Madhya Pradesh High Court
Jagdish vs Vaikunthi (Dead) Thr. Lrs Smt. Kalavati on 18 June, 2025
1 M.A. No. 911/2014
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 18th OF JUNE, 2025
MISC. APPEAL No. 911 of 2014
JAGDISH (DEAD) THR. LRS MURARILAL AND OTHERS
Versus
VAIKUNTHI (DEAD) THR. LRS SMT. KALAVATI AND
OTHERS
Appearance:
Shri P.C. Chandil - Advocate for appellants.
None for respondents No.1(i) & (ii) though served.
Shri Arshad Ali - Advocate for respondents No.1(iii) & 1(iv).
Shri Prabhat Pateriya - Government Advocate for
respondent No.2/State.
JUDGMENT
The appellants/defendants have filed this appeal under Order
43 Rule 1(u) of CPC challenging the judgment and decree dated
14/08/2014 passed by Additional District Judge, Ambah District
Morena in Civil Appeal No.3A/2014, whereby the appeal filed by
the plaintiff has been allowed, and while allowing the application
under Order 41 Rule 27 of the CPC, the judgment and decree dated
20/12/2013 passed by the learned trial Court has been set aside, and
the matter has been remanded for fresh decision.
2. The exposition of facts giving rise to this appeal, in a
nutshell, is that a suit for declaration and permanent injunction was
filed by the plaintiff/respondent No.1 - Vaikunthi against the
appellants and respondent No.2 in respect of agricultural land
bearing Survey No.355, admeasuring 0.62 hectare, situated at
Village Sathi, Tehsil Porsa, District Morena, with the pleadings that
she is the bhumi swami and is in possession of the suit land. It was
pleaded that Jagdish is the son-in-law of the plaintiff/respondent
No.1. The face of plaintiff/respondent No.1 resembles with Smt.
Shankaria, wife of appellant No.1 - Jagidsh. It was alleged that the
appellants got executed the registered sale deed of the suit land in
their names by presenting Smt. Shankaria, wife of appellant No.1,
as Vaikunthi, the plaintiff/respondent No.1. The appellants got the
sale deed executed in their favour by committing fraud; therefore,
the sale deed is null and void. It was further alleged that, on the
strength of this sale deed, the appellants are trying to get their
names mutated in the revenue records and to encroach upon the suit
land. Upon these pleadings, she sought declaration of title and
permanent injunction against defendants Jagdish and Harilal.
3. The appellants/defendants were proceeded ex parte before
the Trial Court.
4. After completion of the trial, the trial Court passed the
judgment and decree dated 20.12.2013, whereby the suit has been
dismissed. Thereafter, plaintiff/respondent No.1 filed an appeal
before the Lower Appellate Court, which was registered as Civil
Appeal No.3A/14. In this appeal, the plaintiff/respondent No.1
submitted an application under Order 41 Rule 27 of CPC to bring
on record the opinion of a handwriting expert as regards the thumb
impression of Smt. Vaikunthi on the registered sale deed dated
31.03.2012.
5. The First Appellate Court, vide impugned judgment dated
14.08.2014, allowed the application under Order 41 Rule 27 of the
CPC and remanded the case to the trial Court with directions to
provide an opportunity to the respondents/defendants to file written
statement, and upon filing of the written statement, to frame issues,
and provide an opportunity to adduce evidence to both the parties,
and decide the case in accordance with law on merits.
6. Feeling aggrieved by the impugned judgment, the
appellants/defendants, Jagdish and Harilal, have filed the present
appeal.
7. Learned counsel for the appellants submits that there was no
reason for not submitting fingerprint expert report before the trial
Court. Without sufficient grounds, the learned Court below erred in
allowing the application. In paragraph 10 of the impugned
judgment, the First Appellate Court observed that under the
provisions of Order 41 Rule 27 CPC, additional documentary
evidence can be admitted only when the evidence sought to be
taken on record was refused by the trial Court to accept as evidence
or despite due diligence, the parties could not have the knowledge
of the evidence. None of these conditions were fulfilled before the
First Appellate Court. Before the trial Court, the respondent did not
apply for examination of the document by any handwriting expert.
