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2025 DIGILAW 507 (MP)

Shantilal (Dead) Through Lrs v. Ramesh Chandra

2025-08-18

HIRDESH

body2025
ORDER : The instant misc. appeal under Order 43 Rule 1(u) of CPC has been filed by appellants assailing order of remand dated 26-04-2019 passed by First Additional District Judge, Sironj, District Vidisha in Civil Appeal No.9-A of 2017, whereby the judgment and decree dated 31-01-2017 passed by Civil Judge, Class-II, Lateri, District Vidisha in Civil Suit No. 34-A of 2013, has been reversed and set aside. (2) A few facts necessary for adjudication of this appeal as narrated therein are that plaintiff- respondent No.1 herein filed a civil suit seeking declaration of title and injunction in respect of land bearing survey no. 16 ad-meauring 0.696 hectare and survey no. 100 ad-measuring 1.669 hectare situated in Village Bamori, Tehsil Lateri, District Vidisha. It was pleaded by plaintiff that he has purchased the disputed land vide registered sale deed dated 22-05-2002 from defendant No.1 Shantilal. On 10-09- 2013, when he went to spot to cut his agricultural crop, he found presence of defendants, who gave threat with dire consequences to him if he cuts the crop. (3) Defendants no. 1 and 2 (appellants herein) filed their written statement and pleaded that defendant no.1 has never executed the sale deed in favour of plaintiff and the land in question has been given to father of defendant No.1 by Government on Patta and there is a specific bar contained in Section 165(7-b) of MPLRC that the land cannot be sold. The sale deed has been got executed by means of fraud and without any information, mutation has been made. Hence, prayed for dismissal of civil suit. (4) After hearing pleadings of parties, trial Court framed issued and vide impugned judgment and decree dated 31-01-2017 dismissed the civil suit of the plaintiff holding that the sale deed is void and plaintiff is not in possession of the property and in view of proviso to Section 34 of Specific Relief Act, no declaration can be given in absence of consequential relief of possession. (5) Being dissatisfied with the impugned judgment and decree, plaintiff preferred a Civil Appeal No. 9A of 2017 before the First Appellate Court. During pendency of the appeal, plaintiff also preferred an application under Order 6 Rule 17 of CPC seeking amendment in the plaint in order to incorporate the relief of possession. (5) Being dissatisfied with the impugned judgment and decree, plaintiff preferred a Civil Appeal No. 9A of 2017 before the First Appellate Court. During pendency of the appeal, plaintiff also preferred an application under Order 6 Rule 17 of CPC seeking amendment in the plaint in order to incorporate the relief of possession. Defendants filed their reply to application pleading that no amendment can be allowed to incorporate relief of possession because it was well within the knowledge of plaintiff that he was not in possession and still he has not prayed for relief of possession in trial. Plaintiff also filed an application under Order 41 Rule 27 of CPC for bringing additional documents on record against which defendants filed their reply. The First Appellate Court remanded the matter back to the Trial Court vide impugned judgment dated 26-04-2019 for recording of fresh evidence in view of allowing the application for amendment and for bringing additional evidence on record. (6) Being dissatisfied, the instant misc. appeal has been preferred at the instance of appellants- defendants. (7) It is contended on behalf of appellants- defendants that the First Appellate Court has committed a grave error in allowing the application of plaintiff filed under Order 6 Rule 17 of CPC at the belated stage. In para 22 of the WS, the defendants have specifically deposed that they are in possession of land which has been recorded in pursuance to the order of Naib Tehsildar vide Case No.560-B/121/2009-10. It was obligatory on the party of plaintiff to seek relief of restoration of possession before the Trial Court. Once, the trial Court has given a specific finding that appellants- defendants are in possession of land in dispute which has been admitted by plaintiff himself, then in absence of seeking relief of possession, the suit for declaration is not maintainable and looking to provision to Order 6 Rule 17 of CPC, the amendment application cannot be allowed at such belated stage, especially when the facts pleaded in the application were already in the knowledge of plaintiff. If the plaintiff is not found in possession, then suit is required to be dismissed and no opportunity