Rajesh Mathur vs Rampyari Bai W/O Late Shri ...
2023 Latest Caselaw 5225 MP

                                 1                               M.P. No. 1431 of 2023

                            IN THE HIGH COURT OF MADHYA PRADESH

                                             AT G WA L I O R
                                                   BEFORE
                                     HON'BLE SMT. JUSTICE SUNITA YADAV

                                         ON THE 29th OF MARCH, 2023

                                        MISC. PETITION No. 1431 of 2023

                           BETWEEN:-
                           RAJESH MATHUR S/O SHRI MATA PRASAD MATHUR,
                           AGED ABOUT 58 YEARS, OCCUPATION: BUSINESS, R/O
                           WARD NO. 22, CHACHA WALI GALI, DISTRICT VIDISHA
                           (MADHYA PRADESH)
                                                                     .....PETITIONER
                           (BY MR. ABHISEHK SINGH BHADAURIA - ADVOCATE)

                           AND
                              RAMPYARI BAI W/O LATE SHRI BHAGWANDAS KORI
                              (DELETED) THROUGH LRS 1. NARAYANDAS S/O SHRI
                              BHAGWANDAS, AGED ABOUT 62 YEARS, R/O WARD
                           1.
                              NO. 2, STATION ROAD, BEHIND PADMA MARKET,
                              KHARA KUAN GALI, GANJ BASODA, DISTRICT
                              VIDISHA (MADHYA PRADESH)
                              JASODA BAI S/O SHRI BHAGWANDAS, AGED ABOUT
                              62 YEARS, R/O WARD NO. 2, STATION ROAD, BEHIND
                           2.
                              PADMA MARKET, KHARA KUAN GALI, GANJ
                              BASODA, DISTRICT VIDISHA (MADHYA PRADESH),
                              LALARAM S/O SHRI BHAGWANDAS, AGED ABOUT 57
                              YEARS, R/O WARD NO. 2, STATION ROAD, BEHIND
                           3.
                              PADMA MARKET, KHARA KUAN GALI, GANJ
                              BASODA, DISTRICT VIDISHA (MADHYA PRADESH)




Signature Not Verified
Signed by: LOKENDRA JAIN
Signing time: 4/1/2023
12:39:50 PM
                                  2                                      M.P. No. 1431 of 2023
                              MEENA D/O SHRI BHAGWANDAS, AGED ABOUT 59
                              YEARS, R/O WARD NO. 2, STATION ROAD, BEHIND
                           4.
                              PADMA MARKET, KHARA KUAN GALI, GANJ
                              BASODA, DISTRICT VIDISHA (MADHYA PRADESH)
                              REKHA D/O SHRI BHAGWANDAS, AGED ABOUT 42
                              YEARS, R/O WARD NO. 2, STATION ROAD, BEHIND
                           5.
                              PADMA MARKET, KHARA KUAN GALI, GANJ
                              BASODA, DISTRICT VIDISHA (MADHYA PRADESH),
                               STATE OF M.P. THROUGH ITS COLLECTOR VIDISHA
                           6.
                               (MADHYA PRADESH)
                              CHIEF MUNICIPAL OFFICER, MUNICIPALITY GANJ
                           7.
                              BASODA, DISTRICT VIDISHA (MADHYA PRADESH)
                                                                          .....RESPONDENTS
                           (MR. DEVANSH MISHRA - ADVOCATE FOR PRIVATE RESPONDENTS
                           AND MR. RAMADHAR CHOBEY - GOVERNMENT ADVOCATE FOR
                           RESPONDENT/STATE)
                                 This petition coming on for Admission this day, the court

                           passed the following:

                                                       ORDER

This petition under Article 227 of Constitution of India has

been filed assailing the order dated 14.02.2023 passed in RCA

No.22/2019 by Ist District Judge, Basoda, District Vidisha,

whereby, the learned Court below has allowed two applications

filed by respondent No.1/plaintiff under Order 41 Rule 27 of CPC

and has remanded the matter back to trial Court for taking evidence

with respect to documents within two months.

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/1/2023 12:39:50 PM

2. Brief facts for disposal of the case are that the respondent/

plaintiff filed a suit against petitioner/defendant No.1 and

respondents No. 2-3 for declaration of title and permanent

injunction with respect to suit property ad-measuring area 2400

sqft. situated at House No.402, Ward No.2, behind Padma Manket,

Khara Kuan Gali Ganj Basoda, District Vidisha. It was further

submitted that plaintiff is sole Bhumiswami and in possession of the

suit house on the basis of Patta, her name is also mutated. Plaintiff's

father-in-law late Ajuddhi was granted permission for construction

in the year 1962. Plaintiff is a aunt of deceased-Rajkumar and

Balkishan who are sons of Ramcharan and were unmarried. On

11.09.2015, defendant No.1/petitioner came with 15-20 labourers

and destroyed the suit house and took the debris amounting to Rs.3-

4 lakhs which was complained by plaintiff to the authorities. On the

interalia allegations, the suit was filed.

3. Upon notice, defendant no.1 appeared and filed written

statement denying all the plaint allegations and submitted that

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/1/2023 12:39:50 PM

plaintiff has suppressed most of the facts which are necessary for

adjudication of the present case and plaintiff has no title and

possession over the suit property. With the aforesaid prayed to

dismiss the suit.

4. The learned trial Court framed as many as 4 issues and

recorded the evidence lead by both the parties and after having

considered the facts, evidence and the law applicable dismissed the

suit vide its judgment and decree dated 14.05.2019.

5. Thereafter aggrieved by the judgment and decree dated

14.05.2019, respondent no.1/plaintiff preferred a Civil Appeal

No.22/2019 before learned 1st District Judge, Ganj Basoda, District

Vidisha alongwith two applications under Order 41 Rule 27 CPC.

6. Petitioner/defendant no.1 filed reply to the said applications

and submitted that at this stage respondent no.1/plaintiff cannot be

allowed to fill-up the lacuna and prayed to dismiss the applications

as well as appeal.

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/1/2023 12:39:50 PM

7. Learned court below after hearing both the parties has

allowed both the applications and remanded the case to trial court

for taking evidence with respect to the documents and directed to

send back the matter within two months vide its order dated

14.02.2023.

8. Learned counsel for the petitioner argued that the impugned

order passed by learned Court below is not only illegal but also

without jurisdiction and is liable to be set aside. It is further

submitted that while passing the impugned order, learned Court

below has erred in exercising jurisdiction vested in it. It is well

settled law that photocopies cannot be filed along with an

application under Order 41 Rule 27 CPC which has been

overlooked by the learned Court below by allowing said

applications. It is also settled principle of law that merely because a

particular evidence which ought to have been adduced but had not

been adduced, the appellate Court cannot adopt the soft course of

remanding the matter. The further submission is that additional

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/1/2023 12:39:50 PM

evidence in appeal cannot be permitted to be adduced without

hearing the appeal on merits. The negligence of a pleader or that the

party did not realise the importance of a document does not

constitute a "substantial cause" within the meaning of this rule.

Therefore, the impugned order deserves to be set aside.

9. On the other hand, learned counsel for the respondents

submitted that the impugned order is in accordance with settled

principle of law which needs not to be interfered with.

10. Heard the learned counsel for the parties and perused the

record.

11. The perusal of the record reveals that the learned first

appellate court has decided the applications prior to hearing of the

appeal on merits. In the case of Sampurna Singh Vs Hari Singh

1997 (2) WN 147 as well as Jyoti Vs Jai Narayan 2018 (1) RN 34

the Apex Court while dealing this issue held that additional

evidence in appeal cannot be permitted to be adduced without

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/1/2023 12:39:50 PM

hearing the appeal on merits or simultaneously. In case, application

for taking additional evidence on record has been considered and

allowed prior to the hearing of the appeal, the order being a product

of total and complete non-application of mind.

12. The learned first appellate court while passing the order also

held that the plaintiff Rampyari (since dead) was an old woman,

illiterate and also ignorant of law, and, therefore, the reason for not

filing the said documents earlier is sufficient. However, Hon'ble

Supreme Court in the case of Union of India Vs. Ibrahim Uddin

reported in (2012) 8 SCC 148, held as under:-

"The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal."

Therefore, the reasons that Rampiyari Bai was illiterate and her

advocate did not advice her to file documents is not acceptable for

taking additional evidence. It is also apparent that Rampyari Bai

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/1/2023 12:39:50 PM

died before 2023 and the applications (Annexure P/3) under Order

41 Rule 27 CPC was filed after her death i.e. on 23.01.2023,

therefore, without her own contention that she being illiterate could

not file document the reason for not filing the documents before the

trial court cannot be believed upon.

13. Learned counsel for the respondent/plaintiff cited the case of

Sanjay Kumar Singh Vs. State of Jharkhand reported in (2022) 7

SCC 247, and argued that as per the law laid down in this case the

admissibility of additional evidence does not depend upon the

relevancy to the issue in 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 i.e. whether such

additional evidence has a direct bearing on pronouncement of

judgment, and, therefore, the learned first appellate court has not

committed any error while passing the impugned order. However,

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/1/2023 12:39:50 PM

the above argument is not acceptable because in the present case

the record reveals that respondent/plaintiff-Rampyari pleaded that

in the year 1962 her father-in-law Ajjudhi was granted permission

for construction over the suit land. The patta of the disputed land

was given to her. The plaintiff's witness Ramsewak (PW-2) stated

that the patta was granted 15-20 year back. Keshav (PW-3) has said

that he had seen the patta in the year 1970. However, contrary to

the pleadings and evidence, copies of patta filed along with the

applications under Order 41 Rule 27 of CPC indicate that the three

pattas were granted in the year 2003 in the name of three persons.

The plaintiff - Rampyari has denied in her cross-examination that

any suit was pending between Anil Yadav and herself. Anil Yadav

is not a party in the present suit. In these circumstances it cannot be

said at this stage that such additional documentary evidence has any

direct bearing on the case.

14. In view of the above, this Court is of the considered opinion

that the impugned order allowing the applications is against the

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/1/2023 12:39:50 PM

settled principle of law, hence, the same deserves to be quashed.

Consequently, the petition is allowed and the impugned order dated

14.02.2023 (Annexure P/1) is hereby set aside.

(Sunita Yadav) Judge LJ*

Signature Not Verified Signed by: LOKENDRA JAIN Signing time: 4/1/2023 12:39:50 PM