Devendra vs Ravindra Kumar
2023 Latest Caselaw 15112 MP

                                                        1
                            IN    THE     HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                    BEFORE
                                 HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
                                          ON THE 13 th OF SEPTEMBER, 2023
                                           SECOND APPEAL No. 761 of 2020

                           BETWEEN:-
                           1.    DEVENDRA S/O SHRI VISHWANATH RATHI, AGED
                                 ABOUT     57   YEARS, OCCUPATION:    SELF
                                 EMPLOYED, R/O VILL. JAINABAD, TEH. AND
                                 DISTT. BURHANPUR (MADHYA PRADESH)

                           2.    RAJU S/O SHRI VISHWANATH RATHI, AGED
                                 ABOUT     55   YEARS, OCCUPATION: SELF
                                 EMPLOYED, VILLAGE JAINABAD TAHSIL AND
                                 DISTT. BURHANPUR (MADHYA PRADESH)

                           3.    MANOJ S/O SHRI VISHWANATH RATHI, AGED
                                 ABOUT     43   YEARS, OCCUPATION: SELF
                                 EMPLOYED, VILLAGE JAINABAD TAHSIL AND
                                 DISTT. BURHANPUR (MADHYA PRADESH)

                           4.    HARISH S/O SHRI VISHWANATH RATHI, AGED
                                 ABOUT     41   YEARS, OCCUPATION:  SELF
                                 EMPLOYED, VILLAGE JAINABAD TAHSIL AND
                                 DISTT. BURHANPUR (MADHYA PRADESH)

                                                                              .....APPELLANTS
                           (BY SHRI Y.M.TIWARI- ADVOCATE )

                           AND
                           1.    RAVINDRA KUMAR S/O HARIBHAU CHITTE,
                                 AGED ABOUT 61 YEARS, R/O VILL. JAINABAD,
                                 TEH. AND DISTT. BURHANPUR (MADHYA
                                 PRADESH)

                           2A.   STATE OF MP THROUGH COLLECTOR DISTT.
                                 BURHANPUR (MADHYA PRADESH)

                           2B.   SARPANCH GRAM PANCHAYAT JAINABAD DISTT.
                                 BURHANPUR (MADHYA PRADESH)

                                                                             .....RESPONDENTS
Signature Not Verified
Signed by: RAJESH
MAMTANI
Signing time: 14-09-2023
12:10:58
                                                        2
                           ( RESPONDENT NO.1 BY SHRI HEMANT KUMAR CHOUHAN-ADVOCATE)
                           (RESPONDENT NO.2 BY SHRI TEEKARAM KURMI- PANEL LAWYER)

                                 This appeal having been heard and reserved for orders, coming on for
                           pronouncement this day, the court passed the following:
                                                             JUDGMENT

This appeal under section 100 of the Code of Civil Procedure has been filed by the appellants against judgment and decree dated 11.02.2020 passed by Second Additional District Judge, Burhanpur in Regular Civil Appeal No.37/2018 (Devendra and others Vs. Ravindra and others) arising out of judgment and decree dated 23.7.2018 passed by the Additional Judge to the Court of First Civil Judge Class-II, Burhanpur in Civil Suit No.44-A/2016

[Ravindra Vs. Devendra and others].

2. The facts narrated in the instant appeal preferred by appellants/defendants No.1 to 4, in short, are that respondent No.1/plaintiff filed a civil suit stating that he purchased the suit property vide registered sale deed dated 15.4.1982 and the appellants herein encroached upon the suit property and, therefore, easementary rights of the plaintiff were violated and hence, he was unable to carry his goods while using disputed road to reach his property and, thus, the suit was filed by respondent/plaintiff for declaration and mandatory injunction on 06.4.2016. The suit filed by the respondent/plaintiff was decreed and present appellants were permanently injuncted from making any construction on the land and were also directed to remove 'Kachcha' structure within a period of one month.

3. The appellants being aggrieved with the judgment of the trial Court challenged the same before in Appeal before the Second Additional District Judge, Burhanpur in Regular Civil Appeal No.37/2018. During pendency of first appellate Court the present appellants moved application under Order 41 Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 14-09-2023 12:10:58

Rule 27 of CPC as also under Order 6 Rule 17 CPC for amendment in the written statement, The first appellate Court dismissed both the applications and affirmed judgment and decree of the trial Court. Hence, this appeal.

