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2015 DIGILAW 2492 (ALL)

Lal Bahadur Srivatava v. Shushila Devi

2015-08-19

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. Plaintiffs-appellants, who are two in number, have filed original suit no.355 of 1986 for a declaration that the plaintiffs-appellants be declared co-owner of House No.24, Sammelan Marg, Allahabad. A further prayer was made for ejecting the defendant no.2 from the portion of the premises in dispute, as described in Schedule 'A' and 'B' to the plaint, alongwith damages for use and occupation of the premises in occupation of the defendants. 2. It is not in dispute that house in question was owned and constructed by one Late Satguru Prasad. Satguru Prasad was survived by two sons namely Durga Prasad and Purshottam Lal. Purshottam Lal is one of the plaintiffs in the suit. Durga Prasad, elder son of Satguru Prasad, was married to one Smt. Kamla Devi, who is stated to have pre-deceased Satguru Prasad in the year 1940. Satguru Prasad also is stated to have died in the year 1954. According to the case setup by the plaintiff no.1, he was born out of the wedlock of Durga Prasad, elder son of Satguru Prasad, with Smt. Kamla Devi, and when he was born, Satguru Prasad was alive. It is stated that in such factual scenario, plaintiff no.1 became a coparcener of the joint Hindu family. According to the plaintiffs' case, upon death of Satguru Prasad, the house in question devolved upon plaintiffs, and they became owner of the house having 1/2 shares each, respectively. 3. Suit was contested by the two defendants to the suit. It is not disputed that defendant no.2 Ganga Prasad Yadav was the tenant in a portion of the premises since long. Durga Prasad is stated to have died on 5.4.1985. It is stated by the defendant no.1 Smt. Panna Devi that a registered will was executed by Durga Prasad on 21.12.1984 in her favour. According to the defendants' case, Durga Prasad died on 5.4.1985, after having executed a registered will in favour of Smt. Panna Devi, who is claiming to be her wife. It has further come on record that a registered agreement to sell has been executed by Smt. Panna Devi in favour of Ganga Prasad Yadav within five days of the death of Durga Prasad. It has further come on record that a registered agreement to sell has been executed by Smt. Panna Devi in favour of Ganga Prasad Yadav within five days of the death of Durga Prasad. According to defendant no.1, half share of house belonging to Durga Prasad was already partitioned during lifetime of Satguru Prasad and such demarcated portion, falling within the share of Durga Prasad, devolved upon her, by virtue of registered will. According to the defendants, pursuant to the partition, the shares of Durga Prasad and plaintiff no.2 had been clearly demarcated and respective portions were separately recorded in the records of Nagar Mahapalika Allahabad. 4. On the basis of respective pleadings advanced by the parties, evidence was led and the matter was considered by the trial court at the first instance. Trial court on the basis of oral and documentary evidence brought on record came to the conclusion that the will, alleged to have been executed in favour of Smt. Panna Devi, was not even produced and proved, as was required under section 68 of the Evidence Act, and as such, the case of the defendant no.1 of will having been executed by Durga Prasad, was disbelieved. Trial court, therefore, proceeded to decree the plaintiffs' suit with the finding that the plaintiff no.1 is the son of Durga Prasad, born out of his wedlock with Smt. Kamla Devi, and upon death of Durga Prasad, his share had devolved upon him. Further findings were recorded to the effect that Smt. Panna Devi is not legally wedded wife and she has no right in the property. Defendants' case with regard to will was clearly disbelieved. 5. Aggrieved by the judgment and decree of the trial court dated 27.1.1995, defendants filed an appeal, being civil appeal no.100 of 1995 under section 96 of the Code of Civil Procedure. During pendency of the appeal, an application under Order XLI Rule 27 CPC was filed by the defendants before the court below contending therein that the registered will could not be filed before the trial court, as it had been filed in the mutation proceedings, which was pending before the authority concerned, and therefore, a prayer was made to entertain additional evidence, including the registered will. This application under Order XLI Rule 27 CPC was marked as paper no.31C, which ultimately came to be rejected by the appellate court vide order dated 20.9.1999. This application under Order XLI Rule 27 CPC was marked as paper no.31C, which ultimately came to be rejected by the appellate court vide order dated 20.9.1999. This order was challenged by the defendants before this Court by filing writ petition no.49859 of 1999, which was dismissed as withdrawn on 2.12.1999 vide following orders: - "The learned counsel for the petitioner in the totality of the facts and circumstances of the present case submitted that he does not want to press this petition at this stage. He may be permitted to withdraw this petition and he may also be allowed to advise the petitioner to raise all these grievances before the appellate court at the time of hearing of the appeal. The writ petition is dismissed as withdrawn." 