JUDGMENT : 1. Heard Mr. Ayush Aditya, the learned counsel appearing for the appellants and Mr. M.K. Laik, the learned Senior counsel appearing on behalf of the respondents. 2. This second appeal has been filed being dissatisfied with the judgment dated 15.02.2006 and following thereupon the decree signed on 01.03.2006 passed by learned District Judge, passed in Title Appeal No.44 of 2004 whereby the learned appellate court has dismissed the appeal and affirmed the judgment dated 20.09.2004 and decree dated 04.10.2004 passed by the learned Munsif, Hazaribagh in Title Suit No.112 of 2001. 3. The Title Suit No.112 of 2001 was instituted by the respondents/ plaintiffs for declaration of right, title and interest and for possession in respect of the land appertaining to Holding No.248-A, New Municipal Holding No.183/125, New Ward No.16, situated in Mohalla Boddom Bazar, morefully described in schedule-?A? to the foot of the plaint (suit land in short). The plaintiffs have further sought an injunction besides an award of cost of the suit. The suit was decreed in favour of the plaintiff. 4. Aggrieved with this, the appellants filed the Title Appeal No.44 of 2004 which was dismissed by the judgment dated 15.02.2006 affirming the judgment of the learned trial court dated 20.09.2004. Aggrieved with this, the present second appeal has been filed. 5. The plaintiffs’ case is that the suit property described in scheduled ‘A’ of the plaint originally belonged to Hazaribagh Municipality in the year 1924. The grandfather of the plaintiffs namely Mathura Sao had taken permanent settlement of schedule ‘A’ property from Hazaribagh Municipality by terms of a registered deed bearing No.709 dated 04.04.1924. Thereafter, the grandfather of the plaintiffs constructed a residential house and continued in possession thereof on payment of rent to the Municipality till his lifetime. Upon his death, his son Kanhai Sao and the plaintiffs being legal heirs of Mathura Sao came and continued in possession. Kanhai Sao died in the year 1974 leaving behind the plaintiffs. 6. However, suddenly on 14.11.2001 the defendants along with their men came over the Schedule ‘A’ properties and attempted to take forcibly possession by evicting the plaintiffs therefrom. However, on resistance on the part of the plaintiffs, the situation was avoided but the defendants gave a threatening that they need the house for opening a club for Gupta caste and, therefore, they will take forcible possession. 7. However, on resistance on the part of the plaintiffs, the situation was avoided but the defendants gave a threatening that they need the house for opening a club for Gupta caste and, therefore, they will take forcible possession. 7. Under the aforesaid circumstances, the suit was filed for the reliefs aforementioned. 8. That the suit was admitted on 29.11.2001 and thereafter the defendants appeared in the suit on 20.12.2001. 9. However, by order dated 30.01.2003 the defendants were debarred from filing written statement on the ground that no written statement was filed within time fixed in view of Order-VIII, Rule-1 of the Code of Civil Procedure which was held to be mandatory. 10. The defendants/appellants were debarred from filing written statement in the suit by the order dated 30.01.2003 against the order, the appellants/defendants preferred Civil Revision before this Court which was numbered as Civil Revision No.61 of 2004 which was dismissed on 20.05.2004 with liberty to take all the grounds under section 105 of the C.P.C. Pursuant thereto, the appeal was filed after the decree passed by the learned trial court. 11. This second appeal was admitted by the order dated 04.08.2009 on the following substantial question of law : (i) Whether the judgment and decree of the first appellate Court is vitiated in law for not considering the points raised by the defendants-appellants which was permitted by the High Court while dismissing the writ petition being W.P.(C) No.4185 of 2004? (ii) Whether the Court of Appeal below has correctly appreciated the provision of Section 105 C.P.C? (iii) Whether the Court of Appeal below has failed to exercise its jurisdiction by rejecting the prayer of the defendants to recall the order of trial Court debarring them from filing written statement? 