4. The grounds urged by appellants are that both the applications i.e. under Order 41 Rule 27 CPC and under Order 6 Rules 17 CPC should have been allowed because at the time of trial the documents were not in possession of the appellants and despite due diligence same could not be produced during course of trial and accordingly, both the applications were filed which go to the root of the dispute between the parties. Hence, appeal be admitted on the proposed substantial questions of law.

5. Learned counsel for the respondents have strongly opposed admission.

6. The question before this Court for consideration is that in the facts and circumstances of the case whether any substantial question of law arises, on which, appeal can be admitted for final hearing.

7. Heard learned counsel and perused the record as also applications filed by appellants under Order 41 Rule 27 CPC and application under Order 6 Rule 17 CPC which have been filed on 10.4.2019 and 10.12.2018 and registered as I.A.No.02 & I.A.No.01 respectively. Lower appellate Court vide order dated 13.8.2019 observed that both the applications shall be considered at the time of

final arguments and decided the above applications thereafter at the time final disposal of the case. In impugned judgment and decree dated 11.02.2020 the first appellate Court in paragraphs 13 to 17 considered the issue no.1 framed by it in paragraph 12 with regard to application under Order 6 Rule 17 of CPC and after appreciating the entire gamut of facts held that application under Order 6

Signature Not Verified Rule 17 is not bonafide inasmuch as in the application it is mentioned that after Signed by: RAJESH MAMTANI Signing time: 14-09-2023 12:10:58

filing of appeal some information has been received from son of Tukaram and, therefore, he has filed the application belatedly. It has been observed by the lower appellate Court that information could have been gathered earlier and, therefore, application is not bonafide and hence rejected the same. As regards application under Order 41 Rule 27 CPC the same has been dealt with paragraphs 18 to 21 and it has been observed that documents are not relevant and have been filed belatedly.

8. In this regard it is worth referring to Order 6 Rule 17 of CPC. Proviso to Order 6 Rule 17 of CPC being relevant for the present purpose is quoted hereunder:-

"17. Amendment of pleadings.

xxxxx Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial."

Order 41 Rule 27 of CPC which deals with production of additional evidence in Appellate Court provides as under:-

"27. Production of additional evidence in Appellate Court.- 91) 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 (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 14-09-2023 12:10:58

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."

9. This Court has also perused the above applications and order to see whether conclusion to reject the applications is correct. It is not mentioned in the application under Order 6 Rule 17 of CPC as to on which relevant date, month and year the appellants gathered the additional information. In paragraph 1 of the application the name of person who has provided information is not mentioned. Alongwith applications filed by Hemant Vishwanath Rathi before the first appellate Court affidavit of Hemant Vishwanath Rathi has been filed for application under Order 6 Rule 17 CPC. Hemant Vishwanath Rathi is neither party before the first appellate Court nor before this Court. Therefore, the above circumstances, rejection of application under Order 6 Rule 17 of CPC was proper. Similarly, the application under Order 41 Rule 27 CPC has been filed by Hemant Vishwanath Rathi. In this application also the name of person who gave information alongwith the date, month and year are not mentioned. Therefore, rejection of this application also by the lower appellate Court is correct as condition of proviso to Order 6 Rule 17 and under Order 41 Rule 27 Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 14-09-2023 12:10:58

of CPC are not fulfilled. Thus, no substantial question of law arise in this appeal in respect of applications under Order 41 Rule 27 CPC and under Order 6 Rule 17 CPC.

10. As far as substantial question of law proposed in this appeal in respect of finding arrived by trial Court relating to Issue No.1 framed in judgment dated 23.7.2018 is concerned, it is regarding passage for plaintiff to go to his residential property, but the same is purely a question of fact.

11. In the result, no substantial question of law arise in this appeal. Hence, it is dismissed at admission stage itself.

(AVANINDRA KUMAR SINGH) JUDGE RM

Signature Not Verified Signed by: RAJESH MAMTANI Signing time: 14-09-2023 12:10:58