advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Saturday, July 2, 2016

Or.41, rule 27 cpc = remand the case to the Trial Court=The Trial Court vide judgment/decree dated 11.12.2001 dismissed the suit on two grounds. It was held that the suit is barred by limitation. It was further held that the plaintiff (the appellant) failed to prove their title over the suit land for want of adequate evidence whereas the defendants (respondents) were able to prove their title over the suit land.-The appellant, felt aggrieved, filed first appeal before the High Court. In the appeal, the appellant filed an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”) and sought permission to adduce additional evidence in support of their case. The additional evidence inter alia consisted of documents issued by the State Land Revenue department in relation to the suit land. According to the appellant, these documents were relevant and material for deciding the ownership issue and if properly examined along with the documents already filed in the suit, would establish the appellant's title over the suit land to the exclusion of every one including the respondents. It was further alleged that the appellant was not able to file these documents in the Trial Court because firstly, these documents were old; Secondly, the appellants came to know of these documents after the decision was rendered in the civil suit; and lastly, since the documents were traced recently with great difficulty and being in the nature of public documents, the appellant be allowed to file them so as to enable the Court to properly decide the issue of ownership in relation to the suit land.- Order 41 Rule 27 of the Code is a provision which enables the party to file additional evidence at the first and second appellate stage. If the party to appeal is able to satisfy the appellate Court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject matter of the lis, the Court should allow the party to file such additional evidence. After all, the Court has to do substantial justice to the parties. Merely because the Court allowed one party to file additional evidence in appeal would not by itself mean that the Court has also decided the entire case in his favour and accepted such evidence. Indeed once the additional evidence is allowed to be taken on record, the appellate Court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal. since we have allowed the application made by the appellant under Order 41 Rule 27 of the Code and has permitted the appellant to file additional evidence then as a necessary consequence, the impugned order has to be set aside and respondents are granted an opportunity to file additional evidence in rebuttal, if they so wish to file.= The civil suit is now restored to its file. The Trial Court, i.e., District and Sessions Judge Bengaluru, is directed to retry the civil suit on merits. The additional evidence filed by the appellant is taken on record. The respondents are afforded an opportunity to file additional evidence in support of their case in rebuttal. The parties are at liberty to amend their pleadings in case, if they so wish and further adduce additional oral evidence in support of their respective case in addition to what has already been adduced and prove the documents filed at the appellate stage. While trying the civil suit, the Court may in its discretion or at the instance of any party, as the case may be, consider appointing Court Commissioner preferably any retired government revenue official by taking recourse to the provisions of Order 26 of the Code to undertake spot inspection of the suit land with a view to verify its exact location, area, boundaries etc. keeping in view the evidence on record in relation to the suit land. The Trial Court shall decide the civil suit strictly in accordance with law on the basis of pleadings and the evidence adduced by the parties uninfluenced by any observations, reasoning and the findings of the two Courts below which stand now set aside. Since the civil suit is quite old, we direct the District and Sessions Judge Bengaluru to decide the civil suit expeditiously and preferably within 6 months from the date of party’s appearance before him. Parties to appear before the District and Sessions Judge Bengaluru on 01.08.2016.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 920 OF 2008


      Union of India                                     Appellant(s)


                             VERSUS


      K.V. Lakshman & Ors.                   Respondent(s)


                       J U D G M E N T



Abhay Manohar Sapre, J.

