Madhya Pradesh High Court

Arun Aawasthy vs Subhash on 20 June, 2025

Author: Avanindra Kumar Singh

Bench: Avanindra Kumar Singh

                                                                1                               SA-1351-2016

                                          IN THE HIGH COURT OF MADHYA PRADESH
                                                       AT JABALPUR
                                                         SA No. 1351 of 2016
                                                   (ARUN AAWASTHY Vs SUBHASH AND OTHERS )



                           Dated : 20-06-2025
                                 Shri R.K. Sanghi - Sr. Advocate along with Shri Raghav Sanghi - learned
                           counsel for the appellant.
                                 Shri Atul Anand Awasthy - Sr. Advocate along with Shri Prakash Kumar
                           Gupta - Advocate for the respondent.

Shri Anil Upadhyaya - Panel Lawyer for the respondent No.3/ State.

This Second Appeal is filed by the appellant/ defendant. Plaintiff Subhash filed Civil Suit No. 09A/2015 against Arun S/o Chandramool Awasthi and others for possession and permanent injunction, which was decided on 10.03.2016 for the suit property situated in villages Hamlapur and Tikari, District Betul as mentioned in paragraph 1 of the judgment of the trial Court .

Learned Trial Court decreed the suit of the plaintiff. On an appeal by the defendant bearing Appeal No. 400037/2016, learned First Appellate Court vide judgment and decree dated 29.09.2016 dismissed the appeal.

In the Second Appeal, it is submitted that the learned First Appellate Court,

although allowed the application of the appellant under Order 41, Rule 27 of C.P.C. but did not remand the case. It was also submitted that the suit was barred by limitation period. In the light of the judgment passed by Hon'ble Supreme Court in the case of Akhilesh Singh Vs. Lal Babu Singh, (2018) 4 SCC 659 , it is submitted that the suit property was diverted, therefore, ad volerum Court fees should have been paid and not on the basis of 20 times of land revenue.

Considered the arguments and perused the record including pleadings, issues

2 SA-1351-2016 and evidence of both the parties.

On perusal of the record, it is seen that learned First Appellate Court, in its judgment starting from paragraphs 9 and 10 has taken on record certified sale- deeds filed along with the application under Order 41, Rule 27 of C.P.C. and also taken on record order of Commissioner dated 9.9.2011. Along with the application 25 sale-deeds were filed. Similarly, along wi th application Batwaranama was also filed.

On perusal of the judgment of learned First Appellate Court, it is not clear as to how the documents which have been taken on record, have been dealt by the learned First Appellate Court. Whether any pleadings in the light of the documents were made by both the parties or not ? Whether additional evidence of both the parties was required to be recorded by granting them opportunity to rebut the

documents and without this procedure documents could not be dealt in by the learned First Appellate Court. In the case of Akhilesh Singh ( Supra), Hon'ble Supreme Court has held in paragraphs 17 and 18 as under :-

"17. The submission of the learned counsel for the respondents that execution of sale deeds was never denied by the present appellant before the High Court, hence no error has been committed by the High Court in relying on the contents in the sale deed cannot be accepted. Even if execution of sale deeds was not denied, the appellate court before which any statement in sale deeds is relied on ought to have given an opportunity to lead evidence in rebuttal or to explain the admission. Opportunity to explain the admission contained in the sale deeds was necessary to be given to the contesting party in the facts of the present

3 SA-1351-2016 c a s e . We thus are of the opinion that the High Court erred in simultaneously proceeding with the hearing of the appeal after admitting additional evidence on record. The High Court ought to have given opportunity to the contesting respondents in the first appeal to lead evidence in rebuttal or to explain the alleged admission as contained in the sale deed, which having not been done, the order and judgment of the High Court deserves to be set aside. The High Court may now proceed to decide the appeal afresh after giving an opportunity to the present appellant to lead evidence in rebuttal. The appeal before the High Court being pending since 1976, we expect that the High Court should conclude the entire process expeditiously preferably within a period of six months from the date of production of this judgment before the High Court. We make it clear that we have not expressed any opinion on merits of the case and it is for the High Court to consider the first appeal on merits afresh and take a decision in accordance with law.

18. In result, this appeal is allowed, judgment and decree of the High Court is set aside. The first appeal be decided by the High Court afresh as observed above. Parties shall bear their own costs."

