SAO No. 62 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH SAO No. 62 of 2011 (O&M) Date of decision : 22.9.2011 ... Major Singh and another ................Appellants vs. Ram Kumar .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Sherry K. Singla, Advocate for the appellants. ... K.C. Puri, J. Challenge in this appeal is to the judgment dated 23.8.2011 passed by Sh. Dilbagh Singh Johal, Additional District Judge, Bathinda, vide which the appeal preferred by the plaintiff against the judgment dated 5.8.2009 passed by Sh. K.K. Singla, PCS, Additional Civil Judge (Senior Division), Bathinda, was accepted and the case was remanded back for fresh decision. Briefly stated, the plaintiff filed suit under Order 37 CPC for recovery of ` 5,50,000/- alongwith interest. It is alleged that plaintiff is sole proprietor of M/s Harcharan Dass Ram Kumar, Raman Mandi. On 8.10.2004 both the defendants came to the shop of plaintiff and borrowed a sum of ` 5,50,000/- from the plaintiff and executed pronote and receipt in favour of the plaintiff. After receiving the SAO No. 62 of 2011 -2- amount of ` 5,50,000/-, the said amount has not been paid. Hence the suit. On put to notice, defendants filed written statement contesting the claim of the plaintiff. Defendants have taken legal objections that the suit is not maintainable; that plaintiff has no cause of action or locus standi to file the suit; that no consideration amount has ever been passed. There is material alteration in the pronote and receipt. The plaintiff is a money lender and have no money lending licence. The answering defendants are protected by the Small Farmers Indebtedness Act. On merits, it is admitted that Ram Kumar is the sole proprietor of M/s Harcharan Singh Ram Kumar. The factum of borrowing ` 5,50,000/- and execution of pronote was totally denied. It is pleaded that defendants used to sell their crop through commission agency of plaintiff M/s Harcharan Dass Ram Kumar, Raman Mandi and in that context plaintiff might have got signatures of defendants on blank papers and printed forms and committed fraud. Replication was filed denying the contents of written statement and reiterating the stand taken in the plaint. From the pleadings of the parties, following issues were framed on 15.2.2006:- 1. Whether the plaintiff is entitled to recover a sum of ` 6,15,000/- on the basis of pronote and receipt dated 8.10.2004, if so to what extent and at what rate of interest? OPP. 2. Whether the suit is not maintainable in the present form? SAO No. 62 of 2011 -3- OPD 3. Whether the alleged pronote and receipt are forged and fabricated, materially altered, without consideration as alleged? OPD 4. Whether the plaintiff is doing the money lending business without having valid money lending licence. If so, its effect?OPD 5. Relief. In order to prove his case, the plaintiff examined PW-1 Davinder Kumar and PW-2 Jagdish Kumar. Plaintiff himself appeared as PW-3 and closed the evidence. On the other hand one of the defendants appeared as DW-1 and closed their evidence. However, later on issues were re-casted as under on 15.12.2007:- 1) Whether the plaintiff is entitled to recovery as prayed for? OPP. 2) Whether the suit is not maintainable in the present form? OPD 3) Whether the plaintiff has got no cause of action or locus standi to file the present suit? 4) Relief. Learned trial Court, after appraisal of the evidence, dismissed the suit of the plaintiff. Feeling dissatisfied with the judgment and decree dated 5.8.2009, passed by Sh. K.K. Singla, PCS, Additional Civil Judge SAO No. 62 of 2011 -4- (Senior Division), Bathinda, the plaintiff filed the Ist Appeal. The Ist Appellate Court, vide impugned judgment dated 23.8.2011, accepted the appeal setting aside the judgment and decree dated 5.8.2009 passed by Sh. K.K. Singla, PCS, Additional Civil Judge (Senior Division), Bathinda. However, the case was remanded for fresh decision, after allowing the application under Order 41 Rule 27 CPC. The said judgment/ order dated 23.8.2011 passed by Sh. Dilbagh Singh Johal, Additional District Judge, Bathinda, has been challenged by filing the present appeal. The appellant in grounds of appeal has mentioned that following substantial questions of law have arisen in the present appeal for consideration:- i) Whether the impugned judgment dated 23.8.2011 passed by the First Appellate Court is contrary to the provisions of Order 41 Rule 23 of the Code of Civil Procedure? ii)Whether the impugned judgment dated 23.8.2011 vide which the applications of the plaintiff/respondent for re- examining the witnesses and for adducing additional evidence can be allowed in view of the fact that no reason what-so-ever has been assigned by the Ist Appellate Court while allowing the applications which is mandatory as per the Order 41 Rule 27(2) of the Code of Civil