is required to be granted to plaintiff to cure the fatal defects especially when the civil suit filed by plaintiff has been dismissed on this very ground. If the plaintiff is not found in possession, then suit is required to be dismissed and no opportunity is required to be granted to plaintiff to cure the fatal defects especially when the civil suit filed by plaintiff has been dismissed on this very ground. No reason has been assigned by the plaintiff as to why the documents which the plaintiff sought at the belated stage could not be produced before the Trial Court. The documents which were sought by plaintiff were not at all relevant for the purpose of just decision of appeal. In absence of pleadings, the first Appellate Court could not have allowed the application under Order 41 Rule 27 of CPC. The first appellate Court has committed an error in setting aside the impugned judgment and decree passed by the Trial Court and in remanding the matter back to the Trial Court by exercising power under Order 41 Rule 23 or Rule 23-A of CPC for fresh adjudication without going through the provisions of Order 6 Rule 17 and Order 41 Rule 27 of CPC. Hence, prayed for setting aside the impugned judgment passed by the first appellate Court. In support of contentions, Counsel for appellants has relied on the following judgments:- (i) Rashid Khan vs. State of MP and Others, reported in 2011(3) MPLJ 575 wherein the coordinate Bench of this Court in para 14 has held as under:- '' Plaintiffs cannot change their stand at the stage of first appeal because it will prejudice the respondents and the entire case will be reopened. Where it is apparent that amendment application was filed to fill up the lacuna, the application for amendment under Order 6 Rule 17 of CPC shall be rejected.'' (ii) Munilal vs. Oriental Fire & General Insurance Company Ltd. and Another reported in (1996) 1 SCC 90 , wherein the Hon'ble Apex Court has observed as under:- '' Once suit for mere declaration without seeking consequential relief is dismissed by the Trial Court as being not maintainable under the proviso to Section 34 of the Specific Relief Act, application filed under Order 6 Rule 17 of CPC in appellate Court seeking consequential relief by amendment of pleadings after the suit was barred by limitation during the pendency of the appeal, is not permissible.'' (iii) Municipal Corporation, Hyderabad vs. Sunder Singh reported in (2008) 8 SCC 485 wherein the Hon'ble Apex Court in Para 17 and 18 has observed as under:- ''10. Order XLI Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court. 11. It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order XLI Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.'' (iv) Union of India vs. Ibrahim Uddin and Another reported in (2012) 8 SCC 148 wherein the Hon'ble Apex Court from 36 to 42 has held as under:- ''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. 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 XLI 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, provision does not apply, when on the basis of 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 & Ors., AIR 1963 SC 1526 ; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008 ; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479 ; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553 ). 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 Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798 ). 38. Under Order XLI , Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors. (supra) ]. 39. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 ; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101 ). 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. 41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment. 42. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (sub-rule 2). 42. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (sub-rule 2). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the Court of further appeal to see, if the discretion under this rule has been properly exercised by the Court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the rule.'' (v) Sarnam Singh and Another vs. Gurmej Singh and Others reported in 2019(4) MPLJ 75 wherein the coordinate Bench of this Court has observed in para 17 to 22 as under:- '' Suit by plaintiff for permanent injunction and declaration of title that they are owners of 1/8 th part of land in question. Defendants specifically pleaded in their written statement that plaintiffs are not in possession of property in dispute. Suit was filed without seeking possession. In absence of prayer seeking possession of suit