1992 Supreme(MP) 608

R.C. Lahoti, J.
Bhuresingh v. Khusalsingh
S.A. No. 147 of 1981 (G); Decided on 23.9.1992.

Headnote:Civil P.C. 1908 -- O. 41, R. 27 -- admission of additional evidence -documents adduced should be considered whether or not those are to be proved -- opportunity to rebut the evidence should be provided to opponent.

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        A suit for declaration of title and confirmation of possession relating to a piece of immoveable property was dismissed by the trial Court. The plaintiff preferred an appeal. Before the first appellate Court the plaintiff also filed an application under Order 41, Rule 27 C.P.C. proposing to file in additional evidence certified copies of Khewat Samvat year 1999 and a sale-deed. The application was opposed on behalf of the defendants, respondents thereat. The lower appellate Court heard the appeal on merits along with the application under Order 41, Rule 27 C.P.C. The appeal has been allowed and the suit filed by the plaintiff directed to be decreed.

       

        Held: A perusal of the judgment of the lower appellate Court shows that vide para 28 of its impugned judgment, the lower appellate Court has allowed the application under order 41, Rule 27 C.P.C. Vide para 25 the certified copy of the sale- deed has been taken into consideration for holding the case of the plaintiff proved and consequently reversing the judgment and decree of the trial Court. The suit of the plaintiff has been decreed. Admittedly no opportunity was given to the defendants of adducing any evidence in rebuttal.

        The lower appellate Court has committed a gross illegality of procedure resulting in serious prejudice to the interests of the defendants. No doubt the lower appellate Court had discretion in admitting the documents in additional evidence and that discretion once exercised is not ordinarily open to be interfered with by this Court. However, the illegality lies in the lower appellate Court not considering whether the certified copy of the sale-deed could have been read in evidence without demanding its proof and also not affording the defendants an opportunity of adducing evidence in rebuttal, once the lower appellate Court had chosen to admit the documents in evidence. In IA.O.C.I.T.B. Bangalore v. H. Narayanaiah (AIR 1976 SC 2403) their Lordships set aside the judgment of the High Court which had admitted documents in additional evidence but without giving any opportunity to the party affected to rebut any inference arising and remanded the matter to the High Court for decision afresh. The Division Bench of this Court has followed the abovesaid Supreme Court decision in Liladhar v. Shushilabai [1990-II J.D.D. (Civil) Note 27].

        On this short point the appeal is allowed. The judgment and decree of the lower appellate Court are set aside. The appeal is remanded to it for hearing and disposal afresh. The two documents filed by the plaintiff along with the application dated 1.4.1981 before the lower appellate Court shall be admitted in additional evidence. The Court shall examine whether the documents require to be proved or not by the plaintiff. In any case the defendants shall be allowed an opportunity of adducing evidence in rebuttal. The evidence may be recorded by the Court itself or may be got recorded by the trial Court. In either case seisin of the appeal shall be retained by the lower appellate Court. The appeal shall then be heard and decided afresh. AIR 1976 SC 2403 followed.