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2013 DIGILAW 454 (RAJ)

LR’s of Laxmi Lal v. Nararpalika, Gangapur

2013-02-22

ARUN BHANSALI

body2013
JUDGMENT 1. - This appeal under Order 43, Rule 1 (u) C.P.C. has been preferred against the judgment and decree dated 19.5.2011 passed by the first appellate Court, whereby while allowing the application under Order 41, Rule 27 C.P.C., the Court has set aside the decree passed by the trial Court and has remanded back the entire matter for deciding afresh. 2. The brief facts of the case are that the plaintiffs-appellants filed a suit for injunction against the respondents-defendants with regard to a piece of land. The said suit was decreed by the trial Court on 19.12.2007. 3. Feeling aggrieved, the defendants filed regular first appeal under Section 96 C.P.C. before the appellate Court and during the pendency of the said appeal, two applications were filed by the defendants under Order 41, Rule 27 C.P.C. for placing on record further documentary evidence. When the appeal was heard by the first appellate Court, the appellate Court considered both the applications and came to the conclusion that the applications deserve to be allowed and allowed the same. After allowing the said applications under Order 41, Rule 27 C.P.C., the Court passed the following order : " vr% vihy] vihykFkhZ@izfr la0 2 fo:) izR;FkhZ oknh ,oa izfr] la0 1 ,rn~}kjk vkaf'kd :i ls Lohdkj dh tkdj vihyk/khu fu.kZ; ,oa vKkfIr fnukad 19-12-2007 vikLr dh tkdj ekeys dks fo}ku fopkj.k U;k;ky; dks bl funsZ'k ds] lkFk izfrizsf"kr fd;k tkrk gS fd vkosnu i= vihykFkhZ@izfr- la0 2 v0 vkns'k 41 fu;e 27 lifBr /kkjk 151 flizla- fnukad 13-12-2010 ds lkFk layXu lwph nLrkost o f}rh; lwph nLrkost fnukad 16-3-2011 esa of.kZr nLrkostkr dks vfHkys[k ij fy;k tkdj bl laca/k esa nksuksa i{kksa dks lk{; izLrqr djus dks leqfpr volj nsus ds i'pkr~ iqu% fu.kZ; ikfjr djsA pqafd izdj.k dkQh iqjkuk gks pqdk gS vr% izdj.k dk fuLrkj.k izkFkfedrk ds vk/kkj ij 'kh?kz djus dk iz;kl djsA fu.kZ; izfr lafgr fopkj.k U;k;ky; dk vfHkys[k vfoyEc ykSVk;k tkosA i{kdkjku fnukad 1-7-2011 dks fopkj.k U;k;ky; ds le{k mifLFkr jgsA " 4. It is submitted by learned counsel for the appellants that the procedure adopted by the appellate Court is contrary to the provisions of Order 41, Rule 28 C.P.C. and it was not open for the first appellate Court to set aside the decree passed by the trial Court and remanded back the matter as a whole. It is submitted by learned counsel for the appellants that the procedure adopted by the appellate Court is contrary to the provisions of Order 41, Rule 28 C.P.C. and it was not open for the first appellate Court to set aside the decree passed by the trial Court and remanded back the matter as a whole. It was prayed that the order impugned be set aside and the direction in consonance with the Order 41, Rule 28 C.P.C. be passed. 5. On the other hand, learned counsel for the respondents submitted that all the documents produced by him are copies of revenue record and cannot be disputed. He even proposed that if formal proof is dispensed with then the appellate Court may be directed to decide the appeal itself by taking into consideration the said documents. 6. 1 have considered the rival submissions made at the Bar. 7. The legal position regarding the consequence of accepting an application tinder Order 41, Rule 27 C.P.C. has been considered by this Court in the case of Lal Singh v. Magan Singh, S.B.C.M.A. No. 532 of 2009 decided on 15.2.2013 and after considering the judgments of this Court as well as Hon'ble Supreme Court, it has been held as under : 8. "A bare reading of operative portion of the order passed by the first appellate Court quoted hereinbefore would reveal that the first appellate Court without recording any finding as to the requirement of further evidence and/or proof of the documents produced by the parties under Order 41, Rule 27 C.P.C. has jumped to a conclusion that the decree passed by the trial Court deserves to be set aside and the matter is required to be remanded back. ORDER41, Rule 28 C.P.C. provides that where an additional evidence is permitted by the first appellate Court, then the Court may either take such evidence or direct the Court from whose decree the appeal is preferred to take such evidence and to send it when taken to the appellate Court. It is only in a small number of cases where the Court is more than satisfied that the party was validly and genuinely precluded from producing evidence before the forum in the first instance that a remand for this purpose may be justified. It is only in a small number of cases where the Court is more than satisfied that the party was validly and genuinely precluded from producing evidence before the forum in the first instance that a remand for this purpose may be justified. Considering the provision of Order 41, Rule 28 C.P.C., Hon'ble Supreme Court in the case of H.V. Vedavyasachar v. Shivashankara & Anr., reported at (2009) 8 SCC 231 , has held as under : "7. However, so far as the second contention raised by the learned counsel for the appellant is concerned, in our opinion, the same has substance. When an application for adducing additional evidence is allowed the appellate Court has two options open to it. It may record the evidence itself or it may direct the trial Court to do so. 8. Order 41 Rule 28 C.P.C. reads as under : "28. Mode of taking additional evidence.- Wherever additional evidence is allowed to be produced, the appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the appellate Court." For the aforementioned purpose, in our considered opinion, the High Court could not have directed the trial Court to dispose of the suit after taking evidence. Such an order of remand could be only in terms of Order 41 Rule 28, Order 41 Rule 23-A or Order 41 Rule 25 of the Code. None of the said provisions have any application in the instant case." Applying the ratio of law laid down by Hon'ble Supreme Court, it is clear that the Court below has legally erred in directing the trial Court to decide the suit afresh after taking additional evidence and the same is not sustainable in law." 8. In that view of the matter, it is obvious that the impugned order passed by the first appellate Court cannot be sustained and the same, therefore, deserves to be set aside. 9. Consequently, the order impugned passed by the first appellate Court is set aside to the extent it has set aside the decree passed by the trial Court and the matter has been remanded back to the trial Court. 9. Consequently, the order impugned passed by the first appellate Court is set aside to the extent it has set aside the decree passed by the trial Court and the matter has been remanded back to the trial Court. The Appeal No. 14/2008 is restored back to the file of the first appellate Court and it is directed to pass a fresh order after affording an opportunity of hearing to both the parties 'either allowing the parties to adduce evidence before it or to prove the documents permitted to be taken on record under Order 41, Rule 27 C.P.C. by the trial Court in terms of Order 41, Rule 28 C.P.C.' The parties may appear before the first appellate Court either personally or through counsel on 11.03.2013. The appeal is allowed accordingly. No costs. Appeal allowed. *******