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2017 Supreme(MP) 370
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BENCH
SUJOY PAUL, J.
Sunil Parashar - Petitioner
Versus
Kapil Khanna and others - Respondents
M.A. No. 1143 of 2005
Decided On : 21-02-2017
For the Appellant : Shri Ahilesh Jain, Learned Counsel.
For the Respondent: Shri Ashok Tiwari, Learned Counsel.
The main legal point established in the judgment is the requirement for the court to pronounce judgment and the limited power of remand under Rule 23 or 23-A of Order 41 CPC.
Headnote:
Order 43, Rule 1 (u) of CPC - Civil Appeal - 41 Rule 23A of CPC - The court discussed the legal provisions of Order 41, Rule 27 CPC and the conditions for allowing additional evidence. The court emphasized the requirement of the court to pronounce judgment and the limited power of remand under Rule 23 or 23-A of Order 41 CPC. The judgment referenced key legal principles from various cases to support its decision.
Fact of the Case:
The plaintiff filed a Civil Suit, which was dismissed by the trial court. The appellate court remanded the matter to the trial court to allow additional evidence, which was challenged in the present appeal.
Finding of the Court:
The court found that the conditions for allowing additional evidence under Rule 27(1)(b) of Order 43 CPC were not satisfied, and the court below had mechanically remanded the matter. The impugned order was set aside, and the lower appellate court was directed to decide the appeal on merits.
Issues: The pivotal issue was whether the court below was justified in allowing the application for additional evidence under Rule 27(1)(b) of Order 43 CPC.
Ratio Decidendi: The court emphasized the requirement of the court to pronounce judgment and the limited power of remand under Rule 23 or 23-A of Order 41 CPC. It referenced key legal principles from various cases to support its decision.
Final Decision: The appeal was allowed, and the impugned order was set aside. The lower appellate court was directed to decide the appeal on merits.
SUJOY PAUL, J.
1. This appeal filed under Order 43, Rule 1 (u) of CPC is directed against the judgment dated 18.3.2005 passed in Civil Appeal No.24-A/03 whereby the court below has remanded the matter to the trial court by exercising powers under Order 41, Rule 23A of CPC.
2. Briefly stated, the facts are that the plaintiff/ respondent filed a Civil Suit No.249-A/02 before the trial court. After completion of pleadings, issues were framed and evidence was recorded. The trial court by judgment dated 30.6.2003, dismissed the said civil suit. The said judgment was called in question by filing Civil Appeal No.24-A/03. The said appeal was finally heard by the appellate court and the matter was posted for delivery of judgment. At this stage, on 16.03.2005, the appellant/ plaintiff filed an application before the court below under section 41 Rule 27 CPC. The said application was vehemently opposed by the present appellant/ defendant. The court below by impugned judgment dated 18.03.2005, set aside the judgment and decree dated 30.6.2003 and invoked the powers under Order 41, Rule 23A of CPC and remanded the matter back to the trial court with a direction to take additional evidence on record and permit the defendant to lead evidence in rebuttal. For this purpose, only one opportunity was directed to be given to the defendants. This judgment is assailed in the present appeal by contending that the documents which were sought to be produced as additional evidence were in possession of respondents No.1 and 2 during the entire trial but they wilfully avoided to produce the same before the trial court. Such documents could not have been permitted to be produced by the court below. The plaintiff was negligent and did not take necessary steps to produce and prove the relevant documents before the trial court. Thus, at appellate stage, the appellant could not have been permitted to improve his case. It is further contended that the necessary ingredients for invoking Order 41, Rule 27 CPC were not satisfied and the court below has mechanically allowed the said application.
3. Shri Ahilesh Jain, learned counsel for the appellant, in support of his contention relied on the judgments in the case of K.R.Mohan Reddy v. M/s Net Work Inc.-AIR 2008 SC 579, Municipal Corporation, Hyderabad v. Sunder Singh-AIR 2008 SC-2579, Murari Lal v. Ram Kumar Ojha and another-2015(1) JLJ-183 and H.V.Vedvyas Acharya v. Shiv Shankar and others-AIR 2010 (Suppl) SC 394. Lastly, reliance is placed in Syeda Rahimunnisa v. Malan Bi (Dead) by L.Rs and another etc.-AIR 2016 SC 4653. Shri Ahkilesh Jain, counsel for the appellant further contended that the court below has given a specific finding that permission to file additional evidence cannot be permitted under Rule 27(1)(a) and (aa). The court below allowed the application by treating it to be only under Rule 27(1)(b) of Order 43. He submits that the reasons assigned in the application preferred under Order 41, Rule 27 CPC do not fulfil the requirement of sub-clause (b).
4. Per contra, Shri Ashok Tiwari, learned counsel for the respondent/ plaintiff supported the impugned order. He submits that the judgment passed by the court below is in accordance with law.
5. No other point is pressed by learned counsel for the parties.
6. I have heard learned counsel for the parties at length and perused the record.
7. The trial court in its judgment framed nine issues viz;(1) Whether the disputed piece of land described in para 2 of plaint was executed through a registered sale-deed by Bihari Lal on 12.5.1967 in favour of plaintiffs grand father and above disputed land's ownership was conveyed by seller on above date to buyer ? (2) Whether Biharilal executed sale-deed for security of debt taken from Devi Lal which was agreed to be extinguished after return of debt according to settled conditions by both parties in sale deeds? (3) Whether after execution of sale-deed on 12.5.1967 by Biharilal, his right of ownership to disputed land
