Rajasthan High Court

Roopsingh Thr Lrs And Ors vs Raghunath Thr Lrs And Anr on 26 July, 2022

Bench: Sudesh Bansal

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

                  S.B. Civil Second Appeal No. 70/2018
     1.    Roopsingh S/o Prabhudayal Deceased
           1/1. Smt. Rasal Gaur W/o Late Roopsingh Gaur,
           1/2.Yogesh Gaur S/o Late Roop Singh Gaur,
           1/3.Rajesh Gaur S/o Late Roop Singh Gaur.,
           All R/o Malakheda, District Alwar Raj
     2.    Mansingh S/o Prabhu Singh, R/o Village Malakheda,
           Tehsile And District Alwar Rajasthan
     3.    Hari Singh S/o Prabhu Singh, R/o Village Malakheda,
           Tehsile And District Alwar Rajasthan
                                                            ----Appellant-Plaintiffs
                                       Versus
     1.    Raghunath S/o Heera Lal R/o Village Lili, Sub Tehsile
           Malakheda, District Alwar, Rajasthan Deceased through
           LRs.
           1/1. Smt. Phooli Devi W/o Late Ragunath,
           1/2.Ramhat S/o Late Ragunath, R/o Village Lili, Tehsil
           Malakheda District Alwar Rajasthan
           1/3. Ratan S/o Late Ragunath,
           1/4.Brijendra S/o Late Ragunath, R/o Village Lili, Tehsil
           Malakheda District Alwar Rajasthan
           1/5. Mam Chand S/o Late Ragunath,
           All 1/1 to 1/5 R/o Village Lili, Tehsil Malakheda District
           Alwar Rajasthan
           1/6. Smt. Sugana D/o Late Ragunath W/o Nadan, R/o
           Sarhana Tehsil Kumher District Bharatpur Rajasthan.
     2.    Smt. Suman Bai W/o Inder Singh Dhirawat D/o Roop
           Singh, Gaur, R/o Roop Singh Gaur R/o Opposite Of Smrat
           Cinema Hall, Kayaklp Hospital Sunrise Road, Siker,
           District Sikar Raj.
                                                    ----Respondent-Defendants

    For Appellant(s)         :     Mr. Mohit Gupta
    For Respondent(s)        :



               HON'BLE MR. JUSTICE SUDESH BANSAL

                                    Judgment

REPORTABLE:-
    26/07/2022




                                             (2 of 9)                     [CSA-70/2018]

1. The appellant-plaintiffs (hereafter referred to "Plaintiffs")

have preferred this second appeal under Section 100 of CPC

assailing the judgment and decree dated 11.12.2017 passed in

civil first appeal No.143/2006 by the Court of Additional District

Judge No.1, Alwar, affirming the judgment and decree dated

13.10.2006 passed in civil suit No.19/04 by the Court of

Additional Civil Judge (Jr. Division) and Judicial Magistrate No.4,

Alwar whereby and whereunder the appellant-plaintiffs' suit for

specific performance has been dismissed on merits.

2. Heard learned counsel for appellants and perused the

impugned judgments and record.

3. Learned counsel for appellants has raised arguments that

before the first appellate court an application under order 41 Rule

27 CPC was filed by appellants on 30.04.2015, but the first

appellate court has neither considered nor decided the said

application while dismissing the first appeal vide impugned

judgment dated 11.12.2017. Counsel has argued that it was the

duty of the first appellate court to consider and decide the

application under Order 41 Rule 27 CPC filed by appellants before

or at the time of deciding the first appeal finally.

4. Reliance has been placed upon the judgment of Hon'ble the

Supreme Court in Hakam Singh Vs. State of Haryana &

Ors.A[IR (2008) SC 2990], Jitender Singh and Anr minor

through Mother Vs. Mehar Singh & Ors. [AIR 2009 SC 354]

and the judgment of Rajasthan High Court Kishanlal & Ors. Vs.

Ramchandra & Ors. [AIR 2020 (Raj) 145].

5. This is a case where the appellants instituted a civil suit for

specific performance on 01.06.2002, on the basis of an

(3 of 9) [CSA-70/2018]

agreement to sell dated 08.07.1991. The case pleaded by

appellants in the plaint is that respondent-defendant-Raghunath

agreed to sell his 1/12th share in agricultural land of Khasra

No.802 measuring 6 bigha 9 biswa against total sale

consideration of Rs.15,000/-, and after receiving full sale amount,

he executed the agreement on 08.07.1991 on a stamp paper of

Rs.5/-. A separate receipt for sale amount Rs.15,000/- was also

said to be executed and handed over.