Considering the same, the trial Court dismissed the suit, inter alia,
on this ground. However, merely to fill up the lacuna and create a
ground for remand, the plaintiff/respondent No.1 filed a report that
was got prepared without knowledge of the appellants and the
Court below. Therefore, the genuineness of such report is under a
cloud of doubt. Neither the photographs of the disputed document
nor the specimen thumb impressions were taken in the presence of
the appellants, nor was the original document examined by the
expert. Thus, it is prayed that the impugned judgment and decree be
set aside, and the matter be remanded to the First Appellate Court
for decision of the appeal on its merits.
8. Per contra, learned counsel appearing for the respondents
No.1(iii) & 1(iv) has opposed this appeal on the ground that the
learned First Appellate Court rightly remanded the matter to the
trial Court by allowing the application under Order 41 Rule 27 of
the CPC, as the report was not in the possession of the
respondent/plaintiff at the time of trial. The judgment was passed
by the trial Court on 20.12.2013, whereas the fingerprint expert's
report is dated 25.01.2014. Hence, there is no ground for
interference with the impugned judgment and decree. .
9. Heard learned counsel for the parties and perused the record.
10. For ready reference and convenience, Rule 27 of Order 41 of
the CPC is reproduced below :
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]
(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.
11. In this case, the provisions of Order 41 Rules 23, 23-A and
25 of CPC are also pertinent. Rules 23, 23-A and 25 of Order 41
CPC are reproduced as under:
23. Remand of case by Appellate Court.-Where the
Court from whose decree an appeal is preferred has
disposed of the suit upon a preliminary point and the
decree is reversed in appeal, the Appellate Court may, if
it thinks fit, by order remand the case, and may further
direct what issue or issues shall be tried in the case so
remanded, and shall send a copy of its judgment and
order to the Court from whose decree the appeal is
preferred, which directions to re-admit the suit under its
original number in the register of civil suits, and proceed
to determine the suit; and the evidence (if any) recorded
during the original trial shall, subject all just exceptions,
be evidence during the trial after remand.
[23A. Remand in other cases.-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.]
25. Where Appellate Court may frame issues and
refer them for trial to Court whose decree appealed
from.-Where the Court from whose decree the appeal is
preferred has omitted to frame or try any issue, or to
determine any question of fact, which appears to the
Appellate Court essential to the right decision of the suit
upon the merits, the Appellate Court may, if necessary,
frame issues, and refer the same for trial to the Court
from whose decree the appeal is preferred, and in such
case shall direct such Court to take the additional
evidence required;
and such Court shall proceed to try such issues,
and shall return the evidence to the Appellate Court
together with its findings thereon and the reasons
therefor [within such time as may be fixed by the
Appellate Court or extended by it from time to time].
12. The Hon'ble Apex Court in case of Basayya I. Mathad Vs.
Rudrayya S. Mathad and Others, (2008) 3 SCC 120, has held that
parties to the lis are not entitled to produce additional evidence as a
matter of course or routine. For the said purpose, they must satisfy
the conditions stated in Order 41 Rule 27 of CPC. Para 12 of the
judgment is relevant which is as under :
12. It is clear that parties to the lis are not entitled to
produce additional evidence as of course or routine but
must satisfy the conditions stated in sub-clauses (a) and
(aa). Admittedly, such recourse has not been resorted to
either by the party concerned or were those principles
adhered to by the High Court. Para 3 of his order shows
that the learned Judge verified the document produced on
his direction without complying with the mandate as
provided under Rule 27 of Order 41. Hence, we are of the
view that the finding of the learned Judge based on a
document produced at the time of argument dehors Rule
27 referred above cannot be sustained in the eye of the
law. In such circumstances, his ultimate conclusion
treating the suit property as a family property partible
among the members of the family is also liable to be set
aside. In fact, sub-clause (2) of Rule 27 mandates that
wherever additional evidence is allowed to be produced
by an appellate court, it shall record the reason for its
admission. It is needless to mention that the High Court
neither followed those conditions for production of
additional evidence nor recorded the reason for basing
reliance on the same.
13. In the case of Sunder Lal and Son vs. Bharat Handicrafts
Private Ltd., AIR 1968 SC 406, it has been held by the Hon'ble
Apex Court that if document is in the possession of party and no
explanation is given for not producing it in the original Court, the
plea that the party did not realise the importance of document in
trial Court would not bring case within the expression "other
substantial cause" in Order 41 Rule 27 CPC.
