^ nsGH COURT OF CHHATTiSGARH AT BiLASPUR Piaintiff & 2Q-S1 Triiok Chand, S/o Late Darbari Lal, Aaed 70 vesrs. R/o Gaurela, Tshsi! Psnf Road, Disirict Bliaspur (CG). k*-"-'/- Versus ResBondents Defendants (Secon 1. Triveni Bsi, D/o Buddhu, Aged 55 ysars, 2. Narbadiya 3ai, D/o Buddhu, Aged 58 yesrs, Both R/o Tikarkaia, Tahsii Pendra Road, District Biiaspur (CG). 3. Stste of Chhattisgarh, through the Colleetor, Bilaspur (CG). td Apiseal under Section 100 of C.P.C.) sondenis No. and2. Mr.Ravish Chandra Aarawai, Senior Advocsie with Mr.Sanjav S.Agrswa!, AdvocaSe Tor the appeliant. Dr.Rajesh Pandey, Advocate for rsspondeni Mr.VinodTeksm, Panei Lawyer for respon< (SB: Hon'bie iVir. T.P. Sharma.J.) i»- JUDG 'ii! RBy this second appeai under Secfion 100 of ihe Code of Civii Procedure, 1908 (for short 'CPC'), the appeiiani has chaiienged the iegaiity and propriety of the judgment & decree dated 19.4.201 1 passed by the Additionai Distrtct Judge, Pendra Road, Distt.Biiaspur, in Civil Appeai No.lA/11, afflrming the judgment & decres dated 25.11.2010 passed by the Civii Judge Ciass-1, Pendra Road, Dlsa.Biiaspur, in CiV!! iult No.159A/'2002, 'n'hereby me Civil Judge Ciass-i 'nas alio'A'ed sounter-ciaim of respondents No.1 and 2 and has dlsmlssed the suit for deciarstion and injunction. 2. The present second appeai was admitted ror consideration on 11.11.1994 3nd,5.8.2011 on the foiiowing substantia! questions of law:- (1)'whether -failure of the triai Court t •f^ .^\/i^<i*is<i4' l^ SAlfUii. documents^which was taken on record by order dated 02/11/2010 has vitisied the triai and further ^•E.u.ag^ ig •.."K'sX 1 s,~'"ti ] ;:A ' ^. ^ ^ <"^ the appeliate Court's fsilure to consider the sald aspect of the matter, has vitiated the appeiiate )/^<^?V«/^»%<•'? tyiiicSiiL f (2)Whether flnding of both the Courts below relating to title and possession Is perverse?" Tl-io eliant has fiied with oriainai docu 'he preseni appeliant has fiied clvii suit for decisratlon and injunction reiating to the aforesald property in dlspute. Respondents No.1 a",d 2 have aiso fiied counter-ciaim reiating io same property. As per ordersheet dated 28.10.2010, ori the daie of final argument ths present fiied appiication for taking documenis on record aiong documents. ASer provlding opportunlty of hearlng fo the parties, the irial Court has ailowed the appilcation vide order dated .2.11.2010 on.the ground thst aithough ihe appeiiant/'piaiRtiff has filed the documents at beiated stage but they may bs necessar/ for just deciston of the case and the trlai Court has adjourned the case fcr marking the documenfs and final hearing for 16.11.2010, but on 16.11.2010 the triai Court has held that marking of documsnts wouid not be proper and case was fixed for nnai argument and thereafter counter-ciaim was decreed. Same was chaiienged before the iower appeiiate Court where again appiication ror considering the aforesaid documents and appilcation for taking additlonai ev'idence under Order 41 Ruie 27 of the Code has been filed by the appellanfc/pisintiff. Both the appiicatlons have been disaiiowed by the judgment and decree smpugned and affirmed ihe judgment and decres passed by ths firsi appeiiate Court. have heard iearned counsei for the parties, perused the judgment & decree impugned, judgment & decree of ihe triai Court and records of the Courts beiow. 5. Leamed counse! for the appeliant vehementiy submits that vide order datsd 2.11.2010 the triai Court has taken the document on record on the ground that document is necessa"if for just decision of the case, subject to payment of cost. Case was adjourned for consideration of marking and thereafter marking has been denled and the tria! Court has decided the case. Learned counsei further sybmits t •<'st Qf^ar ^Q Ifir^ il lal cailSSt i,aKir pubiic documents on record the Couri was under obiigation to mark it t;;j:.;.^^^^K3^sy^2^£^dB^^^ ^'tssi&, "^ "^ •sS-5 '^J^/ "^ESS^' <<\ -s- s 27 ofths as Ex.F/1 or Ex.D/1. Oniy with a view to racilitate the same for consideration, no any evidence to prove such document was rsquired, but by not marking or consldering the public documents the tria! Court i'^'^^^ r^<^»vi»TniWf^/^ iil/^t^'^imj •^ailTt^/sii 1/0% '»T Tirt^i <T^k»^in(i•>•>•(•.<^ «•<•'*'•'•a.rt/s Tt^/^ '^r^i^/^il.'^ r^r liao irfUiiiiiitli^su iiitsytSiii.y, ciiii i^uyi i t3i. LS ifc? tappSSiEcaie ?3<.t3^<£? 