Gajpati Tiwari Alias Gajju Lal Vs Smt. Deepti Pandey

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NAFR

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Digitally signed by ALOK ALOK SHARMA SHARMA Date:2025.12.19 17:18:33 +0530

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 360 of 2016

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1 - Gajpati Tiwari Alias Gajju Lal S/o Late Radhika Prasad Tiwari, Aged About 63 Years R/o Village Khilora, Post Chhachhaanpairi, Tahsil Abhanpur, District Raipur, Chhattisgarh, Civil And Revenue District Raipur..........Plaintiff , Chhattisgarh

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... Appellant(s)

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versus

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1 - Smt. Deepti Pandey W/o Shri Nand Kumar Pandey, Aged About 43 Years R/o Village And Post Chiklaaksa, Tahsil Balod District Durg, Chhattisgarh, Chhattisgarh

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2 - State Of Chhattisgarh Through The Collector, Raipur, Chhattisgarh.......Defendants , District : Raipur, Chhattisgarh

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... Respondent(s)

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For Appellant(s)	: Mr. Karunendra Narayan Singh, Advocate.
For Respondent No. 1	: Mr. Prasoon Agrawal, Advocate.
For Respondent No.2/State	: Mr. Aman Tamboli, Panel Lawyer.

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Hon’ble Shri Justice Ravindra Kumar Agrawal, J.

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Judgment on Board

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14/11//2025

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The instant appeal under Section 100 of the Code of Civil Procedure, 1908 has been filed by the plaintiff/appellant against the impugned judgment and decree dated 13.04.2016 passed by learned District Judge, Raipur in Civil Appeal No. 26-A/2011, whereby the appeal filed by the appellant has been dismissed and the judgment and decree dated 20.09.2011 passed by learned 4^th Civil Judge Class-II, Raipur in Civil Suit 40-A/2010 has been affirmed.

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For the sake of convenience the status of the parties has shown in the Civil Suit are being taken as status of the parties in the present appeal.

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The present second appeal has been admitted on 02.12.2022 on the following substantial question of law:

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“A. Whether the judgment and decree of the First Appellate Court is liable to be set-aside merely on the ground that application filed under Order 41 Rule 27 of the C.P.C. has been decided separately.”

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The plaintiff filed a suit for declaration of title, permanent injunction and the sale deeds dated 22.11.2007 and 29.01.2008 be declared as null and void and in alternative claimed for vacant possession of the suit property. The claim of the plaintiff is that the plaintiff and his brother Sanad Kumar Tiwari were having ancestral property at village Khilaura. In the family partition between two brothers, his elder brother Sanad Kumar Tiwari was given excess land under the local family settlement as ”Jethasi”. After death of Sanad Kumar Tiwari, the lands was inherited by his wife Kanta Bai Tiwari. Since Sanad Kumar Tiwari and Kanta Bai Tiwari were issue less, they were taken care by the present plaintiff and she surrendered the entire land to the plaintiff in presence of the witnesses. The defendant No.1 is the daughter of sister of Kanta Bai who occasionally came to her house. The defendant No. 1 has got mutated her name in the revenue records after death of Kanta Bai through the forged documents, therefore, he filed the civil suit for declaration of the title, permanent injunction and declaring the sale deeds 22.02.2007 and 29.01.2008 as null and void and also for possession.

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The defendant No. 1 contested the suit and filed her written statement and pleaded that the suit property was owned by Sanad Kumar Tiwari alone and after his death, it was inherited by his wife Kanta Bai Tiwari. The plaintiff has never taken care of either Sanad Kumar Tiwari or Kanta Bai. Sanand Kumar

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Tiwari has died in the year 1963-64 and at that time, the plaintiff was aged about 14-15 years. The nurture of the plaintiff was taken care by the Kanta Bai Tiwari. By the lapse of time his behavior became deteriorating with Kanta Bai and ultimately partition took place between the plaintiff and Kanta Bai and suit properties comes into the share of Kanta Bai Tiwari. He executed a sale deed on 23.11.2007 and 29.01.2008 in favour of the defendant No. 1, sufficient consideration was paid to her and after its purchase the name of defendant No. 1 was mutated in the revenue records and she is in possession. The suit property was never hold by the plaintiff and he has no right over the same and the suit is liable to the dismissed.

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After considering the evidence led by the parties, the learned trial Court dismissed the suit holding that the plaintiff has failed to prove that he is the title and possession holder of the suit properties and he is not entitled for relief of declaration of title and permanent injunction and also not entitled to declare the sale deeds as null and void.

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The judgment and decree passed by learned trial Court was challenged by the plaintiff before the learned District Judge, Raipur in Civil Appeal No. 26A/2011. In the first appeal, the plaintiff had filed an application under Order 41 Rule 27 of CPC on 14.08.2012 (wrongly mentioned in the order-sheet dated 13.08.2015 of the first appellate Court as 04.08.2012) along with documents to be taken as an additional evidence.

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The another application under Order 41 Rule 27 of the CPC was filed by the plaintiff on 28.03.2014 along with the documents which the plaintiff sought to be taken as an additional evidence and prayed that the documents are very relevant for just decision of the case and it may be taken as an additional evidence in the case. Though the order-sheet of the learned first appellate Court does not show the filing of the application, but the application dated 28.03.2014 is available in the record and the first appellate Court has decided the same. These two applications under Order 41 Rule 27 of CPC

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was heard on 13.08.2015 and both these applications were allowed by the first appellate Court and, thereafter, the case was fixed for final hearing on 08.10.2015. The case was adjourned from time to time and ultimately the appeal was heard on 28.03.2016 and the parties have exchanged their written submissions on 11.04.2016 and 13.04.2016 and thereafter, the learned first appellate Court has passed its judgment and decree on 13.04.2016 itself, which is under challenge in the present appeal. While deciding the first appeal, the learned first appellate Court though have allowed two applications filed under Order 41 Rule 27 of the CPC vide order dated 13.08.2015, has held in its judgment dated 13.04.2016 that the documents filed by the plaintiff as an additional evidence along with application are not relevant with the facts of the case for its consideration and has declined for its consideration.

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In the present appeal the substantial question of law has been framed by this Court which has been set out in the earlier part of this judgment.

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Learned counsel appearing for the appellant would submit that the first appellate Court was absolutely unjustified in not considering the additional evidence submitted by the plaintiff at the time of deciding the appeal. He would further submits that the consideration of the application under Order 41 Rule 27 CPC, before hearing the appeal itself is erroneous as the same has to be considered at the time of final hearing of the appeal, and when the application was allowed, the appellant should have been provided the opportunity to prove the document and to rebut the same to the opposite party as provided under Order 41 Rule 27 of CPC. Since the application itself was allowed before considering the case on merits and subsequently not considering the documents, the learned first appellate Court has committed grave legal error in not considering the application and not considering the documents and deciding the application before final hearing of the appeal

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and as such the impugned judgment and decree passed by learned first appellate Court deserves to be set aside on this ground alone.

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On the other hand, learned counsel for the Respondent No. 1 would supported the impugned judgment and decree and submits that vide order dated 13.08.2015, the applications was allowed and only the documents were taken on record, however, its relevancy has been considered by the learned trial Court at the time of adjudication of the appeal which does not suffers from any perversity or illegality. Earlier, when the application was allowed, the learned first appellate Court has not considered the merits of the documents, however, the merits of the document/additional evidence has been considered at the time of final hearing. Therefore, the present appeal does not have any merits and and the substantial questions of law is required to be answered in favour of the Respondent No. 1.

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I have heard learned counsel for the parties and perused the record of the trial Court as well as first appellate Court.

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With respect to the substantial question of law framed by this Court, it would be necessary to notice the provisions of under Order 41 Rule 27 of CPC, which reads as under:

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"Order 41, Rule 27. Production of additional evidence in Appellate Court.---- (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) [***]

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[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

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(b) [***]

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the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

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(2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission."

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A careful reading of sub-rule (aa) of the aforesaid under Order 41 Rule 27 of CPC, would show that the object of the rule is to provide an opportunity to the party concerned who was not able to produce the evidence during the trial and to provide an opportunity to produce the same in the appellate Court, in order to produce the documents the conditions mentioned in subrule (aa) of Order 41 of 27 of the CPC must be satisfied to exist.

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In the matter of State of Rajasthan v. T.N. Sahani and others , Their Lordships of the Supreme Court have held that the Order 41 Rule 27 of the CPC has to be considered at the time of hearing of the appeal on merits and as such the application should be decided along with appeal and held as

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under:-

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“This is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into to the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41 Rule 27 (b) CPC can be invoked. So the application under Order 41 Rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner, it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view, would be appropriate. Further, the reason given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly, set aside. The application is restored to its file. The High Court will now consider the appeal and the application and decide the matter afresh, in accordance with law."