14. In case of Pramod Kumar Jain & Ors. Vs. Smt. Kushum
Lashkari & Ors. I.L.R. [2020] M.P. 163, the Coordinate Bench of
this Court has held that provision of Order 41 Rule 27 CPC does
not authorize any lacuna or gaps in evidence to be filled up at the
stage of appeal. It is the duty of the litigant party to show due
diligence.
15. In case of Sudesh Kohli (Smt.) Vs. Smt. Chandarani
Mishra & Anr., I.L.R. [2019] M.P. 1441, the Coordinate Bench of
this Court has held that the trial Court, very
elaborately/categorically appreciated each and every evidence,
oral/documentary and left no issues unanswered or undecided.
Appellate Court has not given any specific reason as to why
findings of trial Court is not proper. Appellate Court, instead of
remand, could have decided the same on merits and thus has not
exercised its discretion as conferred under Order 41 Rule 23-A
CPC. It has further held that power of remand cannot be exercised
to fill up lacuna of one or other party and can only be exercised for
curing a radical defect in trial or hearing in appeal resulting in
miscarriage of justice.
16. In the case of Asharfi Devi (Smt.) vs. Hari Prasad & Ors.,
2011 (4) I.L.R. Short Note 121, it has been held that where there is
no evidence that will is a forged document, then at the stage of
appeal, prayer for getting the signatures examined by handwriting
expert cannot be allowed.
17. In case of J. Balaji Singh v. Diwakar Cole, AIR 2017 SC
2402, Hon'ble Apex Court in Para 16 & 17 has held as infra :
16. In our considered view, the only error which the
first appellate court committed was that it went on to
record the findings on merits. In our view, it was not
necessary to do so while passing the order of remand.
The reason is that once the first appellate court formed
an opinion to remand the case, it was required to give
reasons in support of the remand order as to why the
remand is called for in the case. Indeed, the remand was
made only to enable the trial court to decide the case on
merits. Therefore, there was no need to discuss much
less record findings on several issues on merits. It was
totally uncalled for.
17. So far as the impugned order is concerned, the
High Court, in our view, committed jurisdictional error
when it also again examined the case on merits and set
aside the judgment of the first appellate court and
restored the judgment of the trial court. The High Court,
in our opinion, should not have done this for the simple
reason that it was only examining the legality of the
remand order in an appeal filed under Order 43 Rule
1(u) of the Code. Indeed, once the High Court came to a
conclusion that the remand order was bad in law, then it
could only remand the case to the first appellate court
with a direction to decide the first appeal on merits.
18. In case of Jagnnath & Anr. Vs. Karuna @ Chetna and
other, 2018(3) M.P.L.J. 98, the Coordinate Bench of this Court has
held that Appellate Court is required to first address on justifiability
of reversing findings of trial Court. Before exercising jurisdiction
under Order 41, Rules 23 and 23-A, Appellate Court should
ascertain requirement for remand.
19. In the case of Vipin Kumar and others vs. Sarojani, 2013 (1)
M.P.L.J. 480, the Coordinate Bench of this Court has elaborately
discussed the provisions of Order 41 Rules 23 to 27 CPC and has
held in paragraph No. 17 as under:
''17. It is made clear here that for future while
directing remand by the lower Appellate Court certain
guidelines are required to be observed while passing
judgment and order directing remand. It is directed that
the lower Appellate Courts in the State shall observe the
contingencies in which remand is permissible otherwise
the appeals be decided on merit. The contingencies
wherein remand can be directed is observed as thus:
(1) If the suit has been decided on a preliminary
issue and the decree is reversed by Appellate
Court then while passing the order of remand the
Appellate Court may direct to try the issue or
issues after taking the evidence already on record
or after the remand, if any, on restoring the suit
to its original number.
(2) If an appeal is preferred against the judgment and
decree passed by the trial Court other than the
preliminary issue and Appellate Court reversed
such finding in appeal and further found that re-
trial is necessary then by recording such finding
the power as specified in clause (1) may be
exercised by the Court directing wholesale
remand.
