Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 982 (MP)

Jeewan Lal Sahu v. Mst. Lalli bai

2013-08-20

Alok Aradhe

body2013
ORDER 1. This appeal is by the defendant, which was admitted by a Bench of this Court on the following substantial question of law :- “Whether the impugned judgment can be sustained in view of the consideration of the documents i.e. Khasra Panchshala brought on the record as per order dated 5.1.2005 under Order 41 Rule 27 without having been proved in accordance with law ?” 2. Facts giving rise to filing of the appeal briefly stated are that the plaintiffs filed a suit on the ground that the plaintiffs are owner of land bearing survey No.108 admeasuring 2.70 acres. It was further pleaded that the land of defendant is situate adjoining to land of the plaintiff. However, on 24.2.1996, the defendant No. 1 threatened the plaintiff with dispossession. Accordingly, the plaintiff filed a suit seeking relief of declaration of title and possession. 3. The defendant No. 1 filed the written statement, in which inter-alia it was pleaded that the plaintiffs have never been in possession of the suit land. It was further pleaded that the suit land forms part of the land bearing survey No.188 and 188/1170, which belongs to the defendant No. 1. The defendant No.1 also filed a counter claim seeking the relief of declaration of title on the basis of adverse possession. 4. The trial Court vide judgment and decree dated 22.3.2003 dismissed the suit filed by the plaintiffs and decreed the counter claim of the defendant No.1. Being aggrieved by the aforesaid decree, the plaintiffs filed an appeal. During pendency of the appeal, the plaintiffs filed an application under Order 41 Rule 27 of the Code of Civil Procedure. The lower appellate Court in paragraph-15 of the judgment held that since the defendant No.1 has not opposed the prayer for adducing the additional evidence, the same was allowed and documents annexed with the application under Order 41 Rule 27 of the Code of Civil Procedure were taken on record. The lower appellate Court thereafter set aside the judgment and decree passed by the trial Court and decreed the suit by the plaintiffs. 5. The lower appellate Court thereafter set aside the judgment and decree passed by the trial Court and decreed the suit by the plaintiffs. 5. Learned counsel for the appellant while inviting the attention of this Court to the order dated 5.1.2005 has submitted that the prayer for adducing additional evidence was opposed on behalf of the defendant No. 1, however, the lower appellate Court has incorrectly held in paragraph-15 of its judgment that the prayer was not opposed by the defendant No.1. It is further submitted that in any case, the lower appellate Court was under an obligation to give an opportunity to the appellant to adduce the evidence in rebuttal. 6. I have considered the submissions made by learned counsel for the appellant and have perused the record. From perusal of order-sheet dated 5.1.2005, it is evident that the prayer for adducing the additional evidence was opposed by the defendant No.1 however, the lower appellate Court has allowed the application merely on the ground that such prayer has not been opposed on behalf of the defendant No.1. It is pertinent to mention here that the power of the Court to permit the additional evidence to be adduced by a party is circumscribed by the conditions mentioned in Order 41 Rule 27 of the Code of Civil Procedure. From perusal of the judgment of the lower appellate Court, it is evident that the lower appellate Court has not applied its mind to the issue whether any of the conditions mentioned in Order 41 Rule 27 of the Code of Civil Procedure are satisfied. Therefore, the lower appellate Court committed an error of law in allowing the application under Order 41 Rule 27 of the Code of Civil Procedure. Accordingly, the substantial question of law framed by this Court is answered in favour of the appellant. 7. In the result, the judgment and decree passed by the lower appellate Court is set aside. The record of Courts below be sent back forthwith to the lower appellate Court to decide the application under Order 41 Rule 27 of the Code of Civil Procedure afresh and in case, the lower appellate Court comes to the conclusion that same deserves to be allowed, needless to state that the appellant shall be afforded an opportunity to lead evidence in rebuttal. Accordingly, the appeal stands disposed of.