property. Appellant Court rightly reversed judgment and decree passed by trial Court in view of proviso to Section 34 of Specific Relief Act. Appellant rightly allowed appeal and dismissed suit.'' (vi) Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar vs. Chandran and Others reported in AIR 2017 SC 1034 , the Hon'ble Apex Court in para 36 has observed as under:- '' When relief of recovery of possession not claimed in suit for declaration, the suit filed for mere declaration, without relief of recovery of possession is not maintainable.'' (vii) Order dated 23-07-2019 passed by coordinate Bench of this Court in the case of Hariram and Others vs. Pahalwan Singh and Others, Misc. Appeal No. 871 of 2017, wherein it was held as under:- ''Thus, it is apparent from the pleadings itself that plaintiffs possession of the suit land was not withdrawn during pendency of the suit and when objection was taken by the defendants before the trial Court, plaintiff had an opportunity of amending the plaint but plaintiff did not avail that opportunity before the trial Court, and therefore, nu further relief can be granted to the plaintiff without the same having been specifically asked for and in view of such legal position ration of judgment in the case of Kalyan Singh (supra) is in fact against the plaintiffs. Therefore, in the light of the amended provisions contained in Order 6 Rule 17 proviso plaintiff's first appeal was required to show due diligence and also the fact that he could not have raised the subject matter of amendment application before the commencement of trial. In absence of such material available before the first appellate Court, in may opinion, first appellate court clearly erred in allowing the amendment and remanding the matter to the learned trial Court. His order of remand is against the basis spirit of amendment of pleadings as provided under Order 6 Rule 17 CPC and cannot be sustained. The appeal is allowed. Impugned judgment of first appellate court is set- aside. Matter is remanded to the first appellate court to decide the first appeal.'' (8) Relying on the Division Bench decision of this Court in the case of State of MP and Another vs. Adhunik Grih Nirman Sahakari Samiti Maryadit, Gwalior, decided on 4 th of March, 2023 in Writ Appeal No.275 of 2013, order dated 26-09-2014 passed by Coordinate Bench of this Court in the case of Smt. Munni Devi vs. Shanti Kumar and Others , Second Appeal No.1341 of 2005, Coordinate Bench decision of this Court (Principal Seat Jabalpur) in the case of Manraj and Others vs. Malkhan Kachhi and Others, dated 8 th of August, 2023 in Misc.Appeal No. 4886 of 2022, Coordinate Bench decision of this Court (Indore Bench) in the case of Hindu Dharmada Trust Through President Devendra and Others vs. Dinesh Kumar and Others, dated 27 th of November, 2024 in Misc. Appeal No.8928 of 2024, Ganpatlal vs. Ganga Bai and Others dated 31-10-2022 in Second Appeal No.204 of 2002, coordinate Bench decision of this Court (Principal Seat Jabalpur) in the case of Bhikaji vs. Birjlal and Others deceased 14-08-2012 in Writ Petition No. 7898 of 2012 and Coordinate Bench decision of this Court (Gwalior Bench) dated 17-10-2023 in the case of Nihal Singh vs. Savitri Bai and Others, learned Counsel for the respondent No.1 opposed contentions of appellant and supported the impugned judgment passed by first Appellate Court. Hence, prayed for dismissal of this appeal. (9) Heard learned Counsel for the parties. Perused the record. (10) Order 41 Rule 27 of CPC read as under:- ' 'Production of Additional Evidence in Appellate Court- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.'' (11) Order VI Rule 17 of CPC reads as under:- ''Amendment of pleadings - The Court may at any stage of the proceeding sallow either party to alter or amend his pleadings in such manner and on such terms as maybe just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." (12) Order 41 Rule 23 of CPC read as under:- ''Remand of case by Appellate Court- Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, which directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.'' (13) After hearing learned Counsel for the parties and on perusal of entire record, it is clear that the plaintiff has filed a civil suit for declaration of title and injunction and in plaint averments, he pleaded that he was possession holder of the disputed land. On the other hand, the defendants filed their written statements pleading that they are possession holder of the disputed land which has been recorded in pursuance to order of Naib Tahsildar vide Case No.560-B/121/2009-10. The trial Court