Madhya Pradesh High Court
Parsingh S/O Rana vs Tarsingh on 17 March, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:7151
1 MA-2324-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 17th OF MARCH, 2025
MISC. APPEAL No. 2324 of 2025
PARSINGH S/O RANA
Versus
TARSINGH AND OTHERS
Appearance:
Shri Yash Pal Rathore - Advocate for the appellant.
ORDER
The present Misc. Appeal is filed under Order 43 Rule 1Q of CPC
challenging the remand order dated 16.12.2024 passed by Additional District
Judge, Jhabua in RCA No.5/2022 whereby the judgment and decree dated
16.02.2022 passed in Civil Suit No. RCSA 105/2017 has been set aside and
remanded with the direction to record the additional evidence.
FACTS OF THE CASE IN SHORT ARE AS UNDER:-
2. The respondent being a plaintiff filed a suit for declaration,
partition, possession and permanent injunction against the defendants in
respect of agricultural land bearing Survey Nos. 44, 55, 110 and 114 total
area 1.09 hectare of village Bamansemaliya tehsil and district Jhabua
(hereinafter referred to as "suit land"). According to the plaintiff, the
aforesaid suit land was recorded in the name of father of the defendant Nos.
1 and 2 Nema and after the death of Nema, the same was recorded in the
name of defendant No. 1 and mother Hirki whereas the name of plaintiff and
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defendant No.2 were also liable to be mutated alongwith their names.
3. The plaintiff is having 1/3 rd share in the said suit land. He demanded
the partition from defendant No.1 in the month of June 2017 but he denied
the same. Thereafter, he filed an application under Section 178 of MPLRC
before Tehsildar which came to be dismissed. The defendant filed the written
statement and after framing issues recorded an evidence, vide order dated
16.02.2022 the civil suit was dismissed. Being aggrieved by the aforesaid
judgment and decree, the plaintiff preferred the first appeal before the
Additional District Judge, Jhabua. During the pendency of the appeal, he
filed an application under Order 41 Rule 27 CPC on 31.05.2024 in order to
take true copy of partition deed on record. According to the plaintiff, he is an
illiterate tribal person and this document was lying in a house but he was not
aware about his importance, therefore, due to ignorance the said document
could not be produced before the Court. The said application was not
opposed by the defendants by filing return.
4. The learned ADJ considered the appeal on merit as well as an
application and came to the opinion that this partition deed is an important
piece of evidence and the parties are liable to be given an opportunity to
prove the same by way of evidence, hence set aside the judgment and decree
and remanded the civil suit back to the trial Court. Therefore, now the
defendant No.1 has filed this appeal before this Court.
5. Learned counsel for the appellant submits that the learned Court
ought to have decided the application under Order 41 Rule 27 CPC
alongwith an appeal as held by the Apex Court in the case of Union of India
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vs. Ibrahim Uddin and Another reported in (2012) 8 SCC 148 . On merit also,
he submitted that the partition deed was available in the house but the same
was not produced by the plaintiff, therefore, the same has wrongly been
considered by the First Appellate Court at belated stage.
6. So far as first contention of learned counsel for the plaintiff is
concerned, that the application ought to have been decided alongwith an
appeal. In para 2 of the judgment, the learned Court has observed that this
application as well as appeal both are being decided together. After
considering the merit of the case the learned Court found that, the document
filed as an additional evidence with the application is having bearing on the
facts of the case and the same is liable to be admitted as an additional
evidence.
7. Shri Yash Pal Rathore, learned counsel appearing on behalf of the
appellant further submits that in para 15 of the judgment, the trial Court has
restrained from passing any order on merit of the case which established that
only application under Order 41 Rule 27 was considered and allowed.
8. As per the judgment in the case of Ibrahim Uddin (supra) and the
language of Order 41 Rule 27 application for taking document on record is
liable to be heard at the time of final hearing of the appeal. Therefore, the
application under Order 41 Rule 27 was considered at the time of final
hearing of the appeal but after considering the facts on merit the learned
Court found that this additional document is liable to be proved before the
trial Court as it is an important piece of evidence for adjudication of the
issues between the parties. Therefore, the learned ADJ has rightly did not
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make any finding on merit of the case and allowed the application by setting
aside the judgment and decree. Any observation made on the merit of the
case would naturally affect the interest of the party before the trial Court,
therefore, the requirement of the law has been fulfilled by considering the
application alongwith merit of the case but the moment Court found that this
partition deed is an important piece of evidence hence has rightly did not
observe any opinion on merit and remanded the matter back to the trial
Court.
9. The learned ADJ has placed on the judgment passed by the Apex
Court in the case of Sanjay Kumar Singh vs. State of Jharkhand reported in
2022 LiveLaw (SC) 268 which is reproduced below:-
"It is true that the general principle is that the appellate court
should not travel outside the record of the lower court and cannot
take any evidence in appeal. However, as an exception, Order 41
Rule 27 CPC enables the appellate court to take additional
evidence in exceptional circumstances. It may also be true that the
appellate court may permit additional evidence if the conditions
laid down in this Rule are found to exist and the parties are not
entitled, as of right, to the admission of such evidence. However,
at the same time, where the additional evidence sought to be
adduced removes the cloud of doubt over the case and the
evidence has a direct and important bearing on the main issue in
the suit and interest of justice clearly renders it imperative that it
may be allowed to be permitted on record, such application may
be allowed. Even, one of the circumstances in which the
production of additional evidence under Order 41 Rule 27 CPC by
the appellate court is to be considered is, whether or not the
appellate court requires the additional evidence so as to enable it
to pronouncement judgment or for any other substantial cause of
like nature. As observed and held by this Court in the case of A.
Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17
SCC 713, the admissibility of additional evidence does not depend
upon the relevancy to the issue on 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.
It is further observed that the true test, therefore is, whether the
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appellate court is able to pronounce judgment on the materials
before it without taking into consideration the additional evidence
sought to be adduced".
10. In view of above, I do not find any error in the impugned order
dated 16.12.2024. Accordingly, this Misc. Appeal stands dismissed.
(VIVEK RUSIA)
JUDGE
Vatan
