[Cites 1, Cited by 0]
Madhya Pradesh High Court
Smt. Rampyari Singh vs Babulal Singh on 9 December, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE HIMANSHU JOSHI
ON THE 9 th OF DECEMBER, 2025
MISC. APPEAL No. 7573 of 2024
SMT. RAMPYARI SINGH AND OTHERS
Versus
BABULAL SINGH AND OTHERS
Appearance:
Shri Uttarkarsh Agrawal - Advocate for the appellants.
Shri Mahendra Pateriya - Advocate for the respondents.
Reserved on: 19.11.2025
Pronounced on: 09.12.2025
ORDER
The present Misc. Appeal has been preferred under the provision of
Order 43 Rule 1(u) of the Code of Civil Procedure, 1908 whereby a
challenge has been made to the order dated 20/09/2024 passed by learned
Seventh Additional District Judge, Rewa in RCA No.83/2024. Vide
impugned order dated 20/09/2024, the Court below has allowed the appeal
preferred by the respondents and remanded the matter to the trial Court to
decide the application under Order 41 Rule 27 of the Code of Civil
Procedure.
2. The facts of the case are that Late Shri Ramsudarshan Singh was the
head of the family and died in the year 1986 leaving behind wife, three sons
and three daughters. The appellants herein are the daughters and the
respondents are sons of Late Shri Ramsudharshan Singh. Late Shri
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Ramsudhanarshan Singh owned and possessed various agricultural lands at
Village- Bara Kothar. The record of the case reveals that certain revenue
proceedings had taken place between the parties. The appellants expressed
their wish to the defendants for grant of their share and partition of the
family property, which was denied by the defendants.
3. The present appellants have preferred a civil suit claiming rights,
title and interest over the suit property by filing a suit for partition bearing
no.1800118 of 2013. The suit was allowed vide judgment and decree dated
06/07/2024. This judgment and decree was challenged by filing an Appeal
bearing no.83 of 2024. During pendency of the appeal, the defendants-
respondents herein, have filed an application under Order 41 Rule 27 of the
Code of Civil Procedure for production of certain additional documents for
just disposal of the appeal. The learned Appellate Court, vide impugned
judgment and decree dated 20/09/2024 has remanded back the matter to the
trial Court after setting aside the judgment and decree dated 06/07/2024.
Against the order of remand, the present appeal has been preferred.
4. Learned counsel for the appellant has opposed the impugned order,
submitting that the order is illegal, arbitrary and against the settle principles
of law. It is vehemently argued that the judgment and decree passed by the
Court below are based on ample and overwhelming documents evidence and
that a just and proper judgment and decree has been passed after due
appreciation of evidence. It is further argued that passing the impugned order
would allow the other side to fill up lacuna in their case. Lastly, it was
argued that the respondents had filed the same application before the trial
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Court as well, but the same has not been considered by the Court below. A
prayer for rejection of the application has been made.
5. Per contra learned counsel for the respondents has supported the
order impugned submitting that the suit property has already been partitioned
and thereafter the respective shares had been received by the defendants. It is
further submitted that the documents filed along with the present application
related to partition, ownership and possession of the lands in question. It is
vehemently argued that the documents sought to be brought on record, are
important and necessary for just disposal of the controversy.
6. The controversy in hand revolves around the provision of Order 41
Rule 27 of the Code of Civil Procedure, 1908, which reads as under:-
27. Production of additional evidence in
Appellate Court.--(1) 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 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]
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(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.
7. A plaint reading of the aforesaid provision reveals that the
Legislature has granted power to the appellate court for permission to adduce
additional evidence, whether oral or documentary even at the stage of appeal.
Under Order 41 Rule 27 the appellate Court has the power to allow a
document to be produced and a witness to be examined. But the requirement
of the said Court must be limited to those cases where it found it necessary
to obtain such evidence for enabling it to pronounce judgment. This
provision does not entitle the appellate Court to let in fresh evidence at the
appellate stage where even without such evidence it can pronounce judgment
in a case. If the documents on record are relevant on the issue of fraud, the
Court could well proceed to consider them and decide the issue. But the
appellate Court cannot order afresh trial.
8. A perusal of the application reveals that it has been specifically
stated in the application that certain lands were transferred in the name of
other family members, who are legal representatives. A request was also
made for impleading these legal representatives, but the same has not been
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considered. The documents sought to be brought on record are necessary for
the just disposal of the controversy. The core issue between the parties is
whether any oral partition had taken place or not ? The documents sought by
way of the application will throw sufficient light upon this core issue, and
therefore, the trial Court has rightly passed the order remanding the suit to
the trial Court for consideration of specific issues.
9. It is well-settled that additional evidence should not be permitted at
the appellate stage in order to enable one of the parties to remove certain
lacuna or fill in gaps. Of course, the position is different where the Appellate
Court itself requires certain evidence to be adduced in order to enable it to do
complete justice between the parties. In such circumstances, it is the need of
the hour, to remand the matter back for consideration on the relevant point.
10. Considering the facts and circumstances of the present case, the
learned appellate Court has not committed any illegality in passing the order
impugned dated 20/09/2024.
11. Accordingly, the present appeal stands dismissed. The impugned
order dated 20/09/2024 is upheld.
12. Parties are directed to appear before the learned trial Court on
12.01.2026 for fixing the next date of hearing in the suit. The trial Court is
further directed to take all necessary steps to complete the proceedings of the
suit within nine months from the date of appearance i.e. 12/01/2026.
(HIMANSHU JOSHI)
JUDGE
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mn
