Madhya Pradesh High Court
Sunil Upadhaya vs Nitin Mathur on 6 May, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:10050
1 MA-4879-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
ON THE 6 th OF MAY, 2025
MISC. APPEAL No. 4879 of 2022
SUNIL UPADHAYA AND OTHERS
Versus
NITIN MATHUR AND OTHERS
Appearance:
Shri Sameer Kumar Shrivastava - Advocate for the appellants.
Shri Kunal Suryavanshi, learned counsel for the respondent [R-9].
ORDER
1. The defendants / appellants have filed this appeal under Order 43
Rule (u) of CPC challenging the judgment dated 30/09/2022 passed by
Principal District Judge, Shivpuri in Civil Appeal No. 5-A/2019 and Civil
Appeal No. 10-A/2019, whereby, learned Appellate Court allowed the
application under Order 41 Rule 27 of CPC filed by the plaintiffs after
setting aside the judgment and decree passed by the learned Trial Court and
remanded the matter for fresh decision after taking evidence as per the
aforesaid application.
2. The facts necessary for decision of this case are that the plaintiff
filed the present suit for declaration and injunction interalia on the ground
that suit property is infact public road and the defendants encroached upon
the said land.
3. On the other hand, defendants filed their written statement
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claiming title over the property based upon the registered sale deed dated
26/09/1996. Thus, the issue before the learned Trial Court was merely as to
whether the suit property is a public road or it is the private property of the
defendants.
4. Learned Trial Court after taking evidence of both the sides
including that of the respondent / Municipal Council vide judgment and
decree dated 27/12/2018 dismissed the suit. By appreciating evidence in para
19 & 20 of the judgment, it has been held that suit property is not a public
road and is private property of the defendants. In paragraph 22 of the
judgment, learned Trial Court has held that the plaintiffs have not challenged
the defendants sale deed.
5. Being aggrieved, two separate appeals were filed. One by the
plaintiffs and other by the defendant - Municipal Council. Along with appeal
filed by the plaintiffs, they also filed two applications under Order 41 Rule
27 of CPC. Learned Appellate Court has allowed both the applications and
has remanded the matter to the learned Trial Court for fresh adjudication.
6. Learned counsel for the appellants / defendants submit that
Appellate Court seriously erred in exercising jurisdiction under Order 41
Rule 27 of CPC inasmuch as without considering the merits of the appeal,
the application under Order 41 Rule 27 of CPC has been allowed. It is his
submission that aforesaid applications could have been allowed only if the
Appellate Court is of the view that additional evidence sought to be adduced
is relevant for the decision of the case and such conclusion could have been
arrived at only after considering the case .
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7. Learned counsel for the appellants further submit that the
application filed by the plaintiffs were wholly vague inasmuch as there is no
averment made in the application as to how the documents sought to be
produced are relevant for the decision of the case. He further submits that
there is no due deligence shown by the plaintiffs for not filing the
documents before the learned Trial Court. He placed reliance upon the
judgment of this Court delivered in the case of Jagnnath and Another vs.
Karuna and Ors reported in 2018 (3) MPLJ 98 and another judgment
delivered in the case of Murari Lal vs. Ram Kumar Ojha and Another
reported in 2015 (1) MPLJ 243. He further placed reliance upon the
judgment delivered by the Apex Court in the case of Union of India vs.
Ibrahim Uddin and Anr. reported in (2012) 8 SCC 148 with regard to scope
of Appellate Court while dealing with the application under Order 41 Rule
27 of CPC.
8. Nobody appeared on behalf of respondents / plaintiffs, even
though they are served.
9. Learned counsel appearing on behalf of Municipal
Council/respondent submits that applications were filed by the plaintiffs
based upon documents supplied under RTI BY IT. He supports the impugned
judgment passed by the learned Appellate Court.
10. Considered the arguments and perused the record.
11. As seen from the record, the main issue between the parties
before learned Trial Court was whether the suit property is a public road or
private property of the defendants. The learned Trial Court after appreciating
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the oral and documentary evidence led by both the sides has recorded
categorical finding that the suit property is not a public road and is infact
private property of defendants. The suit was accordingly dismissed. Before
learned Appellate Court, applications under Order 41 Rule 27 of CPC were
filed by the plaintiffs. In the first application, plaintiffs referred to a counter
claim filed by one Kashinath Vyas, who happened to be vendor of the
defendants. It was submitted that suit property in the other suit is a road
adjoining to the present suit property. However, from reading the entire
application, it is not clear as to what was the fate of the counter claim filed
by Kashinath Vyas. Merely on the basis of counter claim, no finding can be
given by the learned Trial Court unless the judgment passed on the counter
claim was also placed on record. Another application filed by the plaintiffs is
in relation to certain documents obtained under RTI from Municipal
Council. Again from the averments made in the application, it is not clear as
to whether the documents relate to the suit property or not? Further the
documents were well within the possession of the Municipal Council, but
were never placed before the learned Trial Court.