12. Mr. Ayush Aditya, the learned counsel appearing on behalf of the appellants submits that for the reasons assigned, the appellants/defendants has not been able to file the written statement. Although, the Order VIII Rule-1 of the C.P.C. is not mandatory and it is directory as it is held by the several judgments of the Hon’ble Supreme Court as well as the High Court. He further submits that that the liberty was provided by the High Court in Civil Revision to take all the grounds under section 105 C.P.C., it was incumbent upon the appellate court to give the finding on the documents provided by the appellants/defendants. He further submits that that the liberty was provided by the High Court in Civil Revision to take all the grounds under section 105 C.P.C., it was incumbent upon the appellate court to give the finding on the documents provided by the appellants/defendants. He submits that no finding has been provided by the learned appellate court inspite of the liberty provided by the High Court. He submits that the petition to that effect has already been filed before the learned trial court on 28.07.2004, however, the learned trial court as well as the learned appellate court have not looked into those documents which are the public documents and those documents establish the fact that there were earlier round of litigation between the father of the present plaintiffs and the vendor of the defendants-namely Smt. Sumitra Devi and Kanhai Sao. He submits that the suit filed by the ancestor has already been dismissed and the litigation has come to an end and suppressing all those facts, the suit was instituted which amounts to making fraud upon the court. He draws the attention of the Court, to section 40 of the Indian Evidence Act, 1872 and submits that when there is previous judgment relevant to bar the second suit or trial. According to him, when there earlier round of litigation between the ancestors of the parties, this suit itself was not maintainable. He further refers to section 44 of the Indian Evidence Act, 1872 and submits that the certified copy of the order dated 23.08.2004 passed by the High Court in S.A. No.13 of 1984(R), certified copy of judgment and decree passed in Title Suit No.36 of 1972 and certified copy of the judgment and decree passed in Title Appeal No.7/81/2/82 and C.C. of the order passed by Executive Officer, Hazaribagh Municipality in Case No.111/M/85-86 dated 5.11.1985 were brought on record by way of filing the petition and those documents were not disclosed by the respondents/plaintiffs which amounts to making fraud in light of section 144 of the Indian Evidence Act, 1872 and to buttress his argument, he relied in the case of “ Ram Kumar V. The State of Uttar Pradesh & Others”, reported in 2022 LiveLaw (SC) 806 and relied on paragraph no.21 of the said judgment which is quoted hereinbelow: “21. This Court, in the case of S.P. Chengalvaraya Naidu (Dead) By LRs. Vs. This Court, in the case of S.P. Chengalvaraya Naidu (Dead) By LRs. Vs. Jagannath (Dead) by LRs and others has held that non-disclosure of the relevant and material documents with a view to obtain an undue advantage would amount to fraud. It has been held that the judgment or decree obtained by fraud is to be treated as a nullity. We find that respondent No.9 has not only suppressed a material fact but has also tried to mislead the High Court. On this ground also, the present appeal deserves to be allowed.” 13. On the point of Order VIII Rule-1 of the C.P.C which is not mandatory and is directory in nature, he relied in the case of “Kailash v. Nanhku & Others”, reported in (2005) 4 SCC 480 . Paragraph nos.23 and 46 of the said judgment are quoted below: “23. This leads us to examine the alternative contention of the learned Senior Counsel for the appellant that, in any event, Order 8 Rule 1 CPC is not mandatory but directory in nature, a submission on which both the learned counsel for the parties have forcefully argued and the learned amicus curiae has also made detailed submissions. 46. We sum up and briefly state our conclusions as under: (i) The trial of an election petition commences from the date of the receipt of the election petition by the court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time (as far as practicable and without sacrificing the expediency and interests of justice) includes power to adjourn the hearing in an election petition, affording opportunity to the defendant to file a written statement. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and rules made for purposes of that Act and a resort to the provisions of CPC is not called for. (ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. (ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines. (iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the rules of procedure contained in CPC on the other hand, the former shall prevail over the latter. (iv) The purpose of providing the time schedule for filing the written statement under Order 8 Rule 1 CPC is to expedite and not to scuttle the hearing. The provision spells out a disability on the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away. (v) Though Order 8 Rule 1 CPC is a part of procedural law and hence directory, keeping in view the need for expeditious trial of civil causes which persuaded Parliament to enact the provision in its present form, it is held that ordinarily the time schedule contained in the provision is to be followed as a rule and departure therefrom would be by way of exception. A prayer for extension of time made by the defendant shall not be granted just as a matter of routine and merely for the asking, more so when the period of 90 days has expired. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. Extension of time may be allowed by way of an exception, for reasons to be assigned by the defendant and also be placed on record in writing, howsoever briefly, by the court on its being satisfied. Extension of time may be allowed if it is needed to be given for circumstances which are exceptional, occasioned by reasons beyond the control of the defendant and grave injustice would be occasioned if the time was not extended. Costs may be imposed and affidavit or documents in support of the grounds pleaded by the defendant for extension of time may be demanded, depending on the facts and circumstances of a given case. 14. He further relied in the cases of “Rajinder Tiwari v. Kedar Nath (Deceased) Through Legal Representative and Others” reported in (2019) 14 SCC 286 . Paragraph no.11, 11.1, 11.2., 11.3 and 11.4 of the said judgment are quoted below: “11. In our considered opinion, the need to remand the case to the Senior Civil Judge for trying the civil suit afresh on merits has occasioned for more than one reason. 11.1 First, we find that the trial in the suit has not been done satisfactorily inasmuch as the defendant was not afforded an adequate opportunity to file his written statement. 11.2 Second, in the absence of any written statement, the defendant could neither adduce proper evidence nor file any documentary evidence in support of his case. 11.3 Third, the rights of the parties were, therefore, decided by the two courts (trial court and first appellate court) by decreeing the suit and the High Court by dismissing the suit on the basis of insufficient evidence. In our view, it caused prejudice to both the parties. 11.4 Fourth, we do not find any justifiable reason to deny the defendant of his right to file the written statement. He was entitled to file the written statement and to adduce oral and documentary evidence for contesting the suit on merits.” 15. Relying on these judgments, he submits that although there is concurrent finding of the learned courts since these public documents were not looked into, the Court may answer the law point framed by this Court in favour of the appellants. Relying on these judgments, he submits that although there is concurrent finding of the learned courts since these public documents were not looked into, the Court may answer the law point framed by this Court in favour of the appellants. He further submits that in light of section 74 of the Indian Evidence Act, 1872, the documents which are certified copy of the judgments are public documents, it was incumbent upon to be considered by the learned courts and both the learned courts have not appreciated it, even assuming that, when the appellants/defendants were debarred from filing the written statement, on this ground, he submits that the second appeal is fit to be allowed. 16. On the other hand, Mr. Laik, the learned Senior counsel appearing on behalf of the respondents took the Court to the judgment of the learned trial court and submits that the learned trial court after going through the exhibits as well as the witnesses examined on behalf of the plaintiffs has rightly decreed the suit in favour of the plaintiffs by the judgment dated 20.09.2004 and there is no illegality in the learned trial court?s judgment. He further submits that the learned appellate court has discussed in its entirety the facts as well as weigh the appreciation made by the learned trial court and has rightly concluded that the appellant/defendants have failed to make out the case. 17. In view of the above submissions of the learned counsels appearing on behalf of the parties, the Court has gone through the judgments of the learned trial court as well as the learned appellate court including the Lower Court Records. It is an admitted fact that the appellant/defendants were debarred from filing the written statement. However, in the civil revision, a liberty was provided to raise all the points under section 105 C.P.C and the decree is passed against the appellants/defendants. Once the liberty was provided by the High Court to raise all the points under section 105 C.P.C it was incumbent upon the learned trial court atleast to give the finding upon the documents which have been brought on record by way of filing the petition by the appellants/defendants which are in nature of public document. Once the liberty was provided by the High Court to raise all the points under section 105 C.P.C it was incumbent upon the learned trial court atleast to give the finding upon the documents which have been brought on record by way of filing the petition by the appellants/defendants which are in nature of public