(emphasis supplied) In the case of Corporation of Madras Vs. M. Parthsartay, (2018) 9 SCC 445 , Hon'ble Supreme Court has held from paragraphs 11 to 21 as under :-

"11. It is an admitted fact that the respondents (plaintiffs) had filed an application under Order 41 Rule 27 of the Code in their first appeals before the first appellate court (CMP No. 1559 of 1993) praying therein

4 SA-1351-2016 for production of additional evidence in appeals. It is also an admitted fact that this application was allowed and the additional evidence was not only taken on record but also relied on by the appellate court as Exts. P-16 to P-20 for allowing the appeals filed by the respondents which, in consequence, resulted in decreeing all the four civil suits.

12. In our considered opinion, the first appellate court committed two jurisdictional errors in allowing the appeals.

13. First, it took into consideration the additional piece of evidence while deciding the appeals on merits without affording any opportunity to the appellants herein (who were respondents in the first appeals) to file any rebuttal evidence to counter the additional evidence adduced by the respondents (appellants before the first appellate court). This caused prejudice to the appellants herein because they suffered the adverse order from the appellate court on the basis of additional evidence adduced by the respondents for the first time in appeal against them. (See LAO v. H. Narayanaiah [LAO v. H. Narayanaiah, (1976) 4 SCC 9] , Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills [Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mills, (2010) 8 SCC 423 :

(2010) 3 SCC (Civ) 392] and Akhilesh Singh v. Lal Babu Singh [Akhilesh Singh v. Lal Babu Singh, (2018) 4 SCC 659 : (2018) 3 SCC (Civ) 131] .)

14. Second error was of a procedure which the first appellate court failed to resort in disposing of the appeals. This also involved a question of jurisdiction.

15. Having allowed the CMP No. 1559 of 1993 and, in our opinion rightly, the first appellate court had two options, first it could have either set aside the entire judgment/decree of the trial court by taking recourse to the provisions of Order 41 Rule 23-A of the Code and remanded the

5 SA-1351-2016 case to the trial court for retrial in the suits so as to enable the parties to adduce oral evidence to prove the additional evidence in accordance with law or second, it had an option to invoke powers under Order 41 Rule 25 of the Code by retaining the appeals to itself and remitting the case to the trial court for limited trial on particular issues arising in the case in the light of additional evidence which was taken on record and invite findings of the trial court on such limited issues to enable the first appellate court to decide the appeals on merits.

16. The first appellate court failed to take note of both the abovementioned provisions and proceeded to allow it wrongly.

17. Due to these two jurisdictional errors committed by the first appellate court causing prejudice to the appellants herein while opposing the first appeals, the judgment rendered by the first appellate court, in our opinion, cannot be sustained legally on merits.

18. The High Court also while deciding the second appeals failed to notice these two jurisdictional legal errors which went to the root of the case. It is for this reason, the impugned order also cannot be legally sustained calling interference by this Court.

19. In the light of the foregoing discussion and having regard to the totality of the facts of the case and to enable the parties to have full and fair trial, we consider it proper to take recourse to the powers under Order 41 Rule 23-A of the Code and accordingly set aside the judgment and decree of the first appellate court to the extent it allows the respondents' appeals on merit but at the same time uphold that part of the order which has allowed CMP No. 1559 of 1993 filed by the plaintiffs for adducing additional evidence and remand the cases to the

6 SA-1351-2016 trial court for retrial of all the four civil suits on merits afresh.

20. All parties to the four civil suits (appellants and the respondents) are allowed to amend their respective pleadings, if they wish to do so. The appellants are allowed to adduce additional evidence in rebuttal. Let the additional evidence taken on record by the first appellate court be remitted to the trial court for its proving in evidence in accordance with law. The trial court, if considered appropriate, can also frame additional issues. Parties will be allowed to adduce their oral and documentary evidence in addition to one already adduced.

21. The trial court will then decide the suits afresh on merits on the basis of entire evidence without being influenced by any of the previous orders/judgments rendered in this case including this order because having formed an opinion to remand the case for retrial, we have refrained from entering into the merits of the issues. Let the trial be over within one year."

(emphasis supplied)

In the light of the judgments passed in Akhilesh Singh (Supra) and Corporation of Madras (Supra) and keeping in view the facts and circumstances of the case, the appeal is admitted on the following substantial questions of law :-