Allowed

Pudi Govinda Rao v. Pudi Simmanna

Andhra Pradesh HC1 Jan 2024SA/1453/2005

Case brief

AI extract

What is this about?

This Second Appeal challenges the reversal of a trial court suit by the First Appellate Court, which admitted additional documentary evidence without complying with Order XLI Rule 27 CPC. The High Court set aside the Judgment and remanded the case, holding that the admission of evidence was procedurally flawed and caused prejudice.

What did the court decide?

The impugned judgment of the First Appellate Court is set aside, and the appeal is remanded for a fresh hearing with a direction to admit evidence as per Order XLI Rule 27 CPC within six months.

Pudi Govinda Rao Vs Pudi Simmanna — Execution and Attachment | Andhra Pradesh HC (2024)

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THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

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SECOND APPEAL No.1453 of 2005

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JUDGMENT:

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This appeal under section 100 CPC from the defendants in the suit has arisen in the following circumstances:

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Out of a large extent of land in survey No.65 belonging to the Government, the lease pattas were granted to various individuals. For late Sri Ramanna there are three sons. One son by name Sri P. Simanna filed O.S.No.77 of 2000 as against his two brothers arraying as defendant Nos.1 and 2 and another individual as defendant No.3. The suit was filed for permanent injunction. The allegations are that the Government had granted lease patta in an extent of Ac.1.25 cents or Ac.1.20 cents in favour of the plaintiff in the year 1978 and since then the plaintiff has been in possession and enjoyment of it. However, as the defendants without any manner of right have been disturbing the possession, that necessitated him to sue them for perpetual injunction.

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Defendant No.2 filed a written statement and the remaining defendants filed a memo adopting it. Their pleaded case is that in the same survey number of Boddam Village in

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the same year, namely 1978, the defendant No.2 was given Ac.1.25 cents of land under a patta and the plaintiff is trying to dispossess them by this unlawful litigation. Learned Junior Civil Judge, Narasannapeta before whom the suit was filed settled the following issues for trial:

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Whether the plaintiff is entitled for the relief of permanent injunction?

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If so, what relief?

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Plaintiff testified as PW.1 and got examined another individual as PW.2. During his evidence, he produced Exs.A1 to A3. He failed to produce the patta that was allegedly given to him. On behalf of defendants, defendant No.2 testified as DW.1 and he got exhibited Exs.B1 and B2. Ex.B1 was a patta granted by the Government in his favour. After considering the oral and documentary evidence, the learned trial court found fault with the inaccurate oral evidence on part of both sides and it was recorded that PW.2 did not have any knowledge about the suit and its dispute. Since plaintiff failed to produce his patta and since it found certain discrepancies in Exs.A2, A3 – land revenue receipts, it refused to grant perpetual injunction in

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3 Dr. VRKS, J S.A.No.1453 of 2005

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favour of the plaintiff. It recorded a clear finding that the plaintiff filed to prove his possession over the plaint schedule property. While referring to Ex.B1 – patta produced by defendant No.2 as DW.1, it commented that the survey number mentioned therein is different from the survey number mentioned in the plaint schedule. It stated that both sides failed to examine any revenue authorities in proof of their respective cases concerning pattas. Finally, it dismissed the suit by a judgment dated 31.01.2003.

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Aggrieved by it, the sole plaintiff preferred A.S.No.23 of 2003. Learned II Additional District Judge, Srikakulam, heard the arguments of learned counsel on both sides and afresh considered the oral and documentary evidence. Certain aspects recorded by the learned II Additional District Judge at Page No.3 and 4 of its judgment have become the cause of concern in this appeal. Learned II Additional District Judge made the following observations and they are extracted here:

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“During the appeal appellant/ plaintiff got examined the revenue authorities to produce the original lease patta register and 10(1) adangals. The true copy extract of the lease patta register was marked as Ex.A4, certified copy of No.2 adangal

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extract was marked as Ex.A5 and No.(3) adangal pahani was marked as Ex.A6.”

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Then the learned first appellate court went on to consider Exs.A4, A5 and A6. Ex.A4 is the patta of the plaintiff. Exs.A5 and A6 are certified copies of Adangals in favour of the plaintiff showing his possession over the property. It extensively relied on Ex.A5 and A6 and considered the total extent of land and considered the possession thereby established on behalf of the plaintiff/ appellant. Thereafter, it considered the admissions made by DW.2 during his cross-examination and the oscillating stands taken by the defendants and commented that defendants were prone to cause harm to the plaintiff and they indulged in this litigation. It finally disagreed with the conclusions reached by the trial court. At page No.9 of its judgment, the learned Additional District Judge observed that even ignoring the new documents, in his opinion, the evidence on record established the case of the plaintiff overwhelmingly. Finally, it admitted the appeal and set aside the judgment of the trial court and granted perpetual injunction in favour of the plaintiff and against the defendants.

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Aggrieved by it, the three defendants are in appeal here.

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The principal argument on both sides turned on the procedure adopted by the learned first appellate court in receiving additional evidence. On 24.11.2005, a learned Judge of this court admitted the appeal on the following substantial questions of law:

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Whether in a suit for injunction, the plaintiff is not required to stand or fall on the strength of his own case instead of depending on the weaknesses of the defendants.

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Whether the court should not dismiss the suit where the plaintiff in a suit for injunction is not able to establish his case as pleaded in the plaint and evidence led by him.

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Whether the first appellate court could have admitted the documents by allowing the application for additional evidence contrary to the provisions for Order 41, Rule 27 CPC, more particularly when no grounds for invoking the said provision were made out.

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Appearing for the appellants, Sri J.Prabhakar, the learned

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counsel argued that the learned Additional District Judge while hearing the first appeal failed to follow the mandatory principles contained in Order XLI Rule 27 CPC and failed to grant

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opportunity to the defendants in the suit who are appellants here to contest the truth or otherwise of Exs.A4, A5 and A6 and thereby deprived them to contest on the fundamental point as to who holds patta and who is in possession based on that patta. Serious prejudice was caused to these appellants and the principle of affording reasons to allow the application for additional evidence are totally missing in the judgment and learned counsel therefore prays the court to set aside the impugned judgment and remand the appeal to the first appellate court.

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As against this, the learned counsel for respondent Sri A. Ravi Sankhar earnestly argued that before the first appellate court, plaintiff filed I.A.No.30 of 2005 under Order XVI Rule 7 read with Order XIII Rule 5(3) CPC and the learned first appellate court properly received the documents and properly took them for consideration as evidence and these appellants never raised any objections in that regard and therefore they cannot be permitted to raise objections during the course of hearing of this second appeal. In this regard, learned counsel

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cited Lachhmi Narain Singh V. Sarjug Singh¹ . Learned

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counsel submits that this court needs to see that in the last parts of the judgment, the learned first appellate court also recorded that irrespective of these documents taken as additional evidence, the evidence on record indicated to the mind of the first appellate court about possession of the plaintiff over the plaint schedule properties and therefore no prejudice could be said to have been caused to the appellants herein so as to remand this case.

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Having considered the submissions of learned counsel on both sides, the following aspects are to be stated:

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The above cited ruling in Lachmi Narain Singh is a case where certified copy of a disputed registered revocation deed of a will was filed before the trial court. Seeking its original, no objections were raised by the other side. For the first time, the objections were raised at the High court and Supreme Court. It was in these circumstances, their Lordships had to reiterate the law contained in para No.20 of R.V.E Venkatachala Gounder

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1 (2022) 13 SCC 746

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V. Arulmigu Visweswaraswami and V.P Temple² . Since the

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learned counsel for respondent heavily relied on the above paragraph no.20, the same is extracted for benefit.

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“In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby

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2 (2003) 8 SCC 752

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removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence……..(emphasis in original)”

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At once it is clear that the principle is that the court while receiving evidence must always keep in mind the rule of fair play for both parties. An objection that was not taken while a document was admitted during the course of trial before a trial court, as to the mode of proof, an argument questioning the correctness of it cannot be advanced at the appellate stage. Thus, the said principle has no resemblance to the facts available on record in this case. In the case at hand, Exs.A4, A5 and A6 on behalf of the plaintiffs were never produced at the trial and they were produced for the first time during the hearing of first appeal. One reason why the trial court dismissed the suit of the plaintiff. It is undisputed that looking at the nature of the pleadings and evidence on both sides, there has been a serious contest regarding the issuance of pattas by the Government. The entire judgment of the learned first appellate

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court turned on Exs.A4, A5 and A6. Whether the first appellate court misconducted itself resulting in grave injustice or not is the point that has fallen for consideration.

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Production of evidence at the trail is a matter of right for the parties. Production of evidence in the first appellate court or subsequent thereto is not a matter of right. This position is crystal clear in the opening parts of Order XLI Rule 27 CPC which is extracted here:

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Order XLI Rule 27 CPC: -

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Production of additional evidence in Appellate Court

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1.The parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary, in the Appellate Court. But if –

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a. the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

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aa. the party seeking to produce additional evidence, establishes that not-withstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced

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by him at the time when the decree appealed against was passed, or

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b. the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.”

