Vikas Giri ........Appellant/ vs Chitra Chauhan And Another
2023 Latest Caselaw 1617 UK

HIGH COURT OF UTTARAKHAND AT NAINITAL

                Second Appeal No.66 of 2023


Vikas Giri                               ........Appellant/Plaintiff

                                Versus

Chitra Chauhan and Another                    ........Respondents

Present:-
      Mr. Jitendra Chaudhary and Mr. Anant Dhaka, learned
      counsel for the appellant-plaintiff.

Hon'ble Pankaj Purohit, J.

Since the respondents - defendants never participated in the proceedings either at the trial or at the appellate stage, the second appeal is being disposed of in their absence, without issuing any notice to the respondent - defendant (See order 41 Rule 4 CPC).

2.           Heard       learned         counsel       for        the
appellant/plaintiff.


3.           Admit the     Second Appeal, on substantial

questions of law, which are as hereunder:-

1. Whether after taking on record additional evidence during appellate proceedings, the appellate court is bound to consider said additional evidence or not ?, and by ignoring said additional evidence can decide the appeal on merit?

2. Whether while taking additional evidence on record, the appellate court have to follow the provisions contained under Order 41 rule 28 & 29 of CPC or not?

4. The case of the appellant - plaintiff is that by way of an unregistered deed dated 28.11.2005, he was handed-over possession of the suit property on payment of a sum of `2,05,000/- and he was placed in possession of the property in dispute. Later on, by the impugned sale-deed, a registered one, which was sought to be challenged by the appellant - plaintiff by filing an Original Suit No. 7 of 2019, Vikas Giri Vs. Smt. Chitra Chauhan & Another, the said property was transferred in favour of Smt. Chitra Chauhan, respondent - defendant no.1 by Dharampal Giri, respondent - defendant no.2 on 18.12.2018. By the strength of this registered sale-deed, the respondent - defendant no.1 is threatening the peaceful possession of the appellant - plaintiff over the suit property and is interfering with his peaceful possession. The original suit was filed by the appellant - plaintiff for permanent injunction as well as for declaring the registered sale-deed dated 18.12.2018 as null and void.

5. After summons have been served upon the respondents - defendants, they chose to remain absent from the proceedings, and, consequently, the original suit was proceeded ex-parte against them vide order dated 25.02.2019.

6. The learned trial Judge dismissed the suit of the appellant - plaintiff, vide judgment and decree dated 16.03.2019, on the premise that his claim was based on a document, which was unregistered, while the sale-deed dated 18.12.2018 was a registered one, on the basis of which, respondent - defendant no.1 claimed her title.

7. Feeling aggrieved, the matter was taken to the First Appellate Court by the appellant - plaintiff before the learned Fourth Additional Sessions Judge, Haridwar by filing a Civil Appeal No. 22 of 2019, Vikas Giri Vs. Smt. Chitra Chauhan & Another. During pendency of the Appeal before the First Appellate Court, an application dated 26.11.2022 under Order 41 Rule 27 CPC was moved by the appellant - plaintiff to take certain documents on record in evidence, on the ground that these documents were not in the knowledge of the appellant/plaintiff, the same could not be filed while the suit was pending before the trial court and these documents are very necessary in just and proper adjudication of the lis between the parties. The documents, which were proposed to be submitted in evidence by the appellant - plaintiff comprised:-

(i) The certified copy of the order dated 24.10.2019, passed by the learned Additional Collector, Finance and Revenue, Haridwar;

(ii) The forwarding letter dated 24.06.2019, by which the photocopy of the inquiry report dated 31.05.2019 was given to the appellant - plaintiff.

(iii) The report dated 31.05.2019 submitted by the Deputy Registrar, Haridwar;

(iv) The application of appellant - plaintiff Vikas Giri dated 07.05.2019;

(v) The unregistered deed dated 28.11.2005;

(vi) The report of Police Station Bahadrabad dated 09.05.2019 and;

(vii) The certified copy of the khatoni.

8. By means of these documents, the contention of the appellant - plaintiff was that the unregistered deed dated 28.11.2005 was impounded and sent to the learned Additional Collector, Finance and Revenue, Haridwar and the said Authority vide its order dated 24.10.2019 imposed the penalty upon the appellant - plaintiff for not registering the said documents and a deficit stamp duty of ` 23,150/- was also directed to be recovered from the appellant - plaintiff along with simple interest on the deficit stamp duty @ 1.5% per month from the date of execution till 31.10.2019 amounting to ` 58,000/- plus penalty ` 5000/- totalling to ` 86,150/-.

9. It is contended by the appellant that the said amount of ` 86,150/- has been deposited pursuant to the order dated 24.10.2019, passed by learned Additional Collector, Finance and Revenue, Haridwar. By virtue of this deposit made by the appellant - plaintiff, the document dated 28.11.2005 would stand stamped as per law.

10. The application under Order 41 Rule 27 CPC stand allowed by the order dated 17.02.2023, passed by the First Appellate Court. That after the order dated 17.02.2023, the Appeal was heard ex-parte, and the same was dismissed by the learned First Appellate Court by reason of his judgment and decree dated 10.05.2023. Hence, this second appeal.

11. It is also contended on behalf of the appellant - plaintiff that from the entire judgment, it is nowhere indicated as to whether the documents submitted by the appellant - plaintiff were considered by the First Appellate Court and effect of the deposit of the registration amount by the appellant/plaintiff has also not been gone into by the First Appellate Court.

12. I have gone through the judgment and order passed by the First Appellate Court with the help of learned counsel for the appellant to find that there is no mention about consideration of the document, which has been filed and accepted by the Court vide order dated 17.02.2023. It is trite of law that once the documents has been taken on record by the learned First Appellate Court, the same should have been considered and its effect on the case of the appellant - plaintiff should be assessed by the learned First Appellate Court. By doing so, the First Appellate Court has failed in discharging his duty as per law. After the additional evidence is allowed to be produced, the same should be dealt with as per Order 41 Rules 28 and 29 of the Code of Civil Procedure, 1908.

13. Order 41 Rules 28 and 29 are quoted as hereunder:-

"Order 41 - Appeals from Original Decrees

1.......................................

28. Mode of taking additional evidence.- Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.

29. Points to be defined and recorded.- Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified.

................................................................"

14. From perusal of the judgment and decree dated 10.05.2023, there is no manner of doubt in the mind of this Court that the learned First Appellate Court failed to discharge its duty as per the law and in a very cursory manner dismissed the First Appeal even without adverting to the documents allowed to be produced and its effect upon the case of the appellant - plaintiff. The substantial question of law nos. 1 and 2 framed are answered accordingly in favour of the appellant - plaintiff.

15. In such view of the matter, I am of considered view that the matter deserves to be remanded back to the First Appellate Court to consider the documents submitted by the appellant - plaintiff and its effect on merits of this case. The judgment and order dated passed by the First Appellate Court dated 10.05.2023 is hereby set aside.

16. The matter is remanded to the court of learned Fourth Additional Sessions Judge, Haridwar, who is directed to decide the appeal filed by the appellant - plaintiff, on the basis of the observation made in this judgment as per law. No order as to costs.

(Pankaj Purohit, J.) 12.06.2023 Shubham