Ram Chandar and 3 Others v. Banshidhar (Since Deceased) and 7 Others

Court No. - 1 Case :- MATTERS UNDER ARTICLE 227 No. - 8033 of 2023 Petitioner :- Ram Chandar And 3 Others Respondent :- Banshidhar (Since Deceased) And 7 Others Counsel for Petitioner :- Sanjay Kumar Singh Hon'ble Jayant Banerji,J.

¶1Heard learned counsel for the petitioner.

¶2This petition has been filed seeking the following relief: "(a) Set aside the impugned order dated 31.05.2023 (Annexure No