Allowed

Lal Singh v. Magan Singh

Rajasthan HC15 Feb 2013CMA/532/2009

Case brief

AI extract

What is this about?

The High Court of Rajasthan allowed an appeal against an order that set aside a trial court decree and remanded a suit for fresh evidence. Holding that allowing additional evidence under Order XLI Rule 27 CPC does not automatically justify setting aside a decree, the Court allowed the appeal, set aside the remand, and restored the matter to the first appellate court.

What did the court decide?

The appeal was allowed, the impugned order of remand was set aside, Appeal No.29/2006 was restored to the first appellate court, and parties were directed to appear for a fresh hearing.

Lal Singh Vs Magan Singh — Property and Title | Rajasthan HC (2013)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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: J U D G M E N T :

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S.B. CIVIL MISC. APPEAL NO.532/2009

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Lal Singh Vs.

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Magan Singh

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Date of Judgment 15^th February, 2013

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PRESENT

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HON'BLE MR. JUSTICE ARUN BHANSALI

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Mr. Javan Singh Rao, for the appellant. Mr. Shambhoo Singh, for the respondents.

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BY THE COURT:

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Heard learned counsel for the parties.

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This appeal under Order XLIII, Rule 1(u) CPC has been filed aggrieved by the order dated 31.03.2009 passed by the Additional District Judge, Abu Road, whereby, the first appellate court has while allowing the application under Order XLI, Rule 27 CPC filed by both the parties, set aside the decree passed by the trial court and the matter has been remanded back to the trial court with a direction to take evidence and decide the matter afresh.

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The brief facts of the case are that the appellant filed a suit for declaration and permanent injunction against the respondent regarding suit land situated at village Goliya, Tehsil Abu Road. The suit was resisted by the respondent and a counter claim seeking declaration and permanent injunction was filed. The trial

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court framed as many as six issues and, after parties led their oral as well as documentary evidence, decided the suit and passed the decree in favour of the appellant-plaintiff inter alia giving declaration regarding suit property being that of the ownership and possession of the appellant and the respondent was restrained from trespassing or interfering with the construction on the suit land and the counter claim filed by the respondent was rejected.

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Feeling aggrieved by the judgment and decree dated 09.10.2006 passed by the trial court, the respondent filed an appeal before the first appellate court. During pendency of the said appeal, two applications came to be filed, one by appellant and another by respondent under Order XLI, Rule 27 CPC seeking to produce additional documentary evidence.

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The first appellate court by the impugned order dated 31.03.2009 allowed the application under Order XLI, Rule 27 CPC and thereafter went on to observe and decide the appeal as under:-

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“अत: अप�ल�ण� एव� र�सप�ड�ण� द�र� पसत�त आद�श 41 न�यम 27 सपठ�त ध�र� 151 स�.प�.स�. क� प�र"�� पत सव�क�र ककय� ज�कर पसत�त दसत�व�ज�त र�कड" पर ललए ज�त� ह( एव� अध��सर नय�य�लय द�र� ठद��क 9.10.2006 क� प�ररत न�र"य व डडक. अप�सत क. ज�कर इ� दसत�व�ज0 क� समबनध म2 स�कय ल4 ज�कर प � : न�र"य प�ररत कर�� क� आद�श ठदए ज�त� ह(। पकरर प�र�� ह(, इसललए अध��सर नय�य�लय क� न�द6श ठदए ज�त� ह( कक यर�स�भव छ: म�ह म2 पकरर क� न�सत�ररत कर�� क� पय�स कर2। अप�ल�ण� व र�सप�ड�ण� ठद��क 2.4.2009 क� अध��सर नय�य�लय म2 उपससरत रह�।"

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It was contended by learned counsel for the appellant that the procedure adopted by the first appellate court is ex facie against the settled position of law. Merely because applications

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under Order XLI, Rule 27 CPC were allowed, the same ipso facto cannot lead to setting aside of a decree passed by the trial court and remand of the matter to the said Court.

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Reliance was placed on a judgment of this Court in the case of Kiran Kumari (Mrs.) & Ors. Vs. Hanumant Singh & Ors. reported at 2011 (2) DNJ (Raj.) 539, wherein, this Court has held as under:-

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“Thus, it is candidly clear that the learned appellate Court is not empowered to set-aside the judgment and decree of the lower Court while passing an order under the express provisions of Order XLI Rule 27 C.P.C. Unequivocally and undeniably, the impugned order is found to be contrary to law in the light of the judgment of Amar Chand Vs. Bhanwar Lal (supra), which deserves to be set-aside.”

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On the other hand, learned counsel for the respondent supported the order impugned. It was submitted that once applications filed by both the parties under Order XLI, Rule 27 CPC has been allowed by the first appellate court, it was well within its discretion either itself take the said documents into consideration and/or remand the matter to the trial court for taking further evidence based on the said documents and thereafter decide the suit afresh. It was further submitted that the documents which were permitted to be taken on record while allowing application under Order XLI, Rule 27 CPC go to the root of the matter and, therefore, the order for remand was rightly passed.

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I have considered the rival submissions made at the Bar.

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A bear reading of operative portion of the order passed by the first appellate court quoted hereinbefore would reveal that the first appellate court without recording any finding as to the

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requirement of further evidence and/or proof of the documents produced by the parties under Order XLI, Rule 27 CPC has jumped to a conclusion that the decree passed by the trial court deserves to be set aside and the matter is required to be remanded back.

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Order XLI, Rule 28 CPC provides that where an additional evidence is permitted by the first appellate court, then the Court may either take such evidence or direct the Court from whose decree the appeal is preferred to take such evidence and to send it when taken to the appellate court.

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It is only in a small number of cases where the Court is more than satisfied that the party was validly and genuinely precluded from producing evidence before the forum in the first instance that a remand for this purpose may be justified.

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Considering the provision of Order XLI, Rule 28 CPC, Hon'ble Supreme Court in the case of H.V. Vedavyasachar Vs. Shivashankara & Anr. reported at (2009) 8 SCC 231 has held as under:-

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“ 7. However, so far as the second contention raised by the learned counsel for the appellant is concerned, in our opinion, the same has substance. When an application for adducing additional evidence is allowed the appellate court has two options open to it. It may record the evidence itself or it may direct the trial court to do so.

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8. Order 41 Rule 28 CPC reads as under:-

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“28. Mode of taking additional evidence. -

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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.”

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For the aforementioned purpose, in our considered opinion, the High Court could not have directed the trial court to dispose of the suit after taking evidence. Such an order of remand could be only in terms of Order 41 Rule 28, Order

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41 Rule 23-A or Order 41 Rule 25 of the Code. None of the said provisions have any application in the instant case.”

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Applying the ratio of law laid down by Hon'ble Supreme Court, it is clear that the Court below has legally erred in directing the trial court to decide the suit afresh after taking additional evidence and the same is not sustainable in law.

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Consequently, the order impugned passed by the first appellate court is set aside to the extent of setting aside of decree and remanding the case back to the trial court. The Appeal No.29/2006 is restored back to the file of the first appellate court and court is directed to pass a fresh order after affording an opportunity of hearing to both the parties either allowing the parties to adduce evidence before it or to prove the documents permitted to be taken on record under Order XLI, Rule 27 CPC by the trial court in terms of Order XLI, Rule 28 CPC in the light of the discussion hereinabove. The parties may appear before the first appellate court either personally or through counsel on 05.03.2013.

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The appeal is allowed accordingly. No costs.

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(ARUN BHANSALI), J.

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A.K.Chouhan/- 77

Lal Singh v. Magan Singh

Case brief

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Lal Singh v. Magan Singh

Case brief

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