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Two primary principles are to be noticed. There must be an application for production of additional evidence and due opportunity to raise a protest against it must be given to the opposite party. The impugned judgment does not indicate adherence to that principle. Order XLI rule 27(2) CPC itself prescribed that the court which entertains such an application shall record the reasons for allowing the application and receiving the additional evidence. The impugned judgment does not indicate the reasons which convinced the first appellate court’s judge to allow that application and receive additional evidence. The impugned judgment employed the words at page no.3 of its judgment that the plaintiff as appellant got examined the revenue authorities before the appellate court. However as admitted by both sides and as appendix of the evidence of the first appellate court indicate that no further oral evidence was adduced before the first appellate court. The appellate court after taking a decision to allow additional evidence on behalf of

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one of the parties, it has to follow what is mandated in Order XLI Rule 28 CPC about mode of taking additional evidence. The impugned judgment failed to follow that law. In the last parts of its judgment, the learned first appellate court recorded that even without taking into consideration the additional evidence in Ex.A4, A5 and A6, to its mind, the evidence overwhelmingly proved the case of the plaintiff. If that be its view, there was no need to take the additional evidence since the permission for additional evidence could be liberally exercised only when the first appellate court feels that to decide the dispute before it, it require such additional evidence. If the material available on record already furnished by parties is found to be sufficient that disentitles a first appellate court to take additional evidence. A Bench of the three Hon’ble Judge of the Hon’ble Supreme Court of India in Land Acquisition Officer, City Improvement Trust

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Board V. H.Narayanaiah³ laid down the law in this regard at para no.28 which is extracted here:

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“ The Karnataka High Court had, however, not complied with provisions of Order 41 Rule 27 of the CPC which require that

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3 (1976) 4 SCC 9

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an appellate court should be satisfied that the additional evidence is required to enable it either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27 Order 41 of the CPC. We are of opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence.”

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Consequently, their Lordships remanded the case for fresh hearing.

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In the light of what is stated above, the arguments of learned counsel for respondent about Order XVI Rule 7, Order XIII Rule 5(3) CPC have absolutely no relevance since they pertain to trial before the trial court and not about production of additional evidence in the first appellate court.

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One of the contentions of the appellants is that plaintiff has to stand or fall on the strength of his own case instead of depending on the weakness of the defendants. There is no

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quarrel on this principle. In fact, it is on that principle only both the courts below adjudicated the lis and recorded their respective findings. The courts below recorded the admissions made by DW.1 and on such appreciation, they concluded the disputed points. That does not amount to decreeing the suit based on the weaknesses of the opposite party. Therefore, the 1^st substantial question of law has no merit and is held against the appellants.

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2^nd substantial question of law pales into insignificance in view of what is already narrated in this judgment. Therefore, this point does not require any further consideration. 3^rd substantial question of law which is concerning failure of compliance of law contained in Order XLI Rule 27 CPC. This Court records that the learned first appellate court failed to comply with the law and that caused immense prejudice to the case set out by the parties and therefore the point is answered in favour of the appellants.

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In the result, this appeal is allowed. The impugned judgment dated 21.10.2005 of learned II Additional District Judge, Fast Track Court, Srikakulam in A.S.No.23 of 2003 (by

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which O.S.No.77 of 2000 of learned Junior Civil Judge, Narasannapeta was reversed) is set aside. Consequently, while disposing of this second appeal, the said A.S.No.23 of 2003 is remanded to learned II Additional District Judge, Fast Track Court, Srikakulam and if that court is not available, the court having jurisdiction over the matters of that court. Learned Additional District Judge shall grant due opportunity to parties on both sides and record oral and documentary evidence as the parties choose with reference to three documents (described as Exs.A4, A5 and A6) by duly complying with Order XLI Rule 27 CPC and other related provisions of CPC and shall re-hear the appeal and dispose of it in accordance with law preferably within in a period of six months. In terms of Order XLI Rule 26A of Code of Civil Procedure both parties are directed to appear before the first appellate court on 06.02.2024.

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As a sequel, miscellaneous applications pending, if any, shall stand closed.

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Dr. V.R.K.KRUPA SAGAR, J

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Date: 02.01.2024 Dvs

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THE HON’BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

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SECOND APPEAL No.1453 of 2005