6. It was contended that the possession of 1/12th share was

delivered to plaintiffs with assurance that as and when plaintiffs

would like to get sale deed executed, the same will be executed.

Plaintiffs for the first time issued notice on 22.05.2002 for getting

sale deed registered, and thereafter filed the present suit on

01.06.2002.

7. Respondent-defendants (hereafter referred to "defendants")

filed written statement on 29.08.2002 and categorically denied

for execution of agreement dated 08.07.1991, as well as any

receipt of sale amount of Rs.15,000/-, and also denied for

delivery of possession of his 1/12th share to plaintiffs. The

agreement in question and receipt were alleged to be fake

documents. Further defendant alleged that the suit is beyond

limitation and is liable to be dismissed.

8. The trial court after hearing of rival parties framed issues and

recorded evidence of both parties.

The trial court observed that plaintiffs could not prove the

execution of agreement as well as the factum of delivering of

possession. The statement of plaintiffs and their witnesses regarding

delivery of possession was found contradictory. It was also observed

(4 of 9) [CSA-70/2018]

that the agreement is non-specific, having no details, and further that

the suit has been filed after a delay of 11 years. Thus, finally the trial

court dismissed plaintiff's suit on merit vide judgment dated

13.10.2006.

It was noticed by the trial court that plaintiffs referred about one

revenue suit filed by defendant before SDO Court for declaration and

permanent injunction. The resort was taken in order to patch up the

period of limitation, however such stand was not accepted by the trial

court.

9. Plaintiffs preferred the first appeal against the judgment and

decree dated 13.10.2006. Before the first appellate court, during

pendency of appeal plaintiffs sought to produce his written statement

dated 04.11.2003 and the final order of dismissal of suit dated

22.03.2006, relating to the revenue suit for declaration and permanent

injunction instituted by defendants before the SDO Court on

18.05.2002; regarding which reference was given by the plaintiffs

before the trial court also.

10. It appears from the order sheets and record of the first appellate

court that plaintiffs though moved application under Order 41 Rule 27

CPC on 30.04.2015, but thereafter till hearing of the first appeal on

merits on 08.12.2017 and passing the judgment on 11.12.2017 never

pressed and pursued his application. There is nothing on record to

show that plaintiffs had ever pressed or pursued application under

Order 41 Rule 27 CPC requesting to the first appellate court to consider

the additional documents. It is apparent that in absence of pursuation

by appellants on the application under Order 41 Rule 27 CPC, the first

appellate court did not advert to the application and not considered

additional documents sought to be produced alongwith the application

and finally dismissed the first appeal, without passing any order on the

application under Order 41 Rule 27 CPC.

(5 of 9) [CSA-70/2018]

11. Never the less, this Court, in order to appreciate arguments of

plaintiffs that application under Order 41 Rule 27 CPC has not been

decided and the additional document sought to be produced before the

first appellate court having not been considered, have gone through

contents of application and to the additional documents sought to be

produced. By way of application, plaintiffs sought to produce their

written statement dated 04.11.2003, submitted in the revenue suit for

declaration and permanent injunction filed by defendants before the

S.D.O. Court on 18.05.2002, and one order sheet dated 22.03.2006,

whereby and whereunder this revenue suit was dismissed in default

and for non-prosecution. Counsel for appellant-plaintiffs has argued

that their additional documents are being produced, only for the

purpose of explaining delay in filing the suit for specific performance

and to show the accrual of cause of action. As per record, the plaintiffs

had instituted the present suit for specific performance on 01.06.2002,

therefore subsequent dismissal of revenue suit of respondent on

22.03.2006, due to non-prosecution and in default does not improve

the case of limitation for plaintiffs.

12. That apart, this Court has also noticed that it is not the case of

the appellants that counsel for appellants made his arguments on the

application under Order 41 Rule 27 CPC at the time of making his

arguments on the first appeal or he drew attention of the first appellate

court to advert on his application under Order 41 Rule 27 CPC. Even in

the memorandum of the present second appeal or otherwise, there is

nothing on record to show that appellant-plaintiffs did ever argued or

pressed their application under Order 41 Rule 27 CPC before the first

appellate court after filing the same on 30.04.2015. Had the appellants

would have argued and pressed their application under Order 41 Rule

27 CPC before the first appellate court and if the same was left

unconsidered while disposing of the first appeal finally, it was opened

(6 of 9) [CSA-70/2018]

for the appellants to move an application for review before the first

appellate court itself asking to pass order on the pending application

under Order 41 Rule 27 CPC. In absence of any such material, there is

sufficient reason before this Court to draw an inference that from the

side of appellant-plaintiffs themselves, they never pursued their

application under Order 41 Rule 27 CPC after filing the same. In such

facts and circumstances, it is not permissible to appellants to contend

at the stage of second appeal that because the first appellate court has

left the application under Order 41 Rule 27 CPC undecided, therefore

the matter be remanded back to the first appellate court on this count

alone.