1)    This appeal is filed  against  the  final  judgment  and  order  dated
24.06.2003 of the High Court of Karnataka at Bangalore in R.F.A. No. 933  of
2002 whereby the High Court dismissed the  appeal  filed  by  the  appellant
herein, in consequence, affirmed the judgment and  decree  dated  11.12.2001
passed by the Ist Additional City Civil and  Sessions  Judge,  Bangalore  in
O.S. No. 5588 of 1976.
2)    In order to appreciate the controversy involved in the  appeal,  which
lies in a narrow compass, it is necessary to state few relevant facts.
3)     The  appellant  -  Union  of  India  (Divisional   Railway   Manager,
Bangalore) is the plaintiff whereas the respondents are  the  defendants  in
the suit.
4)    The dispute in this case relates to  a  plot  of  land  situated  near
Krishnarajapuram  Railway  Station,  which  is  around  14  KMs  away   from
Bangalore city- details of which are mentioned in the plaint  (herein  after
referred to as "the suit land”).
5)     The appellant  filed  the  suit  bearing  Civil  Suit  No.  5588/1976
against the respondents in the  Court  of  Ist  Additional  City  Civil  and
Session Judge, Bangalore for a declaration that  they  (appellant)  are  the
owners of the suit land and that the respondents whose ancestral  claims  to
have interest in the suit land have no right,  title  and  interest  in  the
suit land. The appellant in order to prove their title over  the  suit  land
filed certain documents.
6)    The respondents filed their written statements and while  denying  the
appellant’s title asserted their own title over the suit land through  their
predecessors. According  to  them,  their  predecessors  acquired  occupancy
rights  under  the  State  Tenancy  Laws  over  the  suit  land  in  revenue
proceedings. It was contended that by virtue  of  these  proceedings,  their
ancestral acquired superior title over the suit land  to  the  exclusion  of
every one including the appellant and the same devolved on  them  after  the
death of their predecessor in title. The  respondents  also  raised  a  plea
that the suit is barred by limitation. The Trial Court on the basis  of  the
pleading  framed  issues  arising  in  the  civil  suit.   Parties   adduced
evidence.
7)    Therefore, the dispute that essentially arose between the parties  was
who is the owner of the suit land-the appellant  (Union  of  India-Railways)
or the respondents’  predecessor in title?
8)    The Trial Court vide judgment/decree dated  11.12.2001  dismissed  the
suit on two grounds. It was held that the suit is barred by  limitation.  It
was further held that the plaintiff (the appellant) failed  to  prove  their
title over  the  suit  land  for  want  of  adequate  evidence  whereas  the
defendants (respondents) were able to prove their title over the suit land.
9)    The appellant, felt aggrieved, filed  first  appeal  before  the  High
Court. In the appeal, the appellant filed  an  application  under  Order  41
Rule 27 of the Code of Civil Procedure, 1908  (hereinafter  referred  to  as
“the Code”) and sought permission to adduce additional evidence  in  support
of their case. The additional evidence inter  alia  consisted  of  documents
issued by the State Land Revenue department in relation to  the  suit  land.
According to the appellant, these documents were relevant and  material  for
deciding the ownership  issue  and  if  properly  examined  along  with  the
documents already filed in the suit, would establish the  appellant's  title
over the suit land to the exclusion of every one including the  respondents.
 It was further alleged that the  appellant  was  not  able  to  file  these
documents in the Trial Court because  firstly,  these  documents  were  old;
Secondly, the appellants came to know of these documents after the  decision
was rendered in the civil suit; and lastly, since the documents were  traced
recently with great difficulty and being in the nature of public  documents,
the appellant be allowed to file them so as to enable the Court to  properly
decide the issue of ownership in relation to the suit land.
10)   The learned Single Judge, by impugned judgment running into 50  pages,
dismissed the appellant's  first  appeal  in  limine  and,  in  consequence,
upheld the judgment/decree of the Trial Court.   The  learned  Single  Judge
also dismissed the application filed by the appellant under  Order  41  Rule
27 of the Code holding that firstly, the cause mentioned in the  application
as to why the additional evidence could not  be  filed  in  the  civil  suit
before the Trial Court is not sufficient cause and secondly, the  additional
evidence sought to be  tendered  is  neither  material  nor  relevant.  Felt
aggrieved, the plaintiff has filed this  appeal  by  way  of  special  leave
before this Court.
11)   Heard Mr. S.N. Terdal, learned counsel for the appellant and Mr.  P.P.
Singh,  learned counsel for the respondents.
12)   Learned counsel for the appellant while  assailing  the  legality  and
correctness of the impugned judgment urged  several  grounds  and  submitted
that the High Court (Single  Judge)  erred  in  dismissing  the  appellant's
first appeal in limine, so also erred in dismissing  the  application  filed
under Order 41 Rule 27 of the Code.
13)   Firstly, learned counsel urged that the appeal being in the nature  of
first appeal under Section 96 of the Code  should  have  been  admitted  for
final hearing almost as of right unlike  the  second  appeal  which  is  not
admitted for final hearing unless it involves some substantial  question  of
law. Learned counsel urged that had  the  appeal  been  admitted  for  final
hearing, then the High Court would have been able to go into  all  questions
of facts and law in its first appellate jurisdiction by party and come to  a
conclusion different from that of the Trial Court.
14)   Secondly, learned counsel urged that since a right to file  the  first
appeal is a valuable legal right, such right could not be taken away by  the
High Court in a casual manner by dismissing the appellant's first appeal  in
limine.
15)    Thirdly, learned counsel urged that both the Courts  below  erred  in
dismissing the appellant's suit on the  ground  of  limitation  and  on  the
ground of insufficiency of evidence adduced by the appellant to prove  their
ownership over the suit  land.  Both  the  findings,  according  to  learned
counsel, are factually and legally unsustainable and against the  record  of
the case.
16)   Fourthly, learned counsel urged that the High Court further  erred  in
rejecting the application made by the appellant under Order 41  Rule  27  of
the Code. According to learned counsel, the application made under Order  41
Rule 27 deserved to be allowed on  the  grounds  set  out  therein  as  also
keeping in view the nature of documents filed along  with  the  application.
Learned counsel pointed out  that  the  additional  evidence  sought  to  be
adduced was relevant for deciding the issue  of  ownership  of  the  parties
over the suit land and hence, the same should have been taken on  record  of
the case for determining the ownership rights of the parties  in  accordance
with law.
17)   Fifthly, learned counsel pointed out that the  approach  of  the  High
Court while dismissing the application was faulty  because  the  High  Court
while considering  the  application  virtually  appreciated  the  additional
evidence on merits and found that the  documents  were  not  relevant.  Such
approach according to learned counsel was not permissible  at  the  time  of
considering the application.
18)   In reply, learned counsel for the respondents supported  the  impugned
judgment and prayed for its upholding.  According  to  learned  counsel,  no
case was made out to interfere in the impugned judgment.
19)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find  force  in  the  submissions  urged  by  the
learned counsel for the appellant.
20)   As rightly argued by the learned counsel for the appellant,  the  High
Court should not have dismissed the  appeal  in  limine  but  in  the  first
instance should have admitted the appeal  and  then  decided  finally  after
serving notice of the appeal on the respondents.
21)   We also find from the record that on the one hand, the  learned  Judge
observed that the appeal has “absolutely  no  arguable  point"  and  on  the
other hand to support these  observations,  the  learned  Judge  devoted  50
pages. This itself indicated that the appeal involved arguable points.
22)   It is a settled principle of law that a right  to  file  first  appeal
against the decree under Section 96 of the Code is a  valuable  legal  right
of the litigant.  The  jurisdiction  of  the  first  appellate  Court  while
hearing the first appeal is very wide like that of the Trial  Court  and  it
is open to the appellant to attack all findings of fact  or/and  of  law  in
first appeal. It is the duty of the first appellate Court to appreciate  the
entire evidence and may come to a conclusion  different  from  that  of  the
Trial Court.

23)   Similarly, the powers of the first appellate Court while deciding  the
first appeal are indeed well defined by various judicial  pronouncements  of
this Court and are, therefore, no more res  integra.    It  is  apposite  to
take note of the law on this issue.
24)   As far back in 1969, the learned Judge – V.R. Krishna Iyer, J (as  His
Lordship then was the judge of Kerala High Court) while deciding  the  first
appeal under Section 96 of the CPC in Kurian Chacko vs. Varkey  Ouseph,  AIR
1969 Kerala 316, reminded the first appellate Court of its  duty  to  decide
the first appeal. In his distinctive style of writing with subtle  power  of
expression, the learned judge held as under:
“1. The plaintiff, unsuccessful in two Courts, has come  up  here  aggrieved
by the dismissal of his suit which was one  for  declaration  of  title  and
recovery of possession. The defendant disputed the plaintiff's title to  the
property as also his possession and claimed both  in  himself.  The  learned
Munsif, who tried the suit, recorded findings against the plaintiff both  on
title  and  possession.  But,  in  appeal,  the  learned  Subordinate  Judge
disposed of the whole matter glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact ordinarily and therefore  a
litigant is entitled to a full and fair  and  independent  consideration  of
the evidence at the appellate stage. Anything less than this  is  unjust  to
him and I have no doubt that in the present  case  the  learned  Subordinate
Judge has fallen far short of what  is  expected  of  him  as  an  appellate
Court. Although there  is  furious  contest  between  the  counsel  for  the
appellant and for the respondent, they appear  to  agree  with  me  in  this
observation…..”
                         (Emphasis supplied)

