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2015 DIGILAW 440 (UTT)

SWAMI RAM NIVAS RAM SANEHI v. SWAMI RAM VINOD

2015-09-09

U.C.DHYANI

body2015
JUDGMENT U.C. Dhyani, J.(Oral) Present second appeal has been preferred by defendant no. 1-appellant being aggrieved against judgment and decree dated 01.09.2006, whereby the appeal preferred by plaintiff-respondent no. 1 was allowed and the judgment and decree dated 13.02.2003, passed by learned Civil Judge (Sr. Div.)/trial court was set aside. Plaintiff’s suit for permanent prohibitory injunction was decreed. The defendants were directed to restrain themselves from interfering into the possession of the suit property. Aggrieved against the same, defendant no. 1 has preferred the present second appeal. 2. A perusal of the trial court judgment will indicate that suit of the plaintiff (respondent no. 1 herein) was dismissed. It is not necessary to indicate herein the pleadings of the parties, inasmuch as the same will be discussed in due course at an appropriate place in the body of this judgment. Suffice will it be to say at this stage that on the basis of rival pleadings the following issues were framed by the trial court: (i) Whether the plaintiff is owner in possession of the disputed property? (ii) Whether the suit is undervalued and court fee paid is insufficient? (iii) To what relief, if any, is the plaintiff entitled? 3. The trial court considered the oral and documentary evidence and held, on the basis of such evidence, that the plaintiff has failed to establish that he was the owner of the suit property. The second issue was already decided as preliminary issue. The trial court also observed that the plaintiff failed to prove the Will dated 08.12.1993. The trial court has observed that the defendant no. 1 has succeeded in establishing that a Will was executed on 14.12.1993 in favour of defendant no. 1. The Will dated 14.12.1993 is the last Will and, therefore, the plaintiff was not entitled to any relief. 4. As stated earlier, the judgment and decree passed by the trial court was challenged before the lower appellate court, who found that the plaintiff was owner in possession of the suit property. The disputed property was the self acquired property of Swami Ram Kishor Maharajji and since he executed a Will in favour of the plaintiff, who is owner in possession of the disputed property, therefore, the plaintiff was entitled to the relief of permanent prohibitory injunction. The disputed property was the self acquired property of Swami Ram Kishor Maharajji and since he executed a Will in favour of the plaintiff, who is owner in possession of the disputed property, therefore, the plaintiff was entitled to the relief of permanent prohibitory injunction. Learned lower appellate court found illegality in the judgment of the trial court and, hence, allowed the appeal and directed the defendants to restrain themselves from interfering in to the possession of the plaintiff, vide judgment and decree dated 01.09.2006. 5. When the Second Appeal was admitted on 07.11.2006, the following substantial questions of law were framed: (1) Whether the Will dated 08.12.1993, which was alleged to have been executed in favour of the respondent no. 1/plaintiff has not been proved in accordance with the provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act? (2) Whether the last Will shall prevail over the former Will, which was executed in favour of the appellant? 6. In the meantime, the parties were directed to maintain status quo and not to create third party interest on the suit property. An application under Order XLI Rule 27 CPC was moved on behalf of the appellant to adduce additional evidence, which was dismissed by the co-ordinate bench of this Court vide order dated 01.08.2007. 7. On 19.11.2012, the third substantial question of law was framed as follows: (3) Whether the lower appellate court failed to adjudicate upon the appeal in accordance with Order XLI Rule 31 of Code of Civil Procedure, 1908? 8. Thereafter, vide order dated 14.08.2014, passed by the co-ordinate bench of this Court, another application filed under Order XLI Rule 27 CPC read with Section 151 CPC was allowed at the instance of respondent no. 1. 9. A co-ordinate bench of this Court, vide judgment dated 25.09.2014, dismissed the Second Appeal with costs throughout. Interim order dated 07.11.2006 was accordingly vacated. 10. Aggrieved against the judgment dated 25.09.2014, passed in Second Appeal no. 62 of 2006, defendant no. 1-appellant preferred two Special Leave Petitions before Hon’ble Supreme Court, one challenging the final judgment delivered in Second Appeal no. 62 of 2006, and another assailing the findings of the court below, whereby additional evidence was allowed under Order XLI Rule 27 CPC. In Civil Appeal no. 3305 of 2015 [arising out of SLP (C) no. 1-appellant preferred two Special Leave Petitions before Hon’ble Supreme Court, one challenging the final judgment delivered in Second Appeal no. 62 of 2006, and another assailing the findings of the court below, whereby additional evidence was allowed under Order XLI Rule 27 CPC. In Civil Appeal no. 3305 of 2015 [arising out of SLP (C) no. 34832 of 2014], Hon’ble Supreme Court passed the order thus: “In the aforestated circumstances, we set aside the impugned judgment delivered by the High Court in the Second Appeal and remand the matter to the High Court.” 