Sampurna Singh vs Harisingh - 1997 Supreme(MP) 1107

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : A.K. Shrivastava
For the Respondent: Vilas Tikhe

Headnote:(1) Civil Procedure Code, 1908 – – O.41 R.27 (1) – – additional evidence in appeal – cannot be permitted to be adduced without first hearing appeal on merits.
       (2) Civil Procedure Code, 1908 – – O.6 R.17 – – application for amendment of pleading filed in appeal – – cannot be disposed of without first hearing the appeal on merits.
        Short Note
       1. This is defendants revision application under section 115 of the Code of Civil Procedure, in which they are impugning the order dated 29.10.96 passed by the District Judge, Guna in appeal No. 18 – A/95 whereby the application filed by the plaintiff – non – applicant No.1 under Order 6 Rule 17 for amendment of the plaint and the application under Order 41 Rule 27 praying for allowing him to produce additional document in evidence, have been allowed. Plaintiff – non – applicant No.1 filed the suit for declaration but the trial Court dismissed the suit. Aggrieved by the dismissal of the suit, plaintiff preferred appeal which was registered as appeal No. 18 – A/95. Before the appellate Court, the plaintiff filed the application for amendment in the plaint as also for allowing him to produce additional document in evidence.
       2. In view of the order, which I proposed to pass, it is not necessary to narrate the amendment sought for by the plaintiff or the document which it intended to file as additional document.
       3. Shri Shrivastava appearing in support of this revision application submits that the appellate Court ought not to have considered those applications before hearing the case on merits. In support of the aforesaid submission learned counsel has placed reliance on a judgment of this Court in the case of Khemchand v. Govt. of M.P., 1972 JLJ 482, and my attention has been drawn to the following paragraphs which reads as follows : –
       "Even though the position that an appellate Court is not in a position to decide whether additional evidence should be allowed in the appeal unless it is first heard on merits is clear enough on the wording of Order 41, Rule 27 (1) itself, the practice has grown up in the lower appellate Courts of deciding an application under Order 41, Rule 27 (1) immediately after it is moved and even before hearing the appeal on merits. It is beyond comprehension how the appellate Courts are able to decide such applications when they have no idea whatsoever of the merits of the appeal. This practice must stop forthwith and no lower appellate Court should yield to the request of any party to consider its application under Order 41 Rule 27 (I) before the hearing of the appeal itself. The appeal must first be heard on the merits and then the lower appellate Court should decide whether the application for production of additional evidence should or should not be allowed. If the application is allowed, then, no doubt, the appeal has to be heard again on merit after the reception of additional evidence for final disposal".
       "What has been said in relation to an application under Order 41, Rule 27 (1) applies equally to the disposal of an application for amendment of pleading made at the appellate stage. The question whether a party should or should not be allowed to amend its pleadings at the appellate stage cannot in its very nature be decided unless the appeal is first heard on merits. The order of the Additional District Judge, Chhindwada, permitting the non – applicants Nos. 4 and 5 to produce additional evidence and to amend their written statement must, therefore, be set aside and the Additional District Judge, must be directed to consider the said non – applicants' application under Order 41, Rule 27 and the application for amendment of the written statement after hearing the appeal on merits". (Emphasis supplied)
       4. It is an admitted position that hearing of the appeal has not taken place. As such the authority relied on by the learned counsel for the petitioner supports its contention. No authority taking a contrary view have been placed before me by Shri Tikha appearing on behalf of non – applicant No.1. However, he submits that the judgment referred to above has been rendered by Single Judge and the same is not binding on me and I can take a different view from that. This is argument of desperation. Nothing has been pointed out to me to take a different view. Judgment which held the field for about 25 years cannot be brushed aside so lightly. Accordingly, I do not find any substance in this submission of the learned counsel for non – applicant No.1.
       5. In the result, the revision application is allowed and the impugned order is set aside and the appellate Court is directed to dispose of the application filed by the plaintiff under Order 6 Rule 17 as also under Order 41 Rule 27 ref=act:10444>CPC after hearing the appeal on merits. However, in the facts and circumstances of the case, there shall be no order as to cost.