document. The documents are certified copy of the order dated 23.08.2004 passed by the High Court in S.A. No.13 of 1984(R), certified copy of judgment and decree passed in Title Suit No.36 of 1972 and certified copy of the judgment and decree passed in Title Appeal No.7 /81/2/82 and C.C. of the order passed by Executive Officer, Hazaribagh Municipality in Case No.111/M/85-86 dated 5.11.1985, and these documents are public in nature in view of section 74 of the Indian Evidence Act, and in that view of the matter, even in absence of any written statement that those documents were required to be dealt with by the learned appellate court, particularly, considering that a liberty was provided by the High Court to raise all the grounds under section 105 C.P.C., the learned appellate court has failed to do that. Title Suit No.36 of 1972 was instituted by Smt. Sumitra Devi against the defendant namely Smt. Vimla Devi and others in which Kanhai Saw was one of the defendants in that suit and the suit was filed for putting the plaintiffs in Khas possession of the land in question. The suit was dismissed by the judgment dated 23.12.1980, against that Title Appeal No.7/81/2 of 1982 was preferred by Smt. Sumitra Devi and by judgment dated 26.9.1983 the suit was decreed holding that Kanhai Saw was the tenant and he has already sold his land to Smt. Sumitra Devi against that second appeal was preferred before the High Court, being S.A. No.13 of 1984(R), and it was dismissed on 20.03.1984. In view of this development with regard to the property in question those documents were the public documents are required to be dealt with by the learned trial court particularly considering the liberty or the observation by the High Court in Civil Revision No.61 of 2004 which has not been done in the case in hand. 18. In view of this development with regard to the property in question those documents were the public documents are required to be dealt with by the learned trial court particularly considering the liberty or the observation by the High Court in Civil Revision No.61 of 2004 which has not been done in the case in hand. 18. Thus, if the suit property was already agitated in the earlier round of litigation up to the High Court in second appeal, on that ground itself, section 40 of the Indian Evidence Act is attracted. Admittedly, these are the certified copies of the court’s judgments and those documents are public in nature and in light of section 74 of the Indian Evidence Act, 1872, if suppressing all these documents the suit was filed and was agitated provision of section 44 of the Indian Evidence Act, 1872 is not ruled out. Non-disclosure of the relevant material and documents with a view to obtain undue advantage has been considered by the Hon’ble Supreme Court in the case of Ram Kumar V. The State of Uttar Pradesh(supra). 19. In view of the above facts, reasons and analysis, the Court comes to the conclusion that non considering the points raised by the defendants who is the appellants herein particularly considering the order dated 20.05.2004 passed in Civil Revision No. No.61 of 2004, the learned appellate court judgment is vitiated in law. The learned appellate court has failed to appreciate the provisions of section 105 of the C.P.C. and considering the judgment of Hon’ble Supreme Court in the case of “Kailash v. Nanhku” (2005) 4 SCC 480 , the appellate court’s reasons are not justified. Accordingly, the law points framed by this Court vide order dated 04.08.2009 are answered. The Court comes to the conclusion that this is a case where the suit has not been done satisfactorily, considering that defendants were not provided opportunity to defend, particularly considering that it is settled law that all contesting party in suit must get fair opportunity to contest the suit on merits in accordance with law and when the decision of the courts found to be unsatisfactory, that too, in civil suit, that will not sustain in the eye of law. 20. 20. Accordingly, judgment dated 15.02.2006 passed in Title Appeal No.44 of 2004 and judgment dated 20.09.2004 in Title Suit No.112 of 2001 passed by the learned appellate court as well as by the learned trial court, respectively, are set aside. 21. In view of the above, the Court comes to the conclusion that this is a case of remand of the matter in light of Order XLI Rule 23 of the C.P.C. 22. Accordingly, the matter is remanded back to the learned concerned trial court. 23. The parties are directed to appear before the learned trial court concerned on 01.03.2023. 24. The learned trial court after providing opportunity to all the parties, will decide the matter afresh in accordance with law. 25. With above observation and direction, Second Appeal No.129 of 2006 stands disposed of. 26. Let the L.C.R. be sent back to the concerned learned court forthwith. 27. Pending petition, if any, also stands disposed of.