Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 131 (ALL)

Shiv Nandan v. District Judge Unnao

2024-01-11

ALOK MATHUR

body2024
JUDGMENT : 1. Heard Sri Mohd Saeed, learned counsel for the petitioners, learned Standing counsel for respondent No. 1 and Sri R. K. S. Chauhan for respondent No.s 2 to 5. 2. By means of the present writ petition the petitioner has challenged the order dated 25.8.1999 passed by District Judge, Unnao on the application for taking additional evidence under Order 41 Rule 27 preferred by the petitioner in the appeal filed by him against rejection of the application under Order 39 Rule 1 and 2 of CPC. 3. The facts in brief are that the petitioner on 2.9.1995 had filed a suit for permanent injunction against opposite party Nos. 2 to 5 before Civil Judge (Junior Division), Purwa, Unnao. The said suit was filed by the petitioners on the basis of title wherein it was asserted that Sukhdei had sold the disputed property to Shiv Nandan, the predecessor to interest of the petitioner. Along with the plaint the petitioner had moved an application under Order 39, Rule 1 and 2 seeking to restrain the private respondents from interference in peaceful possession of the petitioner's property. In the plaint the petitioners had claimed possession on the basis of unregistered sale deed entered between Sukhdei and the petitioners. Learned trial court by detailed order rejected the application of the petitioner by means of order dated 3.9.1998. 4. Aggrieved by the order rejecting the application of the petitioner under Order 39 Rule 1 & 2 on 7.9.1998 the petitioner had preferred an appeal before the District Judge. During pendency of the said appeal the petitioner and Sukhdei got the sale deed registered with regard to the disputed property on 20.8.1999 which was registered on the same day. The registered sale deed was sought to be placed on record before the appellate court by means of an application filed by the petitioner under Order 41 Rule 27. The respondents had objected to the said amendment on the ground that it will change the basis of the suit which was filed on the basis of an unregistered sale deed and even the trial court while rejecting the application of the petitioner under Order 39, Rule 1 and 2 had recorded a finding that immovable property could not be transferred on the basis of an unregistered sale deed. 5. 5. District Judge, Unnao by means of the impugned order dated 25.8.1999 has rejected the application under Order 41 Rule 27 on the ground that permitting the petitioner to place the said sale deed on record as evidence would change the basis of the said suit and the appellate court did not find any justification to take the document at the appellate stage as the trial court was also deprived of taking the benefit of the said document while deciding the application under Order 39, Rule 1 and 2 and upon this ground alone he has rejected the application. 6. Learned counsel for the petitioner has submitted that the said sale deed could not have been filed along with the suit as the same was registered only after filing of the suit and also after passing the order under Order 39, Rule 1 and 2. It is only at the stage when the appeal against the rejection order of interim injunction was pending the said sale deed was made available and consequently an application under Order 41, Rule 1 and 2 was filed. 7. Ordinarily, an application for grant of interim injunction is decided on the basis of affidavits and the material documents produced along with the said application without waiting for the evidence which is to be adduced at the relevant stage. Therefore, any relevant document which may have been left out from production initially can be brought on record subsequently with a leave of the court provided it is found that the material for the purpose of effective adjudication of the injunction case. Such material can also be produced in the miscellaneous appeal preferred against the order of the trial court refusing or allowing interim injunction. 8. The Supreme Court considered the aforesaid proposition in the case of Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC where it was held:- 29. Under Order 41 Rule 27 CPC, production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are: (I) where the trial court had refused to admit the evidence though it ought to have been admitted; (II) the evidence was not available to the party despite exercise of due diligence; and (III) the appellate court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature. An application for production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, the court can receive additional documents. 30. In Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362, this Court held as under : (SCC pp. 167-68 & 170, paras 36-37, 40 & 47) "36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot 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., Greater Bombay v. Lala Pancham, AIR 1965 SC 1008 , Soonda Ram v. Rameshwarlal, (1975) 3 SCC 698 and Syed Abdul Khader v. Rami Reddy, (1979) 2 SCC 601 ]) 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 & Co., (1978) 2 SCC 493 ].) ....... 40. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali & Co., (1978) 2 SCC 493 ].) ....... 40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. .... 47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed." 9. Considering the facts of this case in light of the aforesaid judgment of the Supreme Court, it is evident that the registered sale deed was not available at the time of filing of the suit, and undoubtedly it is a material document to be considered for determining the title of the disputed property and consequently has bearing on the outcome of the said suit, and hence the application for taking on record additional evidence ought to have been allowed. Further, the reasoning given by the trial court that it would change the basis of the suit is also incorrect. In the present case, the suit proceedings are still pending and it is open for the petitioner/plaintiff to file his evidence at the proper stage before the trial court and once that evidence is filed the trial court would necessarily have to look into the said evidence at the relevant stage. Moreover, the basis of the suit would remain same, as in the plaint unless the same is also amended. Merely filing of a document cannot be said to change the nature of the suit. Moreover, the basis of the suit would remain same, as in the plaint unless the same is also amended. Merely filing of a document cannot be said to change the nature of the suit. There is no doubt that a registered sale deed is necessary piece of evidence to establish the title and once it is clear that the said document was not available at the time of disposal of the application under Order 39 Rule 1 and 2 and the same could not have been filed before the trial court at the proper stage, then there would not be any infirmity of filing the same before the appellate court. I do not find the reason assigned by the appellate court to be proper and correct for rejecting the application preferred by the petitioner for taking on record the sale deed. Merely because the same was not filed before the trial court is no ground for rejecting the application of the petitioner. It is always open for the appellate court to remand the matter back in case some material fact comes to the knowledge at the appellate stage which it feels has to be considered by the trial court first, but this fact itself would not justify rejection of the application under Order 41 Rule 27. 10. In light of the above, this Court is of the considered opinion that the order of the appellate court dated 25.8.1999 is arbitrary and cannot be sustained. The application under Order 41 Rule 27 of the petitioner stands allowed. The impugned order dated 25/08/1999 is set aside and the District Judge, Unnao is directed to consider and pass appropriate orders on the application/appeal of the petitioner with expedition in accordance with law. 11. The writ petition thus stands allowed.