R.S.A. No.5238 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) R.S.A. No.5238 of 2003 Mahant Gauri Shanker ......Appellant Versus Surjit Kumar and another .....Respondents (2) R.S.A. No.5240 of 2003 Mahant Gauri Shanker ......Appellant Versus Surinder Singh .....Respondent Date of Decision:10.08.2011 CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.H.K.Sharma, Advocate, for the appellant. Mr.B.D.Sharma, Advocate, for the respondent(s). **** M EHINDER S INGH S ULLAR , J.(oral) As identical questions of law and facts are involved, therefore, I propose to dispose of both the above indicated appeals, vide this common order, in order to avoid the repetition of facts in this context. 2. The epitome of the facts, which needs a necessary mention for the limited purpose of deciding the core controversy, involved in the instant appeals and emanating from the record, is that Mahant Gauri Shanker son of Mahant Harnam Dass-appellant-plaintiff(hereinafter to be referred as “the plaintiff”), claiming himself to be the owner of the property in dispute, filed the civil suit bearing No.9 of 1997, for a decree of mandatory injunction, directing Surjit Kumar son of Madan Gopal and Paramjit Singh son of Jawahar Singh-respondent- R.S.A. No.5238 of 2003 2 defendants(for brevity “the defendants”) to hand over the vacant possession of the suit property situated in the abadi of village Apra, Tehsil Philaur, District Jalandhar. 3. Sequelly, the plaintiff has also filed similar second civil suit bearing No.10 of 1997, for mandatory injunction against Surinder Singh son of Gurdial Singh. 4. The plaintiff claimed that he is owner of the suit property and the defendants are his licensees. In order to substantiate his stand, the plaintiff has, inter alia, produced on record copies of site plans(Exs.P1 and P2) and the rent receipts(Exs.P3 to P10) besides oral evidence. 5. The defendant contested the suit and filed the written statement, inter alia, denying the ownership of the plaintiff. According to the defendants, Kaushalya Devi is the owner and they(defendants) are in possession of the suit property as her tenants. Having completed all the codal formalities, the trial Court dismissed the suit of the plaintiff, by means of impugned judgment and decree dated 07.01.2003. 6. Aggrieved by the impugned decision of the trial Court, the plaintiff filed the appeals, which were dismissed as well by the first Appellate Court, by virtue of impugned judgment and decree dated 06.06.2003. 7. The appellant-plaintiff still did not feel satisfied with the impugned judgments and decrees of the Courts below and preferred the present regular second appeals. That is how, I am seized of the matter. 8. At the very outset, learned counsel has contended with some amount of vehemence that although the appellant-plaintiff filed an application for additional evidence, for production of original 'Bahi' but the first Appellate Court, without deciding the same, has illegally decided/dismissed the appeals on merits, by way of impugned judgment and decree dated 06.06.2003. The argument is that, in this manner, the case of the plaintiff has been greatly prejudiced in this relevant R.S.A. No.5238 of 2003 3 behalf. 9. Faced with the situation, learned counsel for the respondent- defendants has fairly acknowledged that the appeals were decided on merits, without deciding the application for additional evidence, filed by the plaintiff. 10. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration of the entire matter, to my mind, as the impugned judgment and decree of the first Appellate Court, cannot legally be maintained, therefore, the present appeals deserve to be partly accepted in this respect. 11. As is evident from the record that the plaintiff filed the suits for mandatory injunction against the defendants, claiming himself to be the owner of the suit property. In order to substantiate his claim, he has produced on record site plans(Exs.P1 and P2) and copies of rent receipts(Exs.P3 to P10), which are entered into original 'Bahi'. The Courts below negatived the claim of the plaintiff, inter alia, mainly, on the ground that since, the plaintiff did not produce the original 'Bahi' entries, so, the photo-copies of the rent receipts(Exs.P3 to P10) are not legally proved. In that view of the matter, during the course of pendency of the appeals, the plaintiff moved an application for additional evidence, to produce the original 'Bahi' and the first Appellate Court passed the following order on 20.05.2003:- Present: Counsel for the parties. The learned counsel for the appellant has moved an application for production of original Bahi. Copy supplied to party opposite. This application shall be disposed off along with the main appeal. Now to come up for filing reply, consideration and main arguments on 28.5.2003.” 12. Meaning thereby, the first Appellate Court has directed that the application shall be disposed of along with the main appeals, but strange enough, without deciding the application for additional evidence, the first Appellate Court R.S.A. No.5238 of 2003 4 has decided/dismissed the main appeals on merits, through the medium of impugned judgment and decree dated 06.06.2003. 13. What cannot possibly be disputed here is that the parties have a statutory right to lead additional evidence and the first Appellate Court has the power to allow such additional evidence, inter alia, for any other substantial cause, as contemplated under Order 41 Rule 27 CPC. The first Appellate Court was well within its jurisdiction either to allow or to decline the production of additional evidence to a party, as the case may be. But dismissing the main appeals, without deciding the application for additional evidence, renders the judgment and decree of the first Appellate Court, as illegal. 14. As indicated earlier, the bare perusal of the record would reveal that, as to whether the plaintiff, or temple, or Kaushalya Devi, is the owner of the property in dispute, would be a moot point to be decided by the first Appellate Court. For that reason, to me, the decision of the application for production of original 'Bahi' , as additional evidence, was very much essential to decide the real controversy between the parties, which the first Appellate Court omitted to do so. Therefore, the impugned judgment and decree of the first Appellate Court cannot legally be maintained in the obtaining circumstances of the case. In this manner, it would be in the interest and justice would be sub-served, if the matter is remanded back to the first Appellate Court in this relevant context. 15. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of hearing of the appeals by the first Appellate Court, the instant appeals are accepted. Consequently, the impugned judgment and decree dated 06.06.2003 of the first Appellate Court are hereby set aside. The matter is remitted back, with a direction to the first Appellate Court, first to decide the application for additional evidence filed by the plaintiff and then to decide the main appeals on merits, in accordance with law. R.S.A. No.5238 of 2003 5 16. The parties through their counsel are directed to appear before the concerned first Appellate Court on 29.11.2011, for further proceedings. 17. Needless to mention here that, nothing recorded hereinabove would reflect, on the merits of the case, in any manner, as the same has been so observed for a limited purpose of deciding the present controversy only. August 10, 2011 (MEHINDER SINGH SULLAR) seema JUDGE