(3) If the Appellate Court found from the decree
against which an appeal is preferred the trial
Court has omitted to frame or try any issue or to
determine the question of fact which appears
essential to right decision of the suit on merit,
then the Appellate Court may frame issues and
refer the same for trial to the Court from whose
decree the appeal is preferred directing to take
additional evidence if required. The Appellate
Court shall further direct that after trying the said
issue the evidence be returned to it with a finding
and reasons therefor. In such contingencies the
time to return back the evidence and the finding
ought to be fixed by the Appellate Court.
Thereafter the Appellate Court after inviting
objections may determine the appeal on merit.
(4) On production of the additional evidence and
after taking them on record, if the Appellate
Court is satisfied to take some witness to prove
the document then the remand may be directed
for taking such evidence or witness on record
specifying the points for it. On taking additional
evidence on record by all the times the remand is
not necessary if the document is admissible in
evidence and not objected by other side, the
Court may pass the order on merit deciding the
appeal.
5) It is to be made clear here that if the evidence on
record is sufficient to enable the Court to
pronounce the judgment after re-settling the
issue, the Appellate Court should not remand in
routine and the appeals must be decided on
merit.
(6) If the Appellate Court is of the opinion to direct
for remand in any of the contingencies as
specified hereinabove under clause (1) to (4), it
is the duty of the Court to fix the date for
appearance of the parties before the trial Court
with a view to curtail the delay on directing such
remand and if the remand in the above clause (3)
findings be also called within the time specified.
Order accordingly''
20. As held in the case of J. Balaji Singh (supra), when
additional evidence is produced and taken on record, and the
appellate court finds it appropriate to remand the case due to the
additional evidence having an impact on the entire matter, it
becomes incumbent upon the trial court to decide the case afresh.
In such circumstances, the First Appellate Court should not go on
to record the findings on merits. It is not necessary to do so while
passing the order of remand, because once the First Appellate Court
formed an opinion to remand the case, it is required to give reasons
in support of the remand order as to why the remand is called for in
the case. Indeed, the remand is made to enable the trial court to
decide the case on merits. Therefore, there is no need to discuss
much less record findings on several issues on merits.
21. Having considered the law laid down in the aforesaid cases
as well as the provisions of Order 41 Rules 23, 23-A, 25 and 27 of
the CPC, it is found that the impugned judgment and decree are not
sustainable, as the admission of the application under Order 41
Rule 27 CPC has been allowed dehors the provisions in this regard.
The report of the fingerprint expert can be sought before or at the
time of trial before the trial Court, but no such request was made by
the concerned party. During the first appeal, such a report was
sought from the fingerprint expert by the plaintiff, Smt. Vaikunthi,
and prior to obtaining the report, no permission of the Court was
sought. A perusal of this report also shows that it is based on the
photocopy of the sale deed dated 31.03.2012, as the original copy
of the sale deed was not produced before the trial Court or the First
Appellate Court. A certified copy of the sale deed was got exhibited
during the statements of the plaintiff, Vaikunthi (PW-1), and the
sub-registrar, Porsa, Mahendra Singh (PW-2). Therefore, the
fingerprint expert report is based on the photocopy of the sale deed
and was sought by the plaintiff without the permission of the Court.
22. More over, no standard signatures were taken in the presence
of the appellants or before the Court. Why such a report was not
sought earlier by the plaintiff/respondent No.1, Smt. Vaikunthi, is
not got clarified in the application under Order 41 Rule 27 of CPC
filed before the First Appellate Court dated 15.05.2014. It is
observed by the First Appellate Court in paragraph 11 of the
impugned judgment that such a report could have been sought
earlier by the plaintiff, but assuming that the document is material
for the just decision of the case, the application was allowed.
However, in the considered opinion of this Court, having regard to
aforesaid discussion, there was no sufficient ground to allow the
application under Order 41 Rule 27 CPC. The learned First
Appellate Court, dehors the said provisions, allowed the
application; therefore, the admission of the application and the
remand of the case to the trial Court are not sustainable.
23. In view of above, the impugned judgment and decree dated
14.08.2014 is set-aside; and the matter is remitted back to the First
Appellate Court for deciding the appeal on its own merits. The said
appeal is restored for reconsideration by the First Appellate Court
in accordance with law. Parties are directed to appear before the
First Appellate Court on 04.08.2025.
24. With the aforesaid, the appeal stands allowed.
(RAJENDRA KUMAR VANI)
JUDGE
Aman
