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2023 DIGILAW 695 (MP)

Banti @ Brijesh Pasi v. Sandhya Pasi

2023-08-11

AVANINDRA KUMAR SINGH

body2023
ORDER 1. This miscellaneous appeal has been filed against the judgment and decree dated 5.3.2021 passed by learned District Judge, Jabalpur in RCA No. 13/2019 Smt. Sandhya Pasi v. Banti @ Brijesh Pasi and others. 2. The facts of the case are that appellant/plaintiff had filed a civil suit for partition of suit property situated at Mauja Ranipur, No. B. 401, Patwari Halka No. 25, admeasuring 4310 square feet, Khasra No. 82/2, District Jabalpur. 3. The learned Civil Judge at Jabalpur vide Annexure A-6 judgment dated 3.12.2018 decreed the suit by directing that the plaintiff was entitled to 1/5 portion of the suit property and he is entitled to get the suit property divided and obtain the possession of the same. 4. Appellant submits that respondent No. 1 Smt. Sandhya filed an application under Order 41 rule 27 of C.P.C. New grounds were set up, the present appellant opposed the application under Order 41 rule 27 of CPC that no one can be permitted to take advantage of her or his mistake but the learned Ist appellant Court Jabalpur by judgment dated 5.3.2021 remanded the case for recording of the evidence on the issue framed by the Appellate Court which is under challenge in this appeal before this Court. 5. The grounds of the appellant is that the judgment of the learned Ist Appellate Court is wrong. Court should not have framed additional issue and remanded the case for recording of evidence. When the learned lower court in judgment dated 3.12.2018 had already considered all facts, the Ist Appellate court also failed to notice that when application under order 41 rule 27 CPC was dismissed by him because Will is on record of trial Court, then the case cannot be remanded. Lacuna cannot be filled. On these points the learned counsel for the appellant has relied on the case of State of U.P. v. Manbodhan Lal Shrivastava AIR 1957 SC 912 , (Constitutional Bench) and Dineshchandra v. Kamlabai, [ 1997(1) mpwn 78 ]. Hence, prayer to set aside the judgment and decree dated 5.3.2021 and confirm the judgment of the trial Court dated 3.12.2018. 6. The learned counsel for the respondents supports the order of the Ist Appellate Court. 7. The question before this court is whether the judgment and decree of the learned 1st Appellate Court dated 3.12.2018 is sustainable in the facts and circumstances of the case. 8. 6. The learned counsel for the respondents supports the order of the Ist Appellate Court. 7. The question before this court is whether the judgment and decree of the learned 1st Appellate Court dated 3.12.2018 is sustainable in the facts and circumstances of the case. 8. This court has gone through the record of both the Courts below. It is evident that both the parties are members of the same family. The learned 1st Appellate Court in Para 12 of the judgment has specifically mentioned that the defendant No. 2 in her written statement in paragraph Nos. 3 and 4 had averred that she had become the owner of the suit property by virtue of the registered Will dated 7.7.2012, then specific issue should have been framed on this point but the learned trial Court did not frame the specific issue regarding Will. The learned Appellate Court in para 10 has referred to the judgment of Hon’ble the High Court Dineshchandra v. Kamlabai, (Supra) and in para 12 of the judgment of the apex Court in State of UP v. Manbodhan Lal Shrivastava (Supra) by analyzing the facts of the case and pleading in that regard and in para 14 has clearly mentioned that the defendant had cross- examined the plaintiff in respect of execution of will, therefore, found no filing of lacuna. In para 15 it is further held that it is a registered Will and it cannot be said that a forged document has been created. The document was already on record of the trial Court and held in para 15 that it was the duty of the counsel to at least advise the client, the illiterate client are not aware with the technicality of the law and that she has to produce the original Will and examine witness and prove the Will. It has been specifically observed that the learned counsel did not do the professional duty in this regard and no party should suffer due to mistake of the counsel. In para 16 the learned 1st Appellate Court has specifically mentioned that to do justice in the case additional contents is required and accordingly framed this issue: ^^D;k e`rd iq"ik iklh }kjk fnukad 7-7-22012 d¨ çfroknh Øekad 2 laè;k iklh d¢ i{k esa iathÑr olh;r }kjk oknxzLr laifÙk d¨ fn;k Fkk\ çÒko\** 9. In para 16 the learned 1st Appellate Court has specifically mentioned that to do justice in the case additional contents is required and accordingly framed this issue: ^^D;k e`rd iq"ik iklh }kjk fnukad 7-7-22012 d¨ çfroknh Øekad 2 laè;k iklh d¢ i{k esa iathÑr olh;r }kjk oknxzLr laifÙk d¨ fn;k Fkk\ çÒko\** 9. Looking to the facts, situation and law on this point and considering the judgment of learned Ist Appellant Court, this Court finds that when the registered Will was already on record, then giving a chance to prove the registered Will cannot be turned as filling of lacuna by the respondent Smt. Sandhya Pasi. This court is also of the view that no prejudice will be caused to the appellant before trial Court, if a chance has been given to the other party, it is well settle that a chance to adduce evidence is one thing but to prove a document is another aspect. 10. In the case cited by the counsel for appellant, State of UP v. Manbodhan Lal Shrivastava (supra) in Para 3, Hon’ble Constitution Bench of the Supreme Court has not totally prohibited filing of additional evidence in the Appellate Court. The Hon’ble Supreme Court has laid down that normally at appellate stage, additional evidence should not be taken up but “of course, the position is different where the appellate Court itself requires certain evidence to be adduced in order to enable it to do justice between the parties”. 11. Hence this Court is of the view that it cannot be said that the remanding of the case by framing an additional issue in the matter by the Ist appellate Court was bad in law or beyond the jurisdiction of the learned Ist Appellate Court. Hence, there is no ground to interfere in the judgment and decree dated 5.3.2018 passed by the learned Ist Appellate Court. Hence, this Miscellaneous Appeal is devoid of any merit and accordingly dismissed. 12. Let the record of the concerned Courts be sent back along with copy of this order for further proceedings as per law.