6. Defendant no.1, allegedly on the strength of observation made by this Court while dismissing the writ petition, filed a fresh application under Order 41 Rule 27 CPC annexing therewith 22 documents. This application was marked as paper no.50Ga. Upon the application, filed for entertaining additional evidence, initially an order was passed on 12.1.2000 while entertaining the application, which was considered in the subsequent order of the appellate court dated 3.5.2000. Appellate court, after considering the previous order passed on 20.9.2000, as well as the order passed by the writ court, proceeded to observe that the merits of the application filed for admitting additional evidence would be considered alongwith objection thereto, at the time of hearing of the appeal, for which a date was fixed. The appellate court ultimately proceeded to allow the appeal relying upon the documents, which had been brought on record by way of subsequent application filed for entertaining additional evidence on record. It was held that case of the defendants based on the will has been clearly substantiated, and therefore, defendant no.1 was held entitled to half share of Durga Prasad in the house. Appellate court was pleased to observe that essential issue to be decided in the appeal is with regard to validity of the will and all other questions were insignificant. It was also observed by the appellate court that all documents, which were placed before it during pendency of the appeal, can be relied upon by the appellate court. Appeal, therefore, was allowed and judgment and decree of the trial court dated 27.1.1995 was set aside. 7. It was also observed by the appellate court that all documents, which were placed before it during pendency of the appeal, can be relied upon by the appellate court. Appeal, therefore, was allowed and judgment and decree of the trial court dated 27.1.1995 was set aside. 7. Aggrieved by the judgment and decree of the appellate court dated 17.4.2003, plaintiffs-appellants have filed the present appeal invoking jurisdiction of this Court under section 100 of the Code of Civil Procedure. 8. Shri H.N. Singh, Senior Advocate, appearing for the plaintiffs-appellants, has made following submissions: - "(i) Application for entertaining additional evidence filed by the defendants in the suit, at the stage of appeal, had been rejected on 20.9.1999, which order has not been interfered with by writ court, and as such, a second application for the same cause was not maintainable. (ii) Even if the application for additional evidence was to be allowed, it could be done only by way of reasoned speaking order, and thereafter, an opportunity to the plaintiffs was liable to have been granted for adducing evidence in rebuttal, as was required under Order XLI Rule 27 to 29 CPC, which had not been done, and therefore, the appellate order stood vitiated on account of such error of procedure. (iii) The claim setup by the plaintiffs, which had been accepted by the trial court that plaintiff no.1 was the son of Durga Prasad and having been born, while Satguru Prasad was alive, was a coparcener, has not been set aside, and therefore, lower appellate court not set aside the judgment of the trial court, without upsetting the findings recorded, in this regard, particularly keeping in view the provisions of Order XLI Rule 31 of the Code." 9. Learned counsel appearing for defendants-appellants, on the other hand, submits that the registered will had been executed in favour of Smt. Panna Devi, which could not be filed during the proceedings of the suit, at the stage of trial, because it had been placed on record in the mutation proceedings, which were pending, and therefore, the subsequent application at the stage of appeal to bring such documents on record was rightly allowed by the appellate court and the judgment and decree of the lower appellate court suffers from no infirmity. 10. 10. On the basis of submissions so advanced by learned counsel for the parties, following substantial questions arise for consideration in the present appeal: - "(i) Whether a second application to entertain additional evidence at the instance of the defendants, once a similar application stood rejected by the appellate court on 20.9.1999, could be entertained or not, keeping in view the principles of res judicata and issue estoppel? (ii) Whether the lower appellate court was obliged to decide the application for taking additional evidence by way of reasoned speaking order and thereafter to grant opportunity to the plaintiffs to file evidence in rebuttal, before relying upon additional evidence filed alongwith second application under Order XLI Rule 27 CPC?" 11. Having gone through materials available on record of the present appeal, it is more than apparent on record that original will, which was the basis of claim setup by the defendant no.1, had not been filed during pendency of the suit proceedings and subsequent attempt to bring on record the copy of the registered will and other documents by filing an application under Order XLI Rule 27 CPC, vide paper no.31C, stood rejected by appellate court on 20.9.1999. This order had been assailed by the defendants by filing writ petition no.49859 of 1999 before this Court. The writ court noticed the submission of the counsel for the petitioners-defendants to the effect that the remedy of the defendants-petitioners was in approaching the appellate court, and therefore, the writ petition be dismissed as withdrawn. However, parties are at the issue as to whether any liberty was granted by the Court for the purposes of approaching the appellate court afresh, as was prayed. According to counsel for the appellants, the Court merely noticed the submission of the defendants-petitioners, but no liberty was in fact granted by this Court while permitting the defendants to withdraw the writ petition. It is, therefore, submitted that a subsequent application for the same purpose was barred by the principles of res judicata and issue estoppel. Learned counsel appearing for the appellants has placed reliance upon the judgment of the Apex Court in the case of Ishwar Dutt v. Land Acquisition Collector: (2005) 7 SCC 190 to contend that principles of cause of action estoppel and issue estoppel would be attracted in the present case, and therefore, a subsequent application under Order XLI Rule 27 would not be maintainable. Reliance has also been placed upon a decision of the Apex Court in the case of Ajay Mohan and others vs. H.N. Rai and others: (2008) 2 SCC 507 . 