11. In Civil Appeal no. 3304 of 2015 [arising out of SLP (C) no. 10271 of 2015], the following order was passed: “Looking at the facts of this case, we are of the view that CLMA no. 8704 of 2014 filed in the second appeal decided on 14.08.2014 should also be heard along with Second Appeal no. 62 of 2006, and therefore, we set aside the order in CLMA no. 8704 of 2014 in Second Appeal no. 62 of 2006. The application filed under Order 41 Rule 27 shall also be heard along with the second appeal being Second Appeal no. 62 of 2006 and shall be decided in accordance with law.” 12. A suit was filed by the plaintiff (respondent no. 1 herein) against the defendants (appellant and respondent no. 2 herein) in the court of Civil Judge, Haridwar, which was numbered as O.S. no. 73 of 1994, for a decree of permanent prohibitory injunction for restraining the defendants not to interfere in the suit property, which was detailed and specified at the foot of the plaint. Plaint averments were that Swami Ram Kishorji Maharaj, Guru of the plaintiff, purchased the suit property out of his self acquired income vide registered sale deed dated 18.07.1991 and continued to remain the owner in possession of the suit property during his lifetime. Swami Ram Kishorji Maharaj passed away on 08.01.1994. He executed a Will in favour of the plaintiff on 08.12.1993, and since then, the plaintiff is owner in possession of the suit property. The defendants have no concern with the suit property. The defendants have wrongly projected themselves to be the disciple and heirs of Swami Ram Kishorji and want to forcibly trespass into the suit property. He executed a Will in favour of the plaintiff on 08.12.1993, and since then, the plaintiff is owner in possession of the suit property. The defendants have no concern with the suit property. The defendants have wrongly projected themselves to be the disciple and heirs of Swami Ram Kishorji and want to forcibly trespass into the suit property. The defendants threatened the plaintiff in April 1994 and, therefore, the cause of action arose to the plaintiff to file such a suit for permanent prohibitory injunction. 13. Defendant no. 1 filed his written statement denying the plaint averments. Apart from the averment that the suit was undervalued and court fee paid was insufficient, defendant no. 1 admitted in paragraph 10 of the written statement that Swami Ram Kishorji purchased the disputed property on 18.07.1991 vide registered sale deed for a consideration of Rs. 1,90,000/-. It was denied in paragraph 12 of the written statement that Swami Ram Kishorji Maharaj ever executed a Will in favour of the plaintiff on 08.12.1993. It was also denied that after the death of Swami Ram Kishorji Maharaj, the plaintiff became the owner in possession of the suit property. It was also denied that the plaintiff ever became the disciple of Swami Ram Kishorhji Maharaj. The alleged Will dated 08.12.1993 is nothing but a fake document. It was stated in the written statement that Swami Ram Kishorji Maharaj executed the first and last Will on 14.12.1993, in favour of the answering defendant, i.e., defendant no. 1. It was also stated in the written statement that defendant no. 2 has also no concern with the suit property. Defendant no. 1 served Swami Ram Kishorji Maharaj throughout his life and it was he, who, was appointed by late Guru Swami Ram Kishoreji Maharaj as registered Power of Attorney. 14. Defendant no. 2 filed a separate written statement and denied plaint averments. He denied that the property in question was purchased by Swami Ram Kishorji and remained owner in possession of the suit property during his lifetime. In other words, it was denied that the disputed property was the self acquired property of Swami Ram Kishorji. In fact, according to defendant no. 2, the owner of the suit property is Antarrashtriya Ram Snehi Sect having its Head Office at Shahpura, District Bhilwara (Rajasthan). Defendant no. 2 is the Headman of said Ram Snehi Sect. In other words, it was denied that the disputed property was the self acquired property of Swami Ram Kishorji. In fact, according to defendant no. 2, the owner of the suit property is Antarrashtriya Ram Snehi Sect having its Head Office at Shahpura, District Bhilwara (Rajasthan). Defendant no. 2 is the Headman of said Ram Snehi Sect. Ram Kishorji Maharaj purchased the suit property out of gifts and donations contributed by Antarrashtriya Ram Snehi Sect, and since then, aforesaid Sect is owner in possession of the suit property. In other words, the aforesaid Sect has become the owner in possession of the suit property, which is managed by the Acharya. Defendant no. 2 Swami Ram Dayal claimed in the written statement that he is managing the properties of the Sect. The plaintiff, according to written statement filed by DW2, has been excommunicated from the said Sect and, hence, the suit should be dismissed. Defendant no. 2 Swami Ram Dayal also challenged the order dated 01.09.2006 before this Court in Second Appeal no. 79 of 2006, which second appeal was dismissed for want of prosecution. 15. After considering the evidence on record, learned Tribunal dismissed the suit of the plaintiff. On appeal, the lower appellate court set aside the judgment and decree dated 13.02.2003 and granted a decree of permanent prohibitory injunction in favour of the plaintiff (appellant therein). Aggrieved against the same, present second appeal has been preferred. 