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2016 DIGILAW 2310 (HP)

Jagdish Raj v. Dhali Devi

2016-11-01

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Order dated 10.05.2016 passed by learned District Judge, Kullu in an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure registered as Civil Miscellaneous Application No. 144 of 2015, is under challenge in this petition. Learned lower appellate Court has allowed the application and permitted the respondent-plaintiff to produce the documents i.e. sale deeds and gift deeds executed by Poshu, a co-sharer in the suit land measuring 4-4-0 bighas entered in Khasra No. 576, Khata Khatauni No. 104/166 to the extent of 68/672 shares situated at Phati Balh Kothi Maharaja, Tehsil and District, Kullu. 2. The respondent (hereinafter referred to as the ‘plaintiff’) claims herself to be the owner in possession of the suit land, as according to her Shri Poshu has gifted away the same to her. The petitioners (hereinafter referred to as the ‘defendants’) when allegedly started causing interference in the suit land, she filed a suit in the Court of learned Civil Judge (Senior Division), Kullu, District Kullu, Himachal Pradesh for the decree of permanent prohibitory injunction on several grounds, however, mainly that in view of alienation of the suit land by said Shri Poshu, partly in favour of defendant No. 2 and partly in favour of Sunita Kumari, Dushyant Thakur and Khekh Ram by way of sale deeds and also the gift deeds, he was not left with any land for being gifted away to the plaintiff. 3. On the pleadings of the parties issues including as to whether plaintiff is neither owner nor in possession of the suit land came to be framed in the suit in the trial Court. The parties were put to trial. After having taken on record the evidence produced by the parties on both sides and affording opportunity of being heard, learned trial Judge has dismissed the suit. 4. The plaintiff is now in appeal before learned lower appellate Court. It is during the pendency of the appeal, an application under Order 41 Rule 27 of the Code of Civil Procedure has been filed, which has been accepted by learned lower appellate Court vide order under challenge in this petition. 5. On behalf of the petitioners-defendants, it is canvassed that onus to prove issue No. 4, no doubt, was on them and they discharged the same satisfactorily. 5. On behalf of the petitioners-defendants, it is canvassed that onus to prove issue No. 4, no doubt, was on them and they discharged the same satisfactorily. The plaintiff, however, has failed to produce any rebuttal evidence at an appropriate stage during the course of proceedings in the suit. Now the application having been filed at a belated stage, that too, without any explanation as to what prevented her from producing the evidence at an appropriate stage, the application has been sought to be dismissed. Mr. Bimal Gupta, learned Senior Advocate has also urged that otherwise also, the application should have been considered along with the main appeal at the time of final hearing and not in isolation. 6. On the other hand, Mr. Rajiv Jiwan, learned counsel representing the plaintiff has contended that the documents being certified copies of the sale deeds and gift deeds have rightly been allowed to be produced in additional evidence by learned lower appellate Court. According to Mr. Jiwan, the order under challenge calls for no interference in these proceedings. 7. Having gone through the record of the case and also analyzing the rival submissions, no doubt, a party to the lis can be allowed to produce additional evidence, however, before the commencement of trial. The proviso to Order 41 Rule 27 provides for seeking such permission even after the commencement of trial also, however, before allowing the application the Court ceased of the matter should record its satisfaction that the party seeking the permission to produce additional evidence failed to do so at an appropriate stage despite due diligence. In the application Annexure P-2, no plausible explanation except for that it is despite due diligence, the plaintiff has failed to produce the evidence, has come on record. Any how, without going into this controversy, I switch over to the alternative submissions made on behalf of the petitioners-defendants that the application should have been considered and decided at the time of final hearing of the appeal. The submissions so made find support from the judgment of the Hon’ble Apex Court in State of Rajasthan V. T.N. Sahani and others (2001) 10 Supreme Court Cases 619. “4. The submissions so made find support from the judgment of the Hon’ble Apex Court in State of Rajasthan V. T.N. Sahani and others (2001) 10 Supreme Court Cases 619. “4. It may be pointed out that this Court as long back as in 1963 in K. Venkataramiah v. Seetharama Reddy pointed out the scope of unamended provision of Order 41 Rule 27 (c) that though there might well be cases where even though the court found that it was able to pronounce the judgment, on the state of the cord as it was, and so, additional evidence could not be required to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. This is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41 Rule 27(b) CPC can be invoked. So the application under Order 41 rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view, would be inappropriate. Further the reason given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly set aside. The application is restored to its file. The High Court will now consider the appeal and the application and decide the matter afresh in accordance with law.” 8. In the given facts and circumstances of this case also, the appropriate course available to learned lower appellate Court was to have considered the application along with the main appeal at the time of final hearing and not to decide the same in isolation. In the given facts and circumstances of this case also, the appropriate course available to learned lower appellate Court was to have considered the application along with the main appeal at the time of final hearing and not to decide the same in isolation. Therefore, subject to the rights and contentions of the parties with respect to the merits of the case, the impugned order is quashed and set aside. There shall be a direction to learned lower appellate Court to consider and decide the application afresh at the time of final hearing of the appeal. The parties through learned counsel representing them are directed to appear in learned lower appellate Court on 5th December, 2016. The record of the case be sent back so as to reach there well before the date fixed. 9. The petition stands disposed of accordingly. Pending applications, if any, shall also stand disposed of. 10. The observations hereinabove shall remain confined to the disposal of this petition and have no bearing on the merits of the case.