^ HIGI-LCOURXOF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble Shri DilipRaosaheb Deshmukh,J. Second Appeal No.263 of 2006 Jeevan Lal and others. versus Visheshar andothers ,;if= JUDGMENT Post for if -08-2008 Sd/- Dilip Raosaheb Deshmukh Judge ^ a HIGH COURT OF CHHATTISGARH AT BILASPUR Single^ench : HorL'ble Shri DJlip RaosahAb Deshmukh,_J, Appellajits Plaintiffs Respondents Defendants Second Appeal No.263 of 2006 " 1. Jeevan Lal, aged about58 years, S/o Udho Vishvakarma 2. Kashiram, aged 64 years, S/o Udho Vishvakarma 3. Ganeshram, aged 20 years, S/o Baabulal 4. Laxminbai, aged 42 years, W/o Late Baabulal 5. Ku. Anita, aged 11 years, D/o Late Baabulal 6. Pradeep Kumar @ Sonu, aged 9 years, S/o Late Baabulal 7. Ku. Kavita, aged 7 years, D/o Late Baabulal Ku. Anita, Pradeep @ Sonu and Ku. Kavita all three minors, represented by their guardian mother Laxminbai W/o late Baabulal Vishvakarma All R/o Juna Bilaspur, near Shanti Lodge Kumbharpara, Tahsil & District Bilaspur (C.G.) versus 1. 2. 3. 4. 5. 6. 7. Visheshar, S/o Paklu, aged 64 years, Maadho, S/o Paklu, aged 52 years Keshav, S/o Paklu, aged 49 years Bhuvan, S/o Paklu, aged 43 years Suvabai, W/o Late Paklu, aged 78 years All five R/o Juna Bilaspur, near Shanti Lodge, Tahsil & District Bilaspur (C.G.) Foolobai, D/o Kanhaya, aged 55 years, R/o Near Shanti Lodge Bilaspur Gulabi, D/o Kanhayalal, W/o Lakshapatilal, Caste ./) Vishvakarma, R/o Locokholi, Bilaspur 8. Gangotribai, D/o Kanhayalal, W/o Ram Narayan, Caste Vishvakarma, R/o Sirgitti, Tahsil & District Bilaspur (C.G.) 9. State of Chhattisgarh, through Collector Bilaspur (C.G.) Second Appeal ynder Sectjon 100 ofthe Code of Civil Procedure Present: Shri R.N.Jha with Shri Manoj Chouhan, counsel for the appellants. Shri Ganesh Prasad Soni with Shri Anand Kumar Gupta, counsel for respondents No.1 to 5. None appears for respondents No.6 to 9 though served. JUDGMENT (Delivered on this ^H. day ofAugust, 2008) In this second appeal by the unsuccessful plaintiffs the following question of law arises for determination: "Whether the lower appellate Court was not right in procedure in deciding the application filed under Order 41 Rule 27 of CPC at the intermediate stage of the appeal on 16.11.2005 and it ought to have decided the same at the time offinal hearing? If yes, then what is the consequence?" (2) Shri R.N.Jha, learned counsel for the appellants/plaintiffs while placing reliapce on Khemchand Mulchand v. Government of Madhya Pradesh, B/iopa/,1972 M.P.L.J 524 submitted at the very outset that he would press the appeal only on the question of law formulated by this Court and on no other ground and would urge that due to the procedural flaw committed by the learned Additional District Judge, Bilaspur, the impugned judgment and decree is liabte to be set aside. The impugned judgment and decree was not assailed on merit. (3) The appellants/plaintiffs had instituted Cjvil Suit No.82-A/2000 before the 9 Civil Judge Class-11, Bilaspur pleading that the suit lands, Kh.No. 53 area 1.53 acres, Kh.No.75 area 3.58 acres, Kh.No.106 area 0.01 decimals, Kh.No.130 area 3.95 acres, Kh.No. 193 area 0.98 acres, Kh.No.286 area 5.76 acres, tota] area 15.99 acres situated in Village Parsada, Patwari Halka No.6, Tahsil Bilha, District Bilaspur were owned and possessed by their ancestor Ramprasad, who died in the year1950. He had three sons towit Paklu, Kanhaiya and Udhoram, who are also dead. The appellants/plaintiffs are thelegal representatives of Udhoram. The respondents/defendants are the legal representatives of Paklu and Kanhaiya. It was pleaded that the suit lands were the joint Hindu family property and the appellants/plaintiffs had 1/3 share therein. Since the appellants/plaintiffs had failed in proceedings initiated before the Revenue Court for partition, they instituted Civil Suit No. 82-A/2000 for declaration of'1/3 share and for partition thereof. A permanent injunction was also sought to restrain the respondents/defendants from interfering with the possession of the