IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5185 OF 2008
[Arising out of SLP(C) No.14423/2007]
NAMDEO S/O BAPURAO BANSOD .......APPELLANT(S)
Versus
TUKARAM S/O MAROTRAO JADHAV .....RESPONDENT(S)
O R D E R
Leave granted. Heard learned counsel for the parties. The appellant and
respondent are respectively the plaintiff and defendant in a suit for permanent
injunction.
2. The appellant's prayer in the suit was to restrain the respondent from
interfering with his possession of agricultural field S.No.131/2 of Ridhora village
measuring 4 acres. The suit was dismissed by judgment and decree dated 31.7.2000.
The appellant filed an appeal before the District Judge, Akola. During the pendency of
the said first appeal before the District Judge, the appellant filed two applications. One
application was for amendment of plaint, under Order 6 Rule 17 of CPC. The second
application was under Order 41 Rule 27 of CPC to accept the certified copies of
revenue extracts relating to the suit land as additional evidence.
........2.- 2 -
3. The first appellate Court allowed the application for amendment by order
dated 20.4.2002. By another order dated 20.4.2002, the first appellate Court permitted
production of documents. Ultimately, the first appellate Court dismissed the appeal by
order dated 19.6.2006. While doing so, it did not refer to or consider the documents,
production of which was permitted. The second appeal filed by the appellant was also
dismissed by the High Court. Dealing with the contention of the appellant that the first
appellate court ought to have considered and taken into account the additional
evidence, the High Court held that it was not sufficient for the appellant to merely file
an application under Order 41 Rule 27 CPC; that he ought to have specifically
requested the first appellate court to remit the matter to the trial Court for further
evidence; and that in the absence of such prayer, the first appellate Court was justified
in ignoring the said documents.
4. It is true that the first appellate Court only allowed “production of
documents” and did not make any order receiving them as additional evidence. The
documents produced by the appellant were all certified copies of crops statement,
record of rights, index of lands and revenue proceedings. The appellant was
apparently under the impression that his application for additional evidence had been
allowed and the
.....3.- 3 -
documents had been accepted as evidence. Order 41 Rule 27 CPC contemplates that
wherever additional evidence is allowed to be produced by the appellate Court, the
court should record reasons for its admission. We find that the first appellate Court
did not reject the application under Order 41 Rule 27 CPC, nor did it assign any
reasons while recording that only production of the documents was allowed. We are of
the view that the procedure adopted was incorrect. The first appellate Court ought to
have passed an order in respect of the application under Order 41 Rule 27 CPC, either
allowing or rejecting the application. The first appellate Court has considered the
application as if it was one under Order 13 Rule 1 CPC and not under Order 41 Rule
27 CPC. The High Court ought to have therefore interfered in the matter by raising an
appropriate question of law. It failed to do so. The judgments, therefore, call for
interference.
5. We, therefore, allow this appeal and set aside the judgment and decree of the
High Court and first appellate Court and remand the matter to the first appellate
Court with a direction to consider and dispose of the application under Order 41 Rule
27 CPC in accordance with law and then decide the first appeal.
...........................J.
( R.V. RAVEENDRAN )
New Delhi; ...........................J.
August 18, 2008. ( P. SATHASIVAM )