dismissed the suit on the ground that the plaintiff was not possession holder of the disputed land and no declaration can be given in absence of consequential relief of possession. In appeal, plaintiff filed an application under Order 6 Rule 17 of CPC and submitted that during pendency of suit, defendants took possession of land on 01-10-2018 unauthorizedly and harvested the crops. According to defendants, the plaintiff had not acquired possession of land pursuant to the sale deed, hence, application seeking amendment is out of time as it is after period of 12 years. Plaintiff was evicted from the possession of land on 01-10-2013 during pendency of suit but plaintiff gave his evidence before the trial Court after 01-10-2013 and he had never submitted an application for amendment before the trial Court, therefore, his averments is not so correct. Plaintiff was evicted from the possession of land on 01-10-2013 during pendency of suit but plaintiff gave his evidence before the trial Court after 01-10-2013 and he had never submitted an application for amendment before the trial Court, therefore, his averments is not so correct. It is clear that since initially the defendants are in possession over the disputed land, plaintiff had to file the amendment application seeking consequential relief during pendency of the suit and it is the duty of the Court to give opportunity to the plaintiff seeking consequential relief of possession. Plaintiff had never stated in his averments before the trial Court that the defendants took possession of disputed land on 01-10-2013. The plaintiff was required to show due diligence and he could not have raised subject matter of amendment application before commencement of trial. The order of remand is against the basic spirit of amendment of pleadings as provided under Under Order 6 Rule 17 of CPC and cannot be sustained in the eyes of law. So, in the considered opinion of this Court, the first appellate Court has committed an error in allowing amendment application filed under Order 6 Rule 17 of CPC giving permission to the plaintiff for seeking consequential relief. (14) On bare perusal provisions of Order 41 Rule 27 of CPC,bringing additional evidence should be construed liberally in appellate Court but on perusal of list of documents, it is clear that Khasra copy produced by plaintiff is of year 2012-2013 and not a single line has been pleaded by the plaintiff in his application that he is unable to produce such document earlier due to diligence. So, in the considered opinion of this Court, the first appellate Court has committed an error in allowing the application of plaintiff filed under Order 41 Rule 27 of CPC and remanding the matter to the trial Court for fresh adjudication. (15) The scope and nature of jurisdiction conferred on appellate Court under Order XLI Rule 23 and Order XLI Rule 23A CPC are well settled as observed in the order passed by Coordinate Bench of this Court in the case of Murarilal vs. Ram Kumar Ojha and Another, decided on 20 th of August, 2014 in Misc. (15) The scope and nature of jurisdiction conferred on appellate Court under Order XLI Rule 23 and Order XLI Rule 23A CPC are well settled as observed in the order passed by Coordinate Bench of this Court in the case of Murarilal vs. Ram Kumar Ojha and Another, decided on 20 th of August, 2014 in Misc. Appeal No.788 of 2010 : (2015) MPLJ 243 wherein, it was held that the ingredients of Order XLI Rule 23A CPC are two fold, firstly; the appellate Court upon consideration of the pleadings and material brought on record by way of oral and documentary evidence in the event reaches the conclusion to reverse the findings of the trial Court; only thereafter, and secondly; it has to apply its mind as to whether the circumstances warrant retrial. Upon fulfillment of these two requirements, the provisions of Order XLI Rule 23 CPC can be applied in the matter of remand of the case. (16) In view of foregoing reasons and discussions, the First Appellate Court has, in fact, erroneously exercised the jurisdiction under Order XLI Rule 23 of CPC while ordering remand of the case to the trial Court for fresh adjudication instead of deciding it on merits. Hence, the impugned judgment passed by the first Appellate Court is liable to be and is hereby set aside. It is directed that the First Appellate Court shall decide the appeal on merits after affording due opportunity of hearing to both the parties as expeditiously as possible within a period of six months from the date of receipt of copy of this order. (17) The misc. appeal stands allowed with the aforesaid. No order to as to costs.