25)   This Court also in various cases reiterated  the  aforesaid  principle
and laid down the powers of the appellate Court  under  Section  96  of  the
Code while deciding the first appeal.
26)   We consider it apposite to refer to some of the decisions.
27)   In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001)  3
SCC 179, this Court held (at pages 188-189) as under:
“.……..the  appellate  court  has  jurisdiction  to  reverse  or  affirm  the
findings of the trial court.  First  appeal  is  a  valuable  right  of  the
parties and unless restricted by law, the whole case  is  therein  open  for
rehearing both on questions of fact and law. The judgment of  the  appellate
court must, therefore, reflect its conscious application of mind and  record
findings supported by reasons, on all the  issues  arising  along  with  the
contentions put forth, and pressed  by  the  parties  for  decision  of  the
appellate court……while reversing a finding of fact the appellate court  must
come into close quarters with the reasoning assigned by the trial court  and
then assign its own reasons for arriving at a different finding. This  would
satisfy the court hearing a further appeal that the  first  appellate  court
had discharged the duty expected of it…………”

28)   The above view was followed by a three-Judge Bench  decision  of  this
Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC 756, wherein it  was
reiterated that sitting as a court of first appeal, it is the  duty  of  the
High Court to deal with all the issues and the evidence led by  the  parties
before recording its findings.
29)   In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243, this Court (at  p.
244) stated as under: (SCC para 3)
“3. The first appeal has to be decided on facts as well as on  law.  In  the
first appeal parties have the right to be heard both on questions of law  as
also on facts and the first appellate court is required  to  address  itself
to all issues and decide the case  by  giving  reasons.  Unfortunately,  the
High Court, in the present case has  not  recorded  any  finding  either  on
facts or on law. Sitting as the first appellate court it  was  the  duty  of
the High Court to deal with all the issues  and  the  evidence  led  by  the
parties before recording the finding regarding title.”

30)   Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while
considering the scope of Section 96 of the Code of Civil Procedure, 1908,
this Court (at pp. 303-04) observed as follows: (SCC para 2)
“2. A court of first appeal can reappreciate the entire  evidence  and  come
to a different conclusion……...”

31)   Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (2010)  13  SCC
530, this Court taking note of all  the  earlier  judgments  of  this  court
reiterated the aforementioned principle with these words:
“3. How the regular first appeal is to  be  disposed  of  by  the  appellate
court/High Court has been considered by this  Court  in  various  decisions.
Order 41 CPC deals with appeals from original  decrees.  Among  the  various
rules, Rule 31 mandates that the  judgment  of  the  appellate  court  shall
state:

(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed  or  varied,  the  relief  to
which the appellant is entitled.

4. The appellate court has jurisdiction to reverse or  affirm  the  findings
of the trial court. The first appeal is a valuable right of the parties  and
unless restricted by law, the whole case is therein open for rehearing  both
on questions of fact and law. The judgment  of  the  appellate  court  must,
therefore, reflect its conscious application of  mind  and  record  findings
supported by reasons, on all the issues arising along with  the  contentions
put forth, and pressed by the parties for decision of the  appellate  court.
Sitting as a court of first appeal, it was the duty of  the  High  Court  to
deal with all the  issues  and  the  evidence  led  by  the  parties  before
recording its findings. The  first  appeal  is  a  valuable  right  and  the
parties have a right to be heard both on questions of law and on  facts  and
the judgment in the first appeal must address itself to all  the  issues  of
law and fact and decide it by giving reasons in  support  of  the  findings.
(Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3  SCC  179  at  p.  188,
para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.)

5. In view of the above salutary principles, on going through  the  impugned
judgment,  we  feel  that  the  High  Court  has  failed  to  discharge  the
obligation placed on it as  a  first  appellate  court.  In  our  view,  the
judgment under appeal is cryptic and none of the relevant aspects have  even
been noticed. The appeal has been decided in an unsatisfactory  manner.  Our
careful perusal of the judgment in the regular first appeal  shows  that  it
falls short of considerations which are expected from  the  court  of  first
appeal. Accordingly, without going into the merits  of  the  claim  of  both
parties, we set aside the impugned judgment and decree  of  the  High  Court
and remand the regular  first  appeal  to  the  High  Court  for  its  fresh
disposal in accordance with law.”