Procedure? iii)Whether the impugned judgment dated 23.8.2011 passed by the Appellate Court suffers from material defect and illegality and is contrary to the facts and well settled law? SAO No. 62 of 2011 -5- Learned counsel for the appellant has submitted that the Ist Appellate Court has allowed the application under Order 41 Rule 27 CPC. There must be some ground for allowing the application under Order 41 Rule 27 CPC. At the most the Ist Appellate Court could have called for the report on the issues. Learned counsel for the appellant has relied upon the authorities reported as Onkar Singh vs. Karnail Singh 2008(1) RCR (Civil) 710, Malkit Singh vs. Surjit Kaur and another 1996 (1) R.R.R. 712, M/s. New Bharat Chemical Industry vs. Om Parkash 1997 (3) PLR 357 and Enugukonda Venkata Raghavacharyulu and others vs. Pushpagiri Mattam Cuddapah Dist. and another 2003 (3) Civil Court Cases 0360. I have heard the counsel for the appellant and have also gone through the case file. From the perusal of the file it is revealed that on 15.2.2006 five issues were framed, the detail of which is given above. However, those issues were re-casted on the amended written statement and four issues were framed on 15.12.2007, the detail of which is also given above. It is not disputed during the course of arguments that the trial Court has not given any finding on the issues framed on 15.12.2007 but has decided the case on earlier issues framed on 15.2.2006. Counsel for the appellant wanted to support the said judgment of the trial Court. The judgment of the trial Court seems to be a result of non-application of mind as the trial Court has not even gone through the file, that issues stand already re-casted. After recasting the issues SAO No. 62 of 2011 -6- on 15.12.2007, the trial Court should have decided those issues and not the issues which have already been re-casted. The issues decided by the trial Court are legally not in existence. So, the approach of the trial Court is not correct. So, in these circumstances, the Ist Appellate Court was well within its rights to remand the case for fresh decision. The other ground of attack is in respect of allowing the application under Order 41 Rule 27 CPC. The contention of the counsel for the appellant is that it does not fall within four corners of provisions of Order 41 Rule 27 CPC. That argument is without any substance. A bare perusal of the provisions of Order 41 Rule 27 CPC shows that if the evidence is required to pronounce the proper judgment, in that eventuality, the same can be admitted. No hard and fast rule in respect of deciding the application under Order 41 Rule 27 CPC can be laid down. If the evidence sought to be produced by additional evidence is required by the Court to advance the cause of justice, in that case the same can be allowed at any stage of trial. As discussed above, the judgment of the trial Court is the result of non-application of mind and case has been remanded back for its decision afresh. The Ist Appellate Court has simply observed that case of the plaintiff should not be dismissed on technicalities that affidavit is not in correct form and that additional evidence is required to decide the real controversy between the parties. So, in these circumstances, there is no infirmity in the impugned order passed by the Ist Appellate Court. So, far as the authority in Onkar Singh's case (Supra) is concerned, in that case, it has been held by this Court that report can SAO No. 62 of 2011 -7- be called for additional evidence and case should not be remanded. However, as observed above, there was no dispute in that case that issues framed by the trial Court have not been decided and issues which have already been re-casted have been decided. The authority in Malkit Singh's case (Supra), is also distinguishable on the same grounds. The authority in M/s. New Bharat Chemical Industry's case (Supra) is remotely connected to the facts of the present case. In that case, it has been held that discretion vested in the Court under Order 41 Rule 27 CPC cannot be exercised arbitrarily, contrary to the provisions governing the reception of such evidence. Those facts are not existing in the present case. In Enugukonda Venkata Raghavacharyulu's case (Supra) it has been held that lack of legal knowledge is not a ground for production of additional evidence. There is no such dispute in the present case. So, the above said authorities are distinguishable to the facts of the present case. In view of the above discussion, all the substantial questions raised by counsel for the appellant stand determined against him. So, no ground for interference in the second appeal against the impugned order passed by the Ist Appellate Court, is made out. Consequently, the present appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 22.9.2011 Judge chugh