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2021 DIGILAW 230 (RAJ)

Heerabai Kalal v. Bherulal

2021-01-28

GOVERDHAN BARDHAR

body2021
JUDGMENT : Goverdhan Bardhar, J. 1. Challenge in the present civil misc. appeal filed by the defendants/appellants (for short 'the defendants') u/Sec. 104 read with Order 43 Rule 1(U)of the Code of Civil Procedure has been made to the Judgment dated 05.11.2004 passed by the Court of Addl. District Judge, Jhalawar (Raj.) [for short 'the appellate court'] whereby the appellate court while allowing the application filed by the plaintiff-respondent (for short 'the plaintiff') under Order 41 Rule 27 C.P.C. has ordered for quashing and setting aside the Judgment dated 28.11.1997 passed by the Court of Civil Judge (Jr. Division) Khanpur (for short 'the trial Court') and remanded the matter to the trial Court. 2. Facts of the case in nutshell are that the plaintiff filed a civil suit against original defendant Ram Pratap for possession of house, shop and also for payment of Rs. 10,800/- for the use of the said shop and house and payment of Rs. 300/- p.m. from the date of filing of the suit till the date of eviction. Service of notice was effected upon the defendant. On the basis of pleadings of both the parties, trial court framed eight issues. The trial court vide its judgment dated 28.11.1997 dismissed the suit. The plaintiff aggrieved with the impugned judgment preferred an appeal before the appellate court. The appellate court while allowing the application filed by the plaintiff under Order 41 Rule 27 C.P.C. has ordered for quashing and setting aside the Judgment dated 28.11.1997 passed by the trial court remanded the matter to the trial court with a direction to decide the matter afresh on the basis of additional evidence produced by the plaintiff with liberty to the defendants to produce evidence in rebuttal. Aggrieved with the impugned judgment passed by the appellate court, defendants have preferred instant misc. appeal. 3. Learned counsel for the defendants argued that the appellate court erred in allowing the application filed by the plaintiff under Order 41 Rule 27 CPC. The appellate court while passing the impugned order has failed to consider the provisions of Order 41 Rule 28 C.P.C. and erred in remanding the case to the trial court. Learned counsel argued that the order of remand for taking additional evidence and for holding trial de novo is wholly illegal. The appellate court while passing the impugned order has failed to consider the provisions of Order 41 Rule 28 C.P.C. and erred in remanding the case to the trial court. Learned counsel argued that the order of remand for taking additional evidence and for holding trial de novo is wholly illegal. The documents produced by the plaintiff at the time of filing the civil suit were well within his knowledge but intentionally the plaintiff did not file. Thus, the genuineness of the documents is doubtful. The plaintiff has failed to prove that after exercise of due diligence, he could not produce the documents during the course of trial. Learned counsel argued that the plaintiff had sufficient time and opportunity to look for and adduce documentary evidence in the trial court. The appeal was filed before the appellate court on 02.01.1998, whereas the application under Order 41 Rule 27 C.P.C. has been filed after an inordinate delay on 13.02.2004. The aforesaid application was filed by the plaintiff just to fill up the lacuna. Thus, the impugned judgment passed by the appellate court be set aside and the application filed by the plaintiff under Order 41 Rule 27 C.P.C. be dismissed with cost. 4. In support of his submissions, learned counsel has placed reliance upon following judgments: 1. Amar Chand vs. Bhanwar Lal, reported in RLW 1994 (1), p. 285. 2. Mrs. Kiran Kumari and Ors. vs. Hanumant Singh and Ors., reported in WLC 2011 (2), p. 77. 5. Per-contra, learned counsel appearing for the plaintiffs submits that the appellate Court, subsequent to the taking of additional evidence under Order 41 Rule 27 C.P.C. on record, can exercise its power to remand the matter to the trial Court either by way of limited or general remand as may be warranted in the facts of the case. Thus, the impugned judgment passed by the appellate Court warrants no interference. 6. Perused the impugned judgment passed by the first appellate Court. 7. The trial Court dismissed the suit filed by the plaintiff vide judgment dated 28.11.1997. In appeal on 13.02.2004 plaintiff filed an application under Order 41 Rule 27 C.P.C. for taking on record the sale deed dated 18.11.1920 pertaining to the suit land. 8. Indisputably, on the basis of pleadings of the parties, the trial Court framed eight issues for determination of the suit. In appeal on 13.02.2004 plaintiff filed an application under Order 41 Rule 27 C.P.C. for taking on record the sale deed dated 18.11.1920 pertaining to the suit land. 8. Indisputably, on the basis of pleadings of the parties, the trial Court framed eight issues for determination of the suit. After recording evidence of the parties and the documents placed on record, the trial Court vide its judgment dated 28.11.1997 dismissed the suit filed by the plaintiff. The impugned judgment dated 05.11.2004 reveals that the first appellate Court heard the arguments on the appeal as well as on the application under Order 41 Rule 27 C.P.C. simultaneously. The relevant portion of which is reproduced ad infra: ^^eSaus vihy ,oa vihykFkhZ dh vksj ls flfoy ÁfØ;k lafgrk ds vkns'k 41 fu;e 27 ds vUrxZr ÁLrqr gq;s vkosnu i= ij mHk;i{k dh cgl lquhA** Thus, it was open for the first appellate Court, subsequent to the taking of additional evidence under Order 41 Rule 27 C.P.C. to exercise its power to remand the matter to the trial Court either by way of limited or general remand. In the present matter, it cannot be said that without adverting to the merits of the appeal, the appellate Court exercised its power of general remand. As the suit filed by the plaintiff-respondent was dismissed by the trial Court, thus, the inevitable consequence subsequent to allowing the application under Order 41 Rule 27 C.P.C. is that the case has to be remanded and the order of general remand passed by the first appellate Court does not cause any prejudice to the defendants appellants. Needless to say that the defendants appellants would have an opportunity to adduce evidence in rebuttal. 9. In view of the above, I do not find any error in the impugned judgment passed by the first appellate Court. The appeal filed by the defendants appellants is devoid of merit and accordingly stands dismissed. 10. Before parting, it is made clear that this Court has neither touched upon nor expressed any opinion on the merits of the case. The trial Court shall be free to form its own opinion afresh on all questions of fact and law arising for decision in the trial.