12. The Apex Court in the case of Ibrahim Uddin (supra) has dealt
with the scope of jurisdiction of the Appellate Court in dealing with the
application under Order 41 Rule 27 of CPC. In paragraph 36, 38 & 39, the
Apex Court has held as under :--
"36. 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 XLI Rule 27 CPC enables the Appellate Court to take
additional evidence in exceptional circumstances. The Appellate Court may permit
additional evidence only and only if the conditions laid down in this rule are
found to exist. The parties are not entitled, as of right, to the admission of such
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evidence. Thus, provision does not apply, when on the basis of evidence on record,
the Appellate Court can pronounce a satisfactory judgment. The matter is entirely
within the discretion of the court and is to be used sparingly. Such a discretion is
only a judicial discretion circumscribed by the limitation specified in the rule
itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy & Ors. , AIR 1963 SC
1526; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors. , AIR
1965 SC 1008; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479;
and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553).
37.xxxxxxxxxxxxxxxxxxx
38. Under Order XLI , Rule 27 CPC , 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. It does not entitle the appellate
Court to let in fresh evidence only for the purpose of pronouncing judgment in a
particular way. In other words, it is only for removing a lacuna in the evidence that
the appellate Court is empowered to admit additional evidence. [Vide: Lala
Pancham & Ors. (supra) ].
39. It is not the business of the Appellate Court to supplement the evidence adduced
by one party or the other in the lower Court. Hence, in the absence of satisfactory
reasons for the non- production of the evidence in the trial court, additional evidence
should not be admitted in appeal as a party guilty of remissness in the lower court is
not entitled to the indulgence of being allowed to give further evidence under this
rule. So a party who had ample opportunity to produce certain evidence in the lower
court but failed to do so or elected not to do so, cannot have it admitted in appeal.
(Vide: State of U.P. v. Manbodhan Lal Srivastava , AIR 1957 SC 912;
and S. Rajagopal v. C.M. Armugam & Ors. , AIR 1969 SC 101)."
13. As observed by Apex Court, it is not the business of Appellate
Court to supplement the evidence adduced by one party or the other before
the Trial Court. There was reason much less the satisfactory one, offered by
plaintiffs for not filing the additional evidence before the Trial Court.
Allowing additional evidence in such circumstances would amount to filling
up the lacuna.
14. It is further found that the document sought to be produced as
additional evidence are not relevant for decision of the suit. By way of first
application, the copy of counter claim filed by Kashinath Vyas was sought
to be produced. Apparently, the property in the counter claim was different
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than the suit property in this suit. Further, it is not pleaded as to what
happened to the counter claim.
15. By way of other application, the documents obtained under RTI
were sought to be produced. However, there is no averment made in the
application showing relevancy of these documents.
16. Thus, in the absence of documents being relevant, the learned
Appellate Court could not have set aside the judgment and decree passed by
the learned Trial Court and has ordered remand of the case. It is settled in
law that the Appellate Court should make effort to decide the case on merit
based upon the evidence already available on record unless it comes with a
specific conclusion that the additional documents sought to be produced are
relevant for the decision of the case and without which judgment cannot be
pronounced. Thus, in the absence of plaintiff having established the
relevance of the documents, application under Order 41 Rule 27 of CPC
could not have been allowed.
17. In view of the aforesaid, judgment passed by the learned
Appellate Court is found to be unsustainable in law and is beyond the scope
of application under Order 41 Rule 23-A of CPC. Accordingly, the judgment
dated 30/09/2022 passed by Principal District Judge, Shivpuri in Civil
Appeal No. 5-A/2019 and Civil Appeal No. 10-A/2019 are hereby set aside.
The matter is remanded to the first Appellate Court to decide the appeal on
merit based upon the evidence already available on record
18. With the aforesaid, instant appeal is allowed.
NEUTRAL CITATION NO. 2025:MPHC-GWL:10050
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(ASHISH SHROTI)
JUDGE
Durgekar
