KHYAVDA COLONY
1.
   BEHIND COLLECTOR BUNGALOW CANT GUNA (MADHYA
   PRADESH)
   ARYAN S/O LATE SHRI AJAY SINGH, AGED ABOUT 17
2. YEARS, KHYAVDA COLONY BEHIND COLLECTOR
   BUNGALOW CANT (MADHYA PRADESH)
   KU. APURVA D/O LATE SHRI AJAY SINGH, AGED ABOUT 17
3. YEARS, KHYAVDA COLONY BEHIND COLLECTOR
   BUNGALOW CANT GUNA (MADHYA PRADESH)
                                                                            .....PETITIONERS
   (BY MR. N.K. GUPTA - SENIOR ADVOCATE ASSISTED BY MR.
   SANJAY KUMAR SHARMA - ADVOCATE )

   AND
   SMT. RANI SISODIYA @ RANJANA W/O LATE SHRI AJAY
   SINGH SIDODIYA, AGED ABOUT 28 YEARS, BEHIND
1. COLLECTOR BUNGALOW KHYAVDA COLONY CANT GUNA
   AT PRE. NONERA LALLAU SINGH KA PURA THASIL GOHAD
   (MADHYA PRADESH)
   COLLECTOR THE STATE OF MADHYA PRADESH GUNA
2.
   (MADHYA PRADESH)
                                                                          .....RESPONDENTS
   (MR. PRASHANT SHARMA - ADVOCATE FOR RESPONDENT
   NO. 1 )
---------------------------------------------------------------------------------------------------

       This appeal coming on for hearing this day, the court passed the following:
                                      ORDER

Present miscellaneous appeal is filed assailing the judgment and decree of

remand dated 30/6/2020 passed by Third Additional District Judge, Guna (M.P.) in

Civil Appeal No. 41A/2017 RCA reversing the judgment and decree dated

19/6/2017 passed by Second Civil Judge, Class I, Guna (M.P.) in Civil Suit No.

197A/2016 and remanding the matter to the trial Court for decision afresh.

The facts in brief to decide this appeal are that the respondent No. 1/plaintiff

instituted a civil suit for declaration of title and permanent injunction against the

appellants/defendants No. 1 to 3 impleading the State of Madhya Pradesh as party

- defendant No. 4 with regard to agricultural lands situated in Village - Jaganpura

total no. 5 total area 5.385 heactare, in Village - Barkhedi Dhekni total no. 7 total

area 9.691 hectare and in Village - Barkhedi Dhekni total no. 3 total area 5.225

hectare. It was alleged that the plaintiff is legally married wife of Late Ajay Singh

Sisodiya, after death of her first wife Sadhna from whom defendant Nos. 2 and 3

were born. Ajay Singh had died on 06/11/2011 at Bhopal due to accident occurred

on 04/12/2010. Accordingly, the plaintiff claiming herself to be the wife of

deceased Ajay Singh, who was the owner of the disputed property, prayed for 1/4 th

share of the property along with defendants No. 1 to 3, who are mother and

children of deceased Ajay Singh respectively. Defendants No. 1 to 3 were

proceeded ex-parte by the trial Court. The trial Court recorded the ex-parte

evidence of the plaintiff and dismissed the suit vide judgment and decree dated 19/6/2017.

Plaintiff/respondent No. 1 preferred civil appeal and also filed an application

under Order 41 Rule 27 of CPC praying for taking the document as addional

evidence on record. An application under Order 16 Rule 1, 6 and 7 read with

Section 151 of CPC was also filed by the plaintiff for summoning the record

relating to document filed under Order 41 Rule 27 of CPC. Upon service of

summons, defendants No. 1 to 3 appeared and opposed the appeal and

applications. After hearing both the parties, the First Appellate Court allowed the

application filed under Order 41 Rule 27 of CPC and set aside the judgment and

decree of the trial Court by impugned judgment and decree and remanded the case

to decide the case after considering additional evidence filed by the

respondent/plaintiff.