appellants/plaintiffs over their 1/3 share inthe suit lands. Respondents/defendants No.6 to 8 being the daughters of Kanhaiya admitted the plaint averments in toto. Respondents No.1 to 5, being the legal representatives of Paklu, resisted the suit on the averment that the suit lands were owned and possessed exclusively by Paklu. The 9 Civil Judge, Class-2, Bilaspur framed as many as nine issues. After recording evidence, it dismissed the suit. Being aggrieved, the appellants/plaintiffs preferred Civil Appeal No.8-A/2005 before the 10th ;ig';'?it^S^i Additional District Judge (F.T.C.), Bilaspur on 04.10.2004. During the pendency of the appeal, an application under Order 41 Rule 27 of the Code of Civil Procedure (henceforth 'the Code) was filed on 27.06.2005 for filing the certified copy of the register of record of rights in which the following entries existed:. srf^R 3rfiT^^sT tf^ft (iiara^r tq? ^^,vts EIRT 1S5 ^ 3|tfrT) •^T.ftx f^T tlg'tfld fG|??T fSlcff tor. ''m 'm? ^t <t>l«l'1*l1 as'tflci 1t?ST M a^<t>*iiq> •m sinrpft ? ft1aT ~epl ^fpf d'fr'tfld ^grer "FfT cl'txTld (1) ^^- Trq^ ^t T?q? vS ^TRR v ^tt ^TRR (3) ^s^ ^? 've ^ ^RR ^iT ? ^luii'i uit ^ai^ t; Wfilvl t (6) 42 0.40 0.162 21.87 ~^\ 1754. 55 ^t u)*1l«l'r^l ^ 3I5HR 1 ^ ?^T ^ fa<^41<i) 2. ^tiTT - '(l*iy'HI< 53 1.53 0.649 3. ciiyilel—^SSff 75 3.58 1.449 4.M-^ 106 0.19 0.077 5. uiiq'i - ^r 130 3.95 1.598 6. ?tf(<a<<i — itm ^ETT 193 0.98 0.397 V. Rdl'd^'i ^PRT^ 286 5.76 2.332 ^TTiT 7 • 16.39 21.87 In the said document, Kh.No.43 area 0.40 acres situated in village Parsada alone was recorded in the name of Paklu, whereas the suit lands were recorded in the name of Kanhaiya and the legal representatives of Udho, i.e., Babulal, Mudhu, Jodhan and Baisakhiya. Instead of deciding the application at the time of hearing the appeal, the learned Additional District Judge heard arguments and dismissed the application on 16.11.2005 on the ground that the appellants/plaintiffs had failed to show that despite due diligence they could not file this document before the lower court. Thereafter, the learned Additional District Judge heard final arguments and dismissed the appeal by the impugned judgment and decree (4) Submissions of Shri R.N.Jha, learned counsel for the appellants/plaintiffs and Shri Ganesh Prasad Soni, learned counsel for respondents No.1 to 5/defendants were heard at length. Record is perused. (5) Order 41 Rule 27 of the Code reads as under: 0.41 R.27: "Production of additional evidence in Appellate Court.—(1)The parties to an appeal shall not be entitled to produce additional evidence, whether oral or doeumentary, 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 ..gSSSESi-^,^ >> ^.'p" 1>^ .^ '"•"^•I?-1-'' .••s^y' diligence, be produced by him at the time when the decree appealed againstwas passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it td 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." (6) The provision contained in sub-clause (1) (aa) was introduced by Section 87 of the Amending Act No.104 of 1976 w.e.f. 1.2.1977. A plain reading of the above provision shows that clauses (a), (aa) and (b) of sub- rule (1) of Rule 27 of Order 41 of the Code carve out exceptions to the general rule that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate stage. The case of Khemchand Mulchand (supra) cited by the learned counsel for the appellants/plaintiffs pertains to the period prior to the amendment and in that case pending an appeal a revision was filed in the High Court against an interlocutory order refusing an application under Order 41 Rule 27 of the Code passed by the lower Appellate Court. The present case is distinguishable because the appeal has also been decided and the impugned judgment and decree is not being challenged on merit in this appeal. (7) Shri R.N.Jha, learned counsel for the appellants/plaintiffs did not dispute that before the trial Court the appellants/plaintiffs did not file any document to show that the suit property was ever recorded in the name of i^ Ramprasad. Learned counsel submitted