12. Learned counsel appearing for the defendants, on the other hand, submits that even though grant of liberty was not specifically so mentioned in the order of the writ court, but in substance, such a liberty was allowed to the petitioner while allowing her to withdraw the writ petition. It is also submitted that there was no serious objection on behalf of the plaintiffs with regard to entertaining of the subsequent application, based on the observations of the writ court, and therefore, it would be too late in the day to permit such objection to be raised by the appellants in this appeal. It is also submitted that if the order of the writ court is construed as not granting any liberty to approach the appellate court, then serious rights of the defendants would be infringed, and defendants would be deprived of a contest on merits in the matter. 13. Having considered these submissions, this Court finds that this aspect of the matter has not been gone into by the appellate court while deciding the appeal itself. Once a contest with regard to entertainability of a second application had been raised before the appellate court, it was incumbent upon the appellate court to have adjudicated this aspect of the matter and it could not have proceeded to decide the appeal without dealing with this aspect of the matter. Since the issue had not been considered by the appellate court, in this regard, I am of the opinion that this Court in the present appeal is not required to adjudicate this question, at this stage. 14. So far as the second substantial question formulated in the present appeal is concerned, this Court finds that the second application filed vide application no.50C under Order XLI Rule 27 CPC, had been directed to be considered at the stage of hearing of the appeal vide order dated 3.5.2001. 14. So far as the second substantial question formulated in the present appeal is concerned, this Court finds that the second application filed vide application no.50C under Order XLI Rule 27 CPC, had been directed to be considered at the stage of hearing of the appeal vide order dated 3.5.2001. Learned counsel appearing for the appellants has taken the Court through the judgment of the appellate court as well as the proceedings of appeal to contend that consideration upon application was deferred to the stage of hearing, and in fact no consideration was offered by the appellate court upon the application under Order XLI Rule 27 CPC. It is submitted that there was in fact no examination by the appellate court on the issue as to whether additional evidence was liable to have been entertained or not. It is also submitted that the objection filed to the application for additional evidence has also not been considered. This factual position could not be disputed by the learned counsel for the respondents. The Court, therefore, finds that the appellate court proceeded to decide the appeal finally relying upon the documents, which were brought on record, vide subsequent application filed urder Order XLI Rule 27 CPC without adjudicating the merits of application for additional evidence itself. This course adopted by the appellate court was wholly impermissible as the appellate court was required to have adjudicated the merits of application under Order XLI Rule 27 CPC, and only thereafter it could have allowed the documents to be taken on record, as forming part of the proceedings of appeal. Unless an order was passed expressly allowing the application under Order XLI Rule 27 CPC, and the documents were admitted for being taken on record, such additional evidence could not have been looked into for the purposes of adjudicating the appeal. This Court finds that the jurisdiction of the appellate court to rely upon the additional evidence depended upon an adjudication on merits of the application itself. Since appellate court had not examined and decided the merits of the application under Order XLI Rule 27 CPC, it had no jurisdiction to rely upon the documents produced during course of appeal. The appellate court, therefore, committed error of jurisdiction in proceeding to entertain additional evidence without adjudicating the issue of admissibility of such evidence. 15. Since appellate court had not examined and decided the merits of the application under Order XLI Rule 27 CPC, it had no jurisdiction to rely upon the documents produced during course of appeal. The appellate court, therefore, committed error of jurisdiction in proceeding to entertain additional evidence without adjudicating the issue of admissibility of such evidence. 15. In view of the discussions made above, I am of the considered opinion that the appellate court has failed to consider the question, which had been raised by the plaintiffs before it, as to whether second application under Order XLI Rule 27 CPC could be entertained and in case it comes to a finding that second application was maintainable, then whether second application was liable to be allowed or not. If it proceeded to do so, it was also required to grant an opportunity to the plaintiffs to submit their evidence in rebuttal. The court finds substance in the contentions advanced by learned counsel for the appellants, in this regard, inasmuch the scheme for entertaining additional evidence has been clearly provided in the Code itself, which lays procedure for additional document to be admitted. Order XLI Rule 27, 28 and 29 of the Code are reproduced: - "Order XLI- Appeals from original decrees. 27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-- (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be exam med. (2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission. 28. (2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission. 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. 29. Points to be defined and recorded.- Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified." 16. Since appellate court has failed to comply with the requirement of the Code and has not even considered the issue, which was raised before it, the judgment and decree of the appellate court dated 17.4.2003 in Civil Appeal No.100 of 1995 cannot be sustained and is hereby set aside. The matter is remitted to the appellate court for a fresh adjudication of the appeal in light of the observations made hereinabove. Since proceedings have remained pending for a period of almost 30 years, the appellate court is requested to take up the matter with all expedition by fixing weekly dates, without granting unnecessary adjournment to either of the parties. 17. The second appeal is allowed accordingly.