1,1 f13 cappeilcBi ii. has fiied another set cf pubiic documents which are nscessar/ for just decision of the case but ths iower appetlaie Court has also considered the aforesaid appiication filed under Ordsr 41 Ruie 27 Code and thereby fhe iower appeiiate Court has aiso commiiied iiiegaiity. The aiieged documeBts were not irreievant, inter alis, they were reievant fer just dec'ision of the case. On ths other hand, iearned counsei for respondsnts i'te.1 and 2 vehemently opposes the appeai and submits that order taking . document does not give any right to the partles to reiy the same or the Court was not under obiigation to conslder the order taking document on record. The triai Court has righiiy not considered the documenis and by not considering the ciocuments the trial Court has not commltted any iiiegaiity. Learned counsei Turthsr submits that again at the appeliate stage the appeiiant has fiied another set of documents without showlng the ground that why they have not fiied eariier which were pubiic documsnts. in these circumstances, the iower appeliate Court hss intiff rightiy dismissed the sppiication fiied on behaif of ihs appeilanfc''pl3i and thereby the lowsr appeiiate Court has not committed any iliegaiity. Learned counsei contended that if the appiication is aiiowed and documenis are considersd, ihsn serious prejudice wouid be caused to respondents No.1 and 2 after iapse of considerabie time. Both ths parties have daimed titie over the property. The trial Court has framed issus No.1 reiating to titie and possessson. To prove issus reiating to possession, revenue records were reievant documents, aithough the appeiiant faiied to fiie ihe aforesaid documsnis befors the triai Court at eariier stage, but ihe iriai Court has aliowed the appllcatlon at beiated stage subject to payment of cost. The aileged riocuments which were ^aken on record by the tria! -^l /-^! !i4 i*'Qr<a ^"uUi (. on+i *A*/^i^^t »^>i«^ii/» f^f\^tv ^vv^fs'wrv' s; yuuii^ u^j^/yiijct !i,o issued by pubiic aathorities, therefore, no formai proof was necessar/ for cpnstdering the^same and marking/exhlbiting the formaiity to ensure t'ne number of documents. ciocuments iS •*•».?'>», ^. ^- 8. Dsfiriit not corssidering the documents fiied on be'naif of the appeliant/piaintiff, the triai Court and iower appeiiate Court have committed iiiegallty. Ruie 27 of ihe 9. As rsgards the question of application under Order 41 Code reiating to another set of documenis which Vv'ere aiso pubiic documents and most of ihe documsnts are copiss of revenue records, by simply rejecting the appiicstion by the iower appeiiate Court on the ground of one document reiatlng to death certificate of Darbari the Sower appeilate Court has committed iliegaiity. The iowsr appellate Court was under obiigatiori to consider the documents in the light of ths provisions confainsd in Order 41 Ru!e 27 of the Code even at ihe beiated stage or after iong delay. if the documents were necessary for just dsc'ision of the case, the iower appeliate Court was under obilgafion to consider ihs application but by rejecting the ssme the tower appeiiate Court has also committed iiiegaiity. 10Jnf itances, w/ithout considering the case on merits of the parties, it wouid be necessa"/ to provide opportunity to t'ne parties to maks submission on the basls of documents and the Court after consldering the documents shouid pass the judgment and decree afresh. Considsring the aroresaid fact, substantiai questton of law No.1 on 7.7.2011 Is decided as positive. formulstsd on 11. in the lighi of decision on substantiai questton of iaw No.1, at this stags it «vouid not just to give finding on substantiai questlon of Isw No.2 formuiated on 5.8.2011. 12.0n the basis of finding on substantiai quesiion of iavv No.1, the appeai desen/es to be aiiowsd and it is hereby ailowed. Appiication fiied before the iower appeilate Court under Order 41 Ruis 27 of the Code is aiso aiiowed. Case is remitted to the triai Court i.e. Civii Judge Ciass-i, Pendra Road for providing opportunity of hearing to the parties to adduce the evidence reiating to documents fiied before the triai Court and the lower >gppetiste Court and aiso for prov'idlng opportunlty for \ fiiing documsnts to respondents No.1 and 2 to counter the aforssaid dGcumsnts filsd on behaif of the appeliant/plalntiff, if they so neeci ai declde the sust and counter-ciaim ,f f^t\ftfi/^l^f^f t/Nitt t.riif^. -csaim on tne oasis OT eviaence inciuGing tne f ^•^ ^' '^'. *^%'--:. ^ '•-'}:'"^. ^l; "..'^ ^ t-....y / -.^T- aforesaid documenis and the documents which may be fiied by respondents No.1 and 2. Parties are directed to remain present before the Civli judge Ciass-i, Pendra Road on 11.1 .2012. •<1 D .Parties s'naii bear the'ir own costs. 14.Advocate fee as per scheduie. Sd/- T.P. Shartts Judee :.;: •^'•'•^.':T^^^^!;:^^£^W;^JS^£: