[Cites 4, Cited by 0]
Madhya Pradesh High Court
Pradeep Sharma vs Vidyabai on 17 March, 2026
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
MISC. APPEAL No. 381 of 2025
PRADEEP SHARMA
Versus
VIDYABAI AND OTHERS
Appearance:
Mr. Harish Kumar Dixit - Senior Advocate with Mr. Nimish Hardeniya - Advocate
for the appellant.
Mr. Ashish Shrivastava - Advocate for the respondents.
ORDER
Reserved on : 09.03.2026
Delivered on : 17.03.2026
ORDER
The appellant/defendant has filed this miscellaneous appeal under Order 43
Rule 1(r) of the Code of Civil Procedure, challenging the judgment dated
29.11.2024, passed by the Fourth District Judge, Dabra, District Gwalior in RCA
No.290 of 2021, whereby the learned first appellate court, after allowing the
application under Order 41 Rule 27 CPC, has remanded the matter to the trial
court for fresh decision.
2. For the purpose of convenience, the respondents no.1 to 5 are referred to as
plaintiffs, while the appellant and respondent no.6 to 9 are referred to as
defendants as per their respective status in the civil suit.
3. The plaintiffs filed a suit for declaration and permanent/mandatory
injunction against the defendants, inter alia, pleading that the land bearing Survey
No.348 admeasuring 0.743 hectare, situated in village Sasaan, Tehsil Bhitarwar,
District Gwalior, was originally the joint family property of one Heeralal who was
the husband of plaintiff no.1 and father of plaintiff no.2 to 5. By the order passed
by the Tehsildar on 17.07.1990, the aforesaid land was partitioned between late
Heeralal and other co-sharers, and a part of the land being Survey No.348/3,
admeasuring 0.450 hectare, came to the share of Heeralal. The land was inherited
by the plaintiffs after the death of Heeralal.
4. It is the case of the plaintiffs that during bandobast, the Survey No.348/3
(0.450 hectare) was bifurcated into Survey No.746 (0.050 hectare) and Survey
No.757 (0.010 hectare), total admeasuring 0.060 hectare. They thus allege that the
area of their land was reduced from 0.450 hectare to 0.060 hectare. The plaintiffs
also pleaded that they made an application on 15.12.2014 before the
Commissioner, Gwalior, seeking correction of the aforesaid mistake which
occurred during bandobast. However, the said mistake was not corrected. It is
further pleaded that they made an application before the Sub-Divisional Officer,
Bhitarwar, for correction of the aforesaid mistake. The SDO got the matter
inquired into by the Revenue Inspector, who found the plaintiffs' claim to be
correct. It is also pleaded that the Sub-Divisional Officer immediately stopped the
construction being made by defendant no.1. However, despite this, he continued
to raise construction. The plaintiffs therefore filed the suit seeking declaration of
their title and a decree for permanent/mandatory injunction.
5. The defendants filed a written statement denying the plaint averments.
However, it was not disputed that the land bearing Survey No.348/3 had an area
of 0.450 hectare and after bandobast the same was renumbered as Survey No.746
& 757 with areas 0.05 hectare and 0.01 hectare respectively. The defendants
however stated that the remaining portion of the land was utilized for construction
of a road from Bhitarwar to Karera. They also denied the plaintiffs' claim that they
were in possession of the entire 0.450 hectare land. The defendants also
specifically denied that the plaintiffs ever made any application before the
Commissioner or before the Sub-Divisional Officer seeking correction of the
mistake in the revenue records. It is further pleaded in the written statement that
the complaint made by the plaintiffs against defendant no.1 before the SDO was
also rejected after demarcation of the land of defendant no.1.
6. It is the case of the defendants that they purchased land bearing Survey
No.348/2, admeasuring 0.178 hectare, from its earlier owner Khumaria vide
registered sale deed marked as Exhibit D/2. This land was renumbered as Survey
No.747. The defendants supported the aforesaid claim by the list of renumbered
survey numbers during bandobast marked as Exhibit D/7. Further, the name of the
defendants was duly recorded in the khasra vide Exhibit D/8.
7. The learned trial court vide judgment dated 24.02.2021 dismissed the suit.
Challenging the judgment and decree passed by the trial court, the plaintiffs filed
an appeal which has been allowed by the impugned judgment dated
29.11.2024. The learned appellate court has accepted the application under Order
41 Rule 27 CPC and after setting aside the impugned judgment and decree, has
remanded the matter to the trial court for fresh decision.
8. Challenging the impugned judgment, the learned senior counsel for the
defendants submitted that the appellate court seriously erred in allowing the
application under Order 41 Rule 27 CPC without recording the relevancy of the
documents filed by the plaintiffs at the appellate stage. He referred to paragraphs
29, 30, 31, 33, 34, 39, 41, 42, 45, 46 & 47 of the trial court judgment and
submitted that the learned trial court, after due appreciation of the oral and
documentary evidence, recorded a finding that the plaintiffs have failed to bring
on record the application allegedly filed by them before the Commissioner on
15.12.2014. The plaintiffs also failed to bring on record the documents regarding
the inquiry allegedly conducted by the SDO. The learned counsel thus submitted
that without reversing these findings of the learned trial court, the appellate court
could not have remanded the matter. It is his submission that the documents which
are referred to in paragraphs 45, 46 & 47 of the trial court judgment were still not
filed by the plaintiffs, but the appellate court incorrectly held that such documents
were filed and remanded the matter based upon this incorrect finding. The learned
senior counsel thus submitted that the impugned judgment passed by the appellate
court deserves to be set aside.
9. On the other hand, the learned counsel appearing for the
respondents/plaintiffs supported the impugned judgment. He submitted that after
passing of the judgment and decree by the trial court, the plaintiffs obtained
certain documents which have a material bearing on the outcome of the civil
suit. He submitted that some of the documents were though available with the
plaintiffs and were handed over to their counsel, however, the counsel did not
produce the same before the trial court. After passing of the judgment, the counsel
engaged for filing the appeal advised them to produce those documents on
record. He thus submitted that the documents being relevant for purposes of
decision of the civil suit have rightly been allowed to be taken on record by the
appellate court and therefore the judgment impugned in this appeal is justified in
the facts and circumstances of the case. In support of his submission, the learned
counsel placed reliance upon the Apex Court judgment in the case of Sanjay
Kumar Singh Vs. State of Jharkhand, reported in (2022)7 SCC 247.
10. Considered the arguments and perused the records.
11. The issue involved in this case hinges around the scope of Order 41 Rule 27
of CPC regarding power of appellate court to admit new evidence in the case. The
said provision lays down three contingencies in which new evidence can be
permitted by the appellate court. The Apex Court very recently again interpreted
the provisions of Order 41 Rule 27 CPC in the case of Gobind Singh & others
Vs. Union of India & others, reported in 2026 SCC Online SC 339. After
referring to provision, the Apex Court held in para 11.3 & 11.4 as under:
11.3. Rule 27, being couched in negative terms, makes it abundantly clear that
parties to an appeal are not entitled to adduce additional evidence, whether oral or
documentary, save and except in the circumstances expressly enumerated therein.
The provision contemplates only three eventualities in which additional evidence
may be permitted: first, where the court which passed the decree has refused to
admit evidence which ought to have been admitted; second, where the party seeking
to adduce such evidence establishes that, notwithstanding the exercise of due
diligence, the evidence was not within its knowledge or could not have been
produced at the time when the decree under appeal was passed; and third, where the
appellate court itself requires any document to be produced or any witness to be
examined in order to enable it to pronounce judgment or for any other substantial
cause.
11.4. Accordingly, it is only upon satisfaction of any of the aforesaid three
contingencies that an application under Order XLI Rule 27 of CPC can be
entertained. Sub-rule (2) of the said provision further mandates that where the
appellate court forms an opinion that additional evidence is required to be admitted,
it must record the reasons for such admission. While elucidating the scope and
object of Order XLI Rule 27 of CPC, this Court, in Union of India v. Ibrahim
Uddin7, undertook an exhaustive analysis of the provision. The relevant extract is
reproduced hereinafter:--
"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 41 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 evidence. Thus,
the provision does not apply, when on the basis of the 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.
xxx xxx xxx
38. Under Order 41 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.
xxx xxx xxx
41. The words "for any other substantial cause" must be read with the word
"requires" in the beginning of the sentence, so that it is only where, for any other
substantial cause, the appellate court requires additional evidence, that this Rule
will apply e.g. when evidence has been taken by the lower court so imperfectly that
the appellate court cannot pass a satisfactory judgment."
(emphasis supplied)
Thus, a holistic reading of the aforesaid decision makes it clear that the appellate
court's inquiry, while considering an application for leading additional evidence, is
confined to examining whether such evidence is necessary to remove a lacuna in the
case. More importantly, the appellate court may permit additional evidence only
upon being satisfied that the conditions expressly stipulated under Order XLI Rule
27 of CPC are fulfilled. The parties do not possess any vested or automatic right to
seek admission of additional evidence at the appellate stage. Consequently, the
provision has no application where the appellate court is in a position to render a
satisfactory and reasoned judgment on the basis of the evidence already available
on record.
12. Keeping in view aforesaid legal preposition, the facts of this case needs to
be considered.
13. The trial court in its judgment dated 24.02.2021 recorded a specific finding
in paragraphs 45, 46 & 47 that the plaintiffs have not produced on record the
application dated 15.12.2014 allegedly filed by them before the Commissioner
and also the records pertaining to the inquiry got conducted by the Sub-Divisional
Officer, Bhitarwar. Holding so, the learned trial court recorded the findings in
paragraph 47 of its judgment, which is as under :
"47. यह सप त प प ह प ई क र ज अप चन रत ह उन नय लय समक
स क पस!त रत हए उस स प$त रन ह त ह। हसगत प रण अ ल न रन र
यह प ट ह त ह प हसगत प रण म द*गण द र अ न इन अप चन - प
$-द $स म * गई उक य/ ह* त!पट 1ण/ थ* और एस.ड*.ओ आदश र र जस
पनर*क द र * गई ज- च म * द*गण * 1पम उक र त!पट 1ण/ तर* स म
ह न य गय थ , स प$त रन पलए न त ऐस ई आ दन ज पदन- 15.12.14
आय!क मह दय गपलयर पस!त प य गय और न ह* प स* र जस पनर*क *
ओर स * गई प स* ज- च स स-$-प त ई दस ज श प य गय अथ/ त; $-द $स *
य/ ह* पशगत रन ल द*गण उ र क अप चन स क स असमपथ/त रह
अथ/ त; उन समथ/न म स क अ रह ।"
14. Besides this, the learned trial court has discussed the oral and documentary
evidence and recorded findings in favour of defendants while dismissing the suit
filed by the plaintiffs.
15. In appeal, the plaintiffs filed an application under Order 41 Rule 27 of the
Code of Civil Procedure. As many as nine documents were produced, out of
which it is stated in the application that the documents mentioned at serial no.1, 6
& 7 were already in their possession while the other documents have come into
existence subsequent to passing of the judgment and decree by the trial
court. However, it is not disputed by the counsel for the plaintiffs and the
defendants that the documents which are referred to in paragraphs 46 & 47 of the
judgment passed by the trial court are still not produced in appeal.
16. The learned appellate court has mentioned about the observation made in
paragraph 47 by the trial court in paragraph 17 of its judgment. Thereafter, in
paragraph 18, the appellate court referred to various documents sought to be
produced on record along with the application. In paragraph 19, the appellate
court noted the objection of the defendants and thereafter in paragraph 20, the
appellate court held as under :
"20- हसगत; प रण म अ *ल थ=गण / द*गण अन!त ष दप@गत रखत हय आ दन
र प च र प य ज य त अ *ल थ=गण द र अप चन * !नर BपC रत हय यह स क
पस!त * ह प $-द स दDर न नय स E नमर ह न स उस * जम*न ! छ अ-श म
र पदय गय ह। पजस सम- म य ग प च रण नय लय द र अ न पनण/य * णJ
47 म यह पनषष/ पदय ह प $-द स * य/ ह* त!पट 1ण/ ह न $ ज1द *
अ *ल थ=गण द र ई य/ ह* नह*- * गई ह और ज अप चन पलय गय ह, उक
सम- म दस ज * श नह*- प य गय हL , ज$प यह पसद रन र अ *ल थ=गण
र ह। उक दसवज क इस पकम पर अप ल र गण क द र पश ककय गय ह ज प
प रण पनर रण पलय उपचत ए - आ श हL , त$ प लम ई अथ/ नह*- रह
ज त , जह- प प रण * अ-पतम स!न ई शष थ*। फलसर , आ दन स* र र उक
दस ज - अप लख र पलय ज त ह।"
17. The term "उक दस ज "- referred to above relates to the documents
mentioned in para 47 of its judgment by learned trial court i.e. the application
dated 15.12.2014 and the report submitted by Revenue Inspector. Admittedly
these documents are still not produced before the appellate court.
18. It is thus seen that the appellate court has not discussed about the relevancy
of the documents sought to be produced by the plaintiffs along with the
application. The observations made by the appellate court in paragraph 20 relates
to the documents which are referred to in paragraph 47 of the trial court judgment
were not produced by the plaintiffs. The documents sought to be produced at
appellate stage are the new documents and the appellate court was required to
record its finding regarding the relevancy of these documents for purposes of
decision of the suit. It is thus found that the application under Order 41 Rule 27 of
the Code of Civil Procedure has been allowed by the learned appellate court on
incorrect factual foundation.
19. In view of the aforesaid, the remand of the matter to the trial court vide
impugned judgment dated 29.11.2024 is found to be unsustainable. The judgment
is accordingly set aside. The learned First Appellate Court is required to
reconsider the application under Order 41 Rule 27 of the Code of Civil Procedure,
giving specific finding with regard to the relevancy of the documents produced by
the plaintiffs, and thereafter decide the appeal afresh in accordance with law.
20. The appeal is therefore accordingly allowed and disposed of.
(ASHISH SHROTI)
JUDGE
bj/-
