Procedural fairness mandates that parties must be afforded an opportunity to present rebuttal evidence, especially when additional documents are admitted at the appellate stage.

JUDGMENT :

SASHIKANTA MISHRA, J.

The present appeal is directed against the reversing judgment passed by the learned District Judge, Cuttack in Title Appeal No. 58 of 2001 passed on 30th September, 2014 followed by decree. As per the said judgment, the ex-parte judgment passed by learned Civil Judge (Junior Division), 2^nd Court, Cuttack on 31.03.2001 followed by decree in T.S. No. 78 of 1994 in dismissing the suit ex-parte was set aside and the appeal was allowed.

2. The present appeal has been filed by the defendants-respondents.

3. For convenience, the parties are referred to as per their respective status in the Court below.

4. The following substantial question of law has been framed by this Court while admitting the present appeal.

“(i) Whether the lower appellate Court was right in allowing the petition under Order 41 rule 27 of CPC filed by the appellant before it ( who is respondent no.1 here and plaintiff in the trial Court) and by taking those documents into consideration in deciding the appeal without giving any opportunity to the appellants to rebut the same?

5. In view of the substantial question of law as framed it is not necessary to delve into the specific details of the case of the parties. It would suffice to indicate only the relevant facts.

6. The suit was filed by one Jatindra Nath Bhuyan as the plaintiff against Hemendranath Bisoi, Swarnalata Bisoi, Kusuma Kumari, Bhagabata Chatterjee, Nabina Sahoo, Narayan Patra and Damodar Ojha as defendant Nos. 1 to 7. The suit was filed for declaration of right, title, interest and confirmation of possession of the plaintiff over the suit land. Though notice of the suit was validly served on the defendants, they did not appear for which they were set ex-parte. The plaintiff examined himself as the sole witness from his side and proved two documents. The trial Court on consideration of the oral and documentary evidence found that the plaintiff had failed to prove his title and possession over the suit property by producing the relevant documents as also the fact that the sale deed vide Ext. 1 had been acted upon and therefore, held that the plaintiff is not entitled to any relief and accordingly dismissed the suit ex-parte.

7. The plaintiff carried the matter in appeal. The original parties having expired, the appeal was prosecuted by one Debes Chandra Nandi in place of original plaintiff being substituted as per the provisions under Order-1 Rule -10 of CPC as he was a lis pendens purchaser of the suit land vide RSD dated 25.02.2009 executed by the original plaintiff, Jatindra Nath Bhuyan. Similarly, the original defendant Nos. 1 to 3 having also died, were substituted by their LRs. The defendants-respondents (including the LRs of the deceased respondents) contested the appeal. In course of hearing of the appeal, as many as eight documents were produced by the plaintiff-appellant and admitted as additional evidence being Ext. 3 to 10. Considering the documentary evidence, the First Appellant Court found the plaintiff to have successfully established his claim over the suit property and thus, allowed the appeal by setting aside the ex-parte decree and by declaring the right, title, interest and possession of the plaintiff-appellant over the suit property.

8. Heard Mr. Kishore Kumar Jena, learned counsel for the defendant-appellants and Mr. N.P. Parija, learned counsel for the plaintiff-respondents.

9. Mr. Jena has forcefully argued that proper procedure was not followed by the First Appellate Court inasmuch as the valuable right of the defendants to adduce rebuttal evidence was not granted. It is contended