13. As far as judgments of the Hon'ble Supreme Court and co-

ordinate bench of Rajasthan High Court relied upon by learned counsel

for appellant-plaintiffs referred hereinabove are concerned, the

principle of law enunciated in the aforesaid judgments is that it is the

duty of the first appellate court to deal with the application under Order

41 Rule 27 CPC on merits before or at the time of deciding the first

appeal finally. There is no disagreement nor there can be any other

dissent opinion to the aforesaid proposition of law expounded by the

Hon'ble Supreme Court. However, this proposition of law does not

absolve the party concerned, from its first duty to argue and press

their application under Order 41 Rule 27 CPC, inviting the attention of

the first appellate court to consider and decide their application for

production of additional evidence. When the party himself is careless

and negligent and further neither serious nor press his application

before the first appellate court, at the later stage and before the higher

forum of appeal, he cannot be allowed to take an advantage or resort

to the aforesaid proposition of law. Thus, in the given facts and

circumstances of case and considering the conduct of appellant-

(7 of 9) [CSA-70/2018]

plaintiffs themselves before the first appellate court, the judgments

relied upon by learned counsel for appellants are of no help to them.

14. At this Juncture, this Court is not oblivious about proposition of

law regarding production of additional evidence at the appellate stage.

The provision of Order 41 Rule 27 CPC enable the appellate court to

take additional evidence, in exceptional circumstances. The law is well

settled that appellate court may permit additional evidence, if

conditions laid down under the provision of Order 41 Rule 27 CPC are

found satisfied, or even if production of additional evidence is

considered as helpful for the appellate court to decide the appeal

effectively and judiciously if additional evidence is admissible and

relevant to germane issues involved in the appeal, certainly it is well

within jurisdiction of the appellate court to consider that additional

evidence within parameter of law to advance justice to the parties.

In support of this proposition of law, reference can be made to

judgments of Hon'ble the Supreme Court in case of A. Andisamy

Chettiar Vs. A. Subburaj Chettiar [(2015) 17 SCC 713], Wadi Vs.

Amilal & Ors. [(2015)1 SCC 677] and the recent judgment delivered

in case of Sanjay Kumar Singh Vs. The State of Jharkhand [2022

Live Law (SC) 268].

15. As far as, merits of the second appeal are concerned, there are

concurrent findings of fact against plaintiffs where the agreement in

question dated 08.07.1991 has not been found proved. There is no

reliable evidence from the side of appellants to show payment of sale

consideration of Rs.15,000/- and delivery of possession of 1/12th share

by defendants. The delay and latches on the part of appellants in filing

the suit is apparent and have remained unexplained. Even if additional

documents sought to be produced are considered, then also the same

are of no relevance to explain the delay of 11 years in filing the suit for

specific performance.

(8 of 9) [CSA-70/2018]

16. For the aforesaid discussion, this Court is of the considered

opinion that in given facts, no substantial question of law involved in

the present second appeal, findings of fact regarding non-prove of

agreement, non-payment of sale amount and non-delivery of

possession as well as delay and latches are based on due appreciation

of evidence on record. Learned counsel for appellants could not point

out any perversity in such fact findings nor make out any substantial

question of law in respect of the judgment and decree passed by

courts below.

17. The Hon'ble Supreme Court in C.Doddanarayana Reddy

Vs. C.Jayarama Reddy [(2020) 4 SCC 659], while discussing

the jurisdiction of the High Court to interfere with the finding of

fact under Section 100 CPC has held that though the High Court

could have taken different view acting as the trial Court but once,

two Courts below have returned finding which is not based upon

any misreading of material documents, nor against any provision

of law neither could it be said that any judge acting judicially and

reasonably could have reach such a findings, then, the Court

cannot be said to have erred. Relying upon the previous judgment

the Supreme Court has held as under:-

"Recently in another judgment reported as State of Rajasthan v. Shiv Dayal [(2019)8 SCC 637], it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under: "16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially

(9 of 9) [CSA-70/2018]

could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."