16. Since Hon’ble Apex Court vide order dated March 16, 2015, has directed that the application filed under Order XLI Rule 27 CPC shall also be heard along with the second appeal being Second Appeal No. 62 of 2006 and shall be decided in accordance with law, therefore, this Court proceeds to decide such application first. 17. An application under Order XLI Rule 27 read with Section 151 CPC was filed by the appellant on 07.08.2014 alongwith an affidavit of Swami Ram Vinod (plaintiff) before this Court praying that the plaintiff-respondent no. 1 be permitted to file the additional evidence and the additional evidence filed alongwith application CLMA no. 8704 of 2014 be accepted on record. 18. Annexure nos. 1 to 5 were enclosed alongwith application under Order XLI Rule 27 CPC. 19. Learned counsel for the defendant no. 1-appellant vehemently opposed such a move of the respondent no. 1. 1 be permitted to file the additional evidence and the additional evidence filed alongwith application CLMA no. 8704 of 2014 be accepted on record. 18. Annexure nos. 1 to 5 were enclosed alongwith application under Order XLI Rule 27 CPC. 19. Learned counsel for the defendant no. 1-appellant vehemently opposed such a move of the respondent no. 1. Learned counsel for the appellant relied upon a judgment rendered by Hon’ble Apex Court in Union of India vs Ibrahim Uddin and another (2012) 8 SCC 148 . Paragraphs no. 36, 37 and 52 of which are important in the context of present controversy and are being reproduced here-in-below for reference: “36. The general principle is that the appellate court should not travel outside the record of the lower court and connot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy AIR 1963 SC 1526 , Municipal Corpn. Of Greater Bomany vs Lala Pancham AIR 1965 SC 1008 , Soonda Ram v. Rameshwarlal AIR 1975 SC 479 and Syed Abdul Khader v. Rami Reddy AIR 1979 SC 553 ). 37. The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. AIR 1978 SC 798 ). 52. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. AIR 1978 SC 798 ). 52. Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.” 20. Except one document, i.e., Annexure-5, all other documents pertain to the period when the Second Appeal, in the first round, was pending before this Court. Clause (aa) of sub-Rule (1) of Rule 27 of Order XLI CPC provides that parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, but if 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, the appellate court may allow such evidence or document to be produced. 21. A perusal of the application under Order XLI Rule 27 CPC, as also the documents which have been enclosed with such an application, reveal that the documents so submitted were (and are) necessary for the just decision of the case. 22. Learned counsel for respondent no. 1 submitted that during the pendency of the present Second Appeal and during the pendency of the proceedings before the Delhi High Court, Swami Ram Niwas has appeared and recorded his statement as PW2 before the court dealing with the probate case. 22. Learned counsel for respondent no. 1 submitted that during the pendency of the present Second Appeal and during the pendency of the proceedings before the Delhi High Court, Swami Ram Niwas has appeared and recorded his statement as PW2 before the court dealing with the probate case. In the examination of PW2 Ram Niwas in Testamentary Case No. 38 of 2007, on 06.02.2012, he has recorded the statement to the following effect: (i) For the last 4 to 5 years he has not visited the suit property and has not been residing in the suit property. (ii) In the statement by the appellant Swami Ram Niwas recorded on 06.02.2012 certain important aspects have been admitted by him to the following effect: (a) He knew Balram Gupta for last 20 years. (b) Balram Gupta has not renounced the world and is in family (c) He admits that he has sold away the suit property to Balram Gupta by sale deed. (d) However, he states that he do not remember the quantum of sale consideration paid by him to Balram Gupta. (e) And he stated that he cannot admit or deny the suggestion about the sale made by him to Balram Gupta after taking Rs. 44 lakhs as sale consideration, but again reiterated that he did not take any money from Balram Gupta and simply executed the sale deed. On being posed with the question as to whether PW2, i.e., Swami Ram Niwas holds any bank account, the following reply was extended: I) Swami Ram Niwas has stated that, “I do not hold a bank account” II) Then again said that he holds a bank account in Punjab National Bank, Fatehpuri, Delhi but denied to remember bank account number. III) He admits that he has received from Balram Gupta as many as six cheques which he contends that he has not encashed. In the statement recorded in the testamentary case on 06.11.2013, Swami Ram Niwas made the following statements: a) I accepted cheques towards sale consideration of the suit property b) He admits that the statement made on the previous date, i.e., 06.02.2012 of having returned the cheques of sale consideration to Balram Gupta was a wrong statement given by him. c) He stated that he has received the entire sale consideration of the suit property from the purchasers. c) He stated that he has received the entire sale consideration of the suit property from the purchasers. d) He admits that the person accompanying on 06.11.2013 in the proceedings of testamentary case is the purchaser Balram Gupta. e) He recorded a statement that he has deliberately concealed the bank pass book as it would reflect that he has received the complete sale consideration through cheques from Balram Gupta. 23. Learned counsel for respondent no. 1 further submitted that the witness DW1 of the criminal proceedings (State vs Swami Govind Ram decided on 09.03.2011) admitted that the accused person used to visit the premises in question and also used to stay there. In the criminal proceedings decided on 09.03.2011, the Court held that in the statement of PW2 complainant Swami Ram Niwas, it has been held that the allegation that the accused had taken possession of any room was not correct as they were sitting inside the hall on the ground floor and thus ultimately held that the prosecution failed to prove the essential ingredients of section 448 of IPC beyond reasonable doubt. 24. At this stage of dictation, learned counsel for defendant no. 1-appellant also submitted that Annexure nos. 1 to 3, proposed by the applicant-respondent no. 1, is incomplete in the sense that the examination-in-chief of PW2 before Probate Court at Delhi has not been filed and his cross-examination was also incomplete, but has now been completed. 25. The additional evidence cannot be allowed at the appellate stage except in the three situations mentioned in Rule 27, and any evidence given in Appellate Court not covered under the Rule shall not be read in evidence. Permission to adduce additional evidence can be given by Appellate Court subject to such conditions and limitations as are prescribed in Order XLI Rule 27 CPC. Mere ground that the document can be produced at any time before the decision of the appeal is not sufficient to allow additional evidence. In the instant case, additional evidence thus filed by respondent no. 1/plaintiff relate to the period of pendency of present second appeal. In other words, such documents were not available either at the stage of trial or during the pendency of first appeal. Since the documents so filed have a bearing on the merits of the instant case, therefore, permission can be granted to the respondent no. 1/plaintiff relate to the period of pendency of present second appeal. In other words, such documents were not available either at the stage of trial or during the pendency of first appeal. Since the documents so filed have a bearing on the merits of the instant case, therefore, permission can be granted to the respondent no. 1/plaintiff to produce such additional evidence under Order XLI Rule 27 CPC. Possibly, the Appellate Court may require such additional evidence to enable it to pronounce judgment or for any other substantial cause. Production of additional evidence cannot be allowed where the party applying for it does not satisfy the court that such evidence was not within his knowledge or could not be produced with due diligence. It is only when the Appellate Court ‘requires it’ that additional evidence can be admitted. 26. This Court is, therefore, of the view that application under Order XLI Rule 27 CPC filed on behalf of plaintiff-respondent no. 1 should be allowed. The same is, accordingly, allowed. The documents filed on behalf of the appellant-defendant no. 1, in rebuttal on 05.09.2014, are taken on record. 27. After the Allahabad High Court amendment in Order XLI Rule 23 CPC (inserted vide Uttar Pradesh Gazette, dated 1st June, 1957), Order XLI Rule 23 reads thus: “23. Remand of case by Appellate Court. – Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal or where the Appellate Court while reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case, it may, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject all just exceptions, be evidence during the trial after remand.” 28. This Court, therefore, considers it necessary, in the interest of justice to remand the case to the court below directing that the First Appeal shall be decided afresh on all issues, in accordance with law. Appellant-defendant no. This Court, therefore, considers it necessary, in the interest of justice to remand the case to the court below directing that the First Appeal shall be decided afresh on all issues, in accordance with law. Appellant-defendant no. 1 shall also be at liberty to file any other document in rebuttal. The first appellate court shall be at liberty to look into the admissibility or otherwise of the documents filed on behalf of the plaintiff-respondent no. 1 or the documents filed by appellant-defendant no. 1, in rebuttal. 29. While setting aside the decree of the lower appellate court, this Court directs that the parties shall maintain status quo on the suit property till the decision of the First Appeal. It is further directed that the First Appeal shall be heard at an early date and no unnecessary adjournments shall be granted to any of the parties. 30. Parties shall appear before the learned first appellate court on 09.10.2015, whereafter learned first appellate court shall proceed with the case, as per law. Let the lower court record be sent back immediately. 31. Second Appeal thus stands disposed of.