that clause (aa) of sub-rule (1) of Rule 27 of Order 41 of the Code applies to the present case. Under this clause, the party seeking to produce additional evidence at the appellate stage has to establish 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. Therefore, the application under Order41 Rule 27 of the Code has tosatisfy the touchstone of clause (aa) of sub- rule (1) of Rule27 of Order 41 of the Code. In the instant case, the application under Order 41 Rule 27 of the Code was not supported by an affidavit and did not show that the appellants/plaintiffs could not, notwithstandingexercise of due diligence, produce the document before the lower Court. The application under Order 41 Rule 27 of the Code merely says that after changing a new counsel a copy of the register of reeord of rights was obtained on his advice. The copy of the register of record of rights also shows that it was obtained on 16.06.2005, i.e., few days before the filing of the application under Order 41 Rule 27 of the Code. Thus, the grQund under clause (aa) of sub-rule (1) of Rule 27 of Order 41 of the Code is not established from the application filed by the appellants/plaintiffs. (8) Learned counsel for the appellants/plaintiffs next contended that the lower Appellate Court ought to have, in exercise of the discretion vested in it by sub-rule (1) pfclause '(b) of Rule 27 of Order 41 of the Code, admitted the document for doing complete justice between the parties. It is true that if the document was a vital document touching the merit of the case and was necessary to be taken on record for doing 1 complete justice between the parties, the lower Appellate Court had jurisdiction to do so under clause (b) of sub-rule (1) of Rule 27 of Order 41 of the Code. Viewed from this perspective, a perusal of the document shows that Khasra No.43 alone, which does not form part of the suit lands, was recorded in the name of Paklu. A perusal of the Khasra Panchshala, Ex.P.1 and P.2 filed before the trial Court shows that there is no entry regarding Khasra No.43. In this manner, the copy of the register of the record of rights was of no assistance in throwing light on the controversy in the suit and did not help the legal representatives of Paklu in any manner. In this view of the matter, filing of the document towit copy of the register of record of rights was neither of any avail to the appellants/plaintiffs nor necessary for doing complete justice between the parties. The learned Additional District Judge did commit a procedural error in not considering the application under Order 41 Rule 27 of the C.P.C. at the time of final hearing of appeal on merits because it is only at the time of hearing the appeal on merits that the appellate Court would be in a position to comprehend whether exercise of powers under clause (b) of sub-rule (1) of Rule 27 of Order 41 of the CPC should be exercised in taking document sought to be produced at the appellate stage, on record. Therefore, lower Appellate Court ought to have first heard the appeal on merit before deciding whether the application for productionof additional evidence should or should not be allowed. (9) For the reasons afpresaid, I am of the considered opinion that in the facts and circumstances although rejection of the application under Order 41 Rule 27 of the Code by the learned 10th Additional District Judge (F.T.C.), Bilaspur suffers from a procedural flaw, filing of the document ^ Gopal towit copy of the register of record of rights was neither of any avail to the appellants/plaintiffs nor necessary for doing complete justice between the parties so as to call for the exercise of discretion vested in the lower Appellate Court under sub-clause (b) of Rule 27 of Order41 ofthe Code. The impugned judgment and decree, therefore, does not call for any interference. Since no other ground was urged, this appeal must, therefore, fail and is accordingly dismissed. The parties shall bear their owncosts. . f , Sd/-_ ^ ^j ^ DUip Raosaheb Deshinukh^ ' Judge 'k l^ ?