32)   The  aforementioned  cases  were  relied  upon  by  this  Court  while
reiterating the same principle in State Bank of India  &  Anr.  vs.  Emmsons
International Ltd. & Anr., (2011) 12 SCC 174.
33)   This takes us to the next question  in  relation  to  the  application
filed under Order 41 Rule 27 of the Code. In our considered view,  the  High
Court committed another error when it rejected the application filed by  the
appellant under Order 41 Rule 27 of  the  Code.  This  application,  in  our
opinion, should have been allowed for more than one reason.
34)   First, there was no one to oppose the  application.  In  other  words,
the respondents were neither served  with  the  notice  of  appeal  and  nor
served with the application and hence they did not oppose  the  application.
Second, the appellant averred in the application as to why  they  could  not
file the additional evidence earlier in civil suit and why there  was  delay
on their part in filing such evidence at the  appellate  stage.  Third,  the
averments in  the  application  were  supported  with  an  affidavit,  which
remained un-rebutted.  Fourth,  the  application  also  contained  necessary
averment as to why the additional evidence was necessary to decide the  real
controversy involved in appeal. Fifth, the additional evidence being in  the
nature of public documents and pertained to suit land, the same should  have
been taken on record and lastly, the appellant being the Union of India  was
entitled to legitimately claim more indulgence in  such  procedural  matters
due to their peculiar set up and way of working.
35)   It was for all these reasons, we are of the view that the  application
filed by the appellant under Order 41 Rule 27 of the  Code  deserved  to  be
allowed and is accordingly allowed  by  permitting  the  appellant  to  file
additional evidence.
36)   Learned counsel for  the  respondents,  however,  contended  that  the
additional evidence is not relevant for deciding the  appeal/suit.  He  also
urged that the appellant has not pleaded any cause as required  under  Order
41 Rule 27 to file  such  evidence  at  the  appellate  stage.  We  are  not
impressed by this submission in the light of the reasons given  supra.  This
submission is accordingly rejected.
37)   Order 41 Rule 27 of the Code is a provision which  enables  the  party
to file additional evidence at the first and second appellate stage. If  the
party to appeal is able  to  satisfy  the  appellate  Court  that  there  is
justifiable reason for not filing such evidence at the trial stage and  that
the additional evidence is relevant and material for deciding the rights  of
the parties which are the subject matter of the lis, the Court should  allow
the party to file such additional evidence. After all, the Court has  to  do
substantial justice to the parties. Merely because  the  Court  allowed  one
party to file additional evidence in appeal would not by  itself  mean  that
the Court has also decided the entire case in his favour and  accepted  such
evidence. Indeed once the additional evidence is  allowed  to  be  taken  on
record, the appellate Court is under obligation to give opportunity  to  the
other side to file additional evidence by way of rebuttal.
38)   Coming to the case, since we have allowed the application made by  the
appellant under Order  41  Rule  27  of  the  Code  and  has  permitted  the
appellant to file additional evidence then as a necessary  consequence,  the
impugned  order  has  to  be  set  aside  and  respondents  are  granted  an
opportunity to file additional evidence in rebuttal,  if  they  so  wish  to
file.
39)   The other inevitable consequence is that the case has to  be  remanded
either to the High Court for deciding the appeal afresh on merits or to  the
Trial Court for deciding the civil suit afresh on merits in accordance  with
law.
40)   Having regard to the nature of controversy and  the  manner  in  which
the suit/appeal was decided, we consider it appropriate, in the interest  of
parties, to remand the case  to  the  Trial  Court  (District  and  Sessions
Judge,  Bengaluru)  for  deciding  the  civil  suit  afresh  on  merits   in
accordance with law.
41)   In view of foregoing discussion, the appeal succeeds and  is  allowed.
The impugned judgment and also  the  judgment/decree  passed  by  the  Trial
Court are set aside.
42)   The civil suit is now restored to its file.  The  Trial  Court,  i.e.,
District and Sessions Judge Bengaluru, is directed to retry the  civil  suit
on merits. The additional evidence  filed  by  the  appellant  is  taken  on
record. The respondents are  afforded  an  opportunity  to  file  additional
evidence in support of their case in rebuttal. The parties  are  at  liberty
to amend their pleadings in  case,  if  they  so  wish  and  further  adduce
additional oral evidence in support of their respective case in addition  to
what has  already  been  adduced  and  prove  the  documents  filed  at  the
appellate stage.
43)   While trying the civil suit, the Court may in  its  discretion  or  at
the instance of any party, as the case may  be,  consider  appointing  Court
Commissioner preferably any retired government revenue  official  by  taking
recourse to the provisions of  Order  26  of  the  Code  to  undertake  spot
inspection of the suit land with a view to verify its exact location,  area,
boundaries etc. keeping in view the evidence on record in  relation  to  the
suit land.
44)   The Trial Court shall decide the civil  suit  strictly  in  accordance
with law on the basis of pleadings and the evidence adduced by  the  parties
uninfluenced by any observations, reasoning and  the  findings  of  the  two
Courts below which stand now set aside.
45)   We may also clarify that we have refrained from recording any  finding
either way on the merits.
46)   Since the civil  suit  is  quite  old,  we  direct  the  District  and
Sessions  Judge  Bengaluru  to  decide  the  civil  suit  expeditiously  and
preferably within 6 months from the date of party’s appearance  before  him.
Parties to appear before  the  District  and  Sessions  Judge  Bengaluru  on
01.08.2016.
47)   The original record of the case, if requisitioned, be  sent  forthwith
to the Trial Court (District and Sessions Judge, Bengaluru) so as  to  reach
to the Court concerned before the date of parties appearance.
48)   No costs.

.……...................................J.
                                     [ABHAY MANOHAR SAPRE]


                     ………..................................J.
                                      [ASHOK BHUSHAN]
      New Delhi,
      June 29, 2016.
-----------------------
22


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.