Learned counsel for the appellants/ defendants No. 1 to 3 has argued that the

impugned judgment of remand passed by the First Appellate Court is manifest

illegal, contrary to law and record and against the settled principles of law and is

therefore liable to be set aside. The First Appellate Court has erred jurisdictionally

in passing the impugned judgment without considering the mandatory provisions

of Order 41 Rule 27 CPC which is mandatory requirement before passing any

judgment of remand. The First Appellate Court has erred in allowing the

application filed under Order 41 Rule 27 CPC and remanded the entire case for retrial while the same was fully considered by the trial Court and findings have

also been recorded on the alleged questions. The First Appellate Court has not

considered the act of plaintiff who did not file the documents before the trial Court

along with the plaint and the documents have been taken on record by the First

Appellate Court on the sole ground of improper rejection of application under

Order 7 Rule 14 CPC without giving any opportunity to the defendants to file

written statement or to produce the evidence in rebuttal. Consequently, the

impugned judgment passed by the First Appellate Court be set aside and the First

Appellate Court be directed to decide the civil appeal afresh on its own merits. The

learned counsel for the petitioners cited the cases of Murari Lal vs. Ramkumar

Ojha, [2015 (1) MPLJ 243, Dineshchandra Sharma vs. Rana Dharampal

Singh and Ors., [2020 (4) MPLJ 226], Municipal Corporation Hyderabad vs.

Sunder Singh, [2008 (8) SCC 485] and Arvind vs. Mannalal, [2009 (1) MPLJ

620] in the support of his arguements.

On the other hand, learned counsel for the respondent argued that the

impugned judgment is in accordance with the settled principle of law, therefore, no

interference is warranted in the same. The First Appellate Court has rightly

observed that the documents filed by respondent No. 1/plaintiff as additional

evidence are relevant and necessary to decide the issue involved in the present case

and, therefore, the judgment passed is in accordance with the provisions of law.

Heard learned counsel for the rival parties and perused the available record.

As per the arguement of learned counsel for the appellants, the trial Court

had rightly dismissed the application filed by respondent No. 1/plaintiff under

Order 7 Rule 14 CPC by its order dated 16/5/2017 and the First Appellate Court

has erred in holding that the order was wrongly passed as the documents filed by

the respondent/plaintiff are not admissible in evidence. However, the above

arguement is not acceptable because at the time of considering the application

under Order 7 Rule 14 CPC only relevancy of the document has to be seen. This is

not the stage to decide the admissibility of document in evidence; therefore, the

First Appellate Court has rightly observed that the application filed by respondent

No. 1/plaintiff was wrongly dismissed by the trial Court.

The Apex Court in the case of Sanjay Kumar Singh vs. State of

Jharkhand, [2022 Live Law (SC) 268] has held that if 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.

Similarly, in the case of Wadi vs. Amilal, [2002 3 JLJR (SC) 200 = 2015

(1) SCC 677], the Apex Court has observed that while allowing the application

filed under Order 41 Rule 27 CPC, the requirement or need is that the Appellate Court beairng in mind that the interest of justice is paramount. If it feels that

pronouncing a judgment in the absence of such evidence would result in a

defective decision and to pronounce an effective judgment admission of such

evidence is necessary, clause (b) enables it to adopt that course. Invocation of

clause (b) does not depend upon the vigilance or negligence of the parties for it is

not meant for them. It is for the appellant to resort to it when on a consideration of

material on record it feels that admission of additional evidence is necessary to

pronounce a satisfactory judgment in the case.

In the present case, the documents filed by respondent No.1/plaintiff has a

direct bearing on the issue in dispute and are necessary to pronounce a satisfactory

and effective judgment in the case, therefore, in view of the above settled

principles of law, the First Appellate Court has rightly allowed the application filed

by the respondent No. 1/plaintiff.

Learned counsel for the appellants also argued that since in this case the

finding of the trial Court has not been reversed, therefore, remanding the case

under Order 41 Rule 23 of CPC is wrong.

The provisions of Order 23A. Of C.P.C. reads as below:

"Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule

23."

In view of above provision, on perusal of the impugned judgment reveals

that the First Appellate Court has specifically framed two issues to decide the

appeal and one of those issuses was "whether the judgment and decree passed by

the trial Court is contrary to the law and facts ?" and upon detailed discussion on

this aspect passed the impugned judgment setting aside the decree of rejection of

plaint by the learned trial court, therefore, the argument of the counsel for the

appellants is not tenable that in the light of provision of Order 41 Rule 23 CPC and

in the light of cases cited by him the First Appellate Court has committed an error

by remanding the case.

In view of the above discussion, this Court is of the considered opinion that

the First Appellate Court has rightly passed the impugned judgment dated

30/6/2020 in Civil Appeal No. 41A/2017 RCA.

Consequently, present miscellaneous appeal fails and is hereby dismissed.

                                                                 (SUNITA YADAV)
AKS                                                                    JUDGE

  ALOK KUMAR
  2022.09.09
  18:05:35
  +05'30'
  11.0.23