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2011 Supreme(P&H) 1501
2011 (4) PLR 757
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
MEHINDER SINGH SULLAR, J.
Gauri Shanker - Appellant
Versus
Surjit Kumar and another - Respondents
R.S.A. No.5238 of 2003
Decided on: 10.08.2011
R.S.A. No.5240 of 2003
Gauri Shanker - Appellant
Versus
Surinder Singh - Respondent
Mr. H.K. Sharma, Advocate, for the appellant.
Mr. B.D. Sharma, Advocate, for the respondent(s).
The court emphasized the statutory right of parties to lead additional evidence and the power of the first Appellate Court to allow such evidence, as contemplated under Order 41 Rule 27 CPC.
Headnote:
Additional Evidence - Property Dispute - Order 41 Rule 27 CPC - [Order 41 Rule 27 CPC] - The court allowed the appeal and set aside the judgment and decree of the first Appellate Court, remitting the matter back to the first Appellate Court to decide the application for additional evidence and then to decide the main appeals on merits, in accordance with law.
Fact of the Case:
The plaintiff filed civil suits for mandatory injunction against the defendants, claiming ownership of the suit property. The trial Court dismissed the suit, and the first Appellate Court also dismissed the appeals. The plaintiff appealed to the present court, arguing that the first Appellate Court illegally decided/dismissed the appeals on merits without deciding the application for additional evidence.
Finding of the Court:
The court found that the first Appellate Court's decision to dismiss the appeals without deciding the application for additional evidence rendered the judgment and decree illegal. The matter was remitted back to the first Appellate Court to decide the application for additional evidence and then to decide the main appeals on merits, in accordance with law.
Issues: The main issue was the first Appellate Court's dismissal of the appeals without deciding the application for additional evidence.
Ratio Decidendi: The first Appellate Court's failure to decide the application for additional evidence rendered its judgment and decree illegal.
Final Decision: The appeals were accepted, and the judgment and decree of the first Appellate Court were set aside. The matter was remitted back to the first Appellate Court to decide the application for additional evidence and then to decide the main appeals on merits, in accordance with law.
MEHINDER SINGH SULLAR, J. (oral) - As identical questions of law and facts are involved, therefore, I propose to dispose of both the above indicated appeals, vide this common order, in order to avoid the repetition of facts in this context.
2. The epitome of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant appeals and emanating from the record, is that Mahant Gauri Shanker son of Mahant Harnam Dass-appellant-plaintiff (hereinafter to be referred as “the plaintiff”), claiming himself to be the owner of the property in dispute, filed the civil suit bearing No.9 of 1997, for a decree of mandatory injunction, directing Surjit Kumar son of Madan Gopal and Paramjit Singh son of Jawahar Singh-respondent-defendants(for brevity “the defendants”) to hand over the vacant possession of the suit property situated in the abadi of village Apra, Tehsil Philaur, District Jalandhar.
3. Sequelly, the plaintiff has also filed similar second civil suit bearing No.10 of 1997, for mandatory injunction against Surinder Singh son of Gurdial Singh.
4. The plaintiff claimed that he is owner of the suit property and the defendants are his licensees. In order to substantiate his stand, the plaintiff has, inter alia, produced on record copies of site plans (Exs.P1 and P2) and the rent receipts (Exs.P3 to P10) besides oral evidence.
5. The defendant contested the suit and filed the written statement, inter alia, denying the ownership of the plaintiff. According to the defendants, Kaushalya Devi is the owner and they (defendants) are in possession of the suit property as her tenants. Having completed all the codal formalities, the trial Court dismissed the suit of the plaintiff, by means of impugned judgment and decree dated 07.01.2003.
6. Aggrieved by the impugned decision of the trial Court, the plaintiff filed the appeals, which were dismissed as well by the first Appellate Court, by virtue of impugned judgment and decree dated 06.06.2003.
7. The appellant-plaintiff still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeals. That is how, I am seized of the matter.
8. At the very outset, learned counsel has contended with some amount of vehemence that although the appellant-plaintiff filed an application for additional evidence, for production of original 'Bahi' but the first Appellate Court, without deciding the same, has illegally decided/dismissed the appeals on merits, by way of impugned judgment and decree dated 06.06.2003. The argument is that, in this manner, the case of the plaintiff has been greatly prejudiced in this relevant behalf.
9. Faced with the situation, learned counsel for the respondent-defendants has fairly acknowledged that the appeals were decided on merits, without deciding the application for additional evidence, filed by the plaintiff.
10. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration of the entire matter, to my mind, as the impugned judgment and decree of the first Appellate Court, cannot legally be maintained, therefore, the present appeals deserve to be partly accepted in this respect.
11. As is evident from the record that the plaintiff filed the suits for mandatory injunction against the defendants, claiming himself to be the owner of the suit property. In order to substantiate his claim, he has produced on record site plans (Exs.P1 and P2) and copies of rent receipts (Exs.P3 to P10), which are entered into original 'Bahi'. The Courts below negatived the claim of the plaintiff, inter alia, mainly, on the ground that since, the plaintiff did not produce the original 'Bahi' entries, so, the photo-copies of the rent receipts (Exs.P3 to P10) are not legally proved. In that view of the matter, during the course of pendency of the appeals, the plaintiff moved an application for addi