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Similarly in the matter of Eastern Equipment & Sales Limited v. ING. Yash

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Kumar Khanna , Their Lordships of held that the the Supreme Court clearly application filed under Order 41 Rule 27 of the CPC has to be decided along with the appeal.

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In the matter of Union of India v. Ibrahim Uddin and another ', Their Lordships of the Supreme Court have considered the stage, in which the application filed under Order 41 Rule 27 of CPC has to be considered

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An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merit so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved.

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The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage, or not, but it depends upon whether or not the Court appellate sought to be adduced to enable it requires the evidence pronounce judgment or to for any other substantial Cause. The true test, to materials before it without taking into consideration the additional sought to be adduced. Such occasion would arise only if pronounce judgment on the inherent lacuna or defect become apparent to the court.

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Thus, from the above, it is crystal evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence taken on record in order to pronounce the to be judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record, judgment or to required not, pronounce the remains inconsequential/inexecutable and is liable to be ignored."

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As per the principles laid down in aforesaid cases, the application filed under Order 41 Rule 27 of Court the CPC should be decided at the time of final CPC hearing. The reason is that if the Appellate Court comes to the conclusion that it should exercise its power under Order 41 Rule 27 of the CPC, then it is incumbent upon the Appellate Court to stay the delivery of judgment and record the reasons for admitting the application under Order 41 Rule 27 of the CPC and after admitting the additional evidence, the question of deciding the case on merit shall arise.

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Thus, on the basis of aforesaid analysis, it is held the application under Order 41 Rule 27 of CPC, filed by the plaintiff during the pendency of the first appeal should not be decided before hearing of the appeal on merits. The appeal must be heard on merits and then only the application under Order 41 Rule 27 CPC, has to be considered as to whether the application for production of additional evidence should be allowed or not, if the application is allowed then appeal has to be heard again on merits after reception of additional evidence in order to decide appeal finally.

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Applying the aforesaid principles of law laid down by Hon’ble Supreme Court in the aforesaid judgments, on examination of the facts of the present case, it

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is quite vivid that after applying its mind and after having gone through the record, the learned first appellate Court has allowed the two applications filed by the plaintiff under Order 41 Rule 27 of the CPC, and thereafter fixed the case for final hearing. The proceeding of the appeal was adjourned from time to time and ultimately it was heard on 28.03.2016 and the judgment was passed on 13.04.2016, whereby the merits of the documents has been considered by the first appellate Court and declined to extend benefit of the same stating that the appellant could not be benefited by the said document to prove his case on merits.

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Further when the applications under Order 41 Rule 27 of CPC was allowed on 13.08.2015, the first appellate Court should have followed the provisions of Order 41 Rule 28 of CPC as has been held by the Hon’ble Supreme Court in the matter of 2018 (17) SCC 740 Alamelu Ammal and Another vs. S. Rani and Others.

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Thus, in light of the aforesaid discussions, this Court is of the considered opinion that the order passed by the first appellate Court on 13.08.2015 allowing the applications filed by the plaintiff under Order 41 Rule 27 of the CPC before hearing of the appeal on merits is unsustainable and also the impugned judgment and decree passed by learned first appellate Court is unsustainable and contrary to the law and consequently the order dated 13.08.2015 as well as impugned judgment and decree dated 13.04.2016 passed by learned first appellate Court are hereby set aside and the substantial question of law is answered accordingly.

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The second appeal is allowed in part . The order dated 13.08.2015 and the impugned judgment and decree dated 13.04.2016 are hereby set-aside . The first appeal as well as the application under Order 41 Rule 27 of CPC dated 14.08.2012 and 28.03.2014 are restored to its original number in the said Court for hearing and disposal in accordance with law. The matter is remitted back to the learned first appellate Court to decide the appeal as well as the

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application in accordance with law after providing opportunity of hearing to the parties concerned.

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Since the civil suit is of the year 2010, and the first appeal is of the year 2011, the learned trial Court is directed to decide the appeal as early as possible preferably within the period of 06 months.

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The parties are directed to appear before the first appellate Court on 06.01.2026.

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Records of the Courts below be sent back forthwith.

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No order as to costs.

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Sd/-

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(Ravindra Kumar Agrawal) Judge

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Alok

Gajpati Tiwari Alias Gajju Lal v. Smt. Deepti Pandey

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Gajpati Tiwari Alias Gajju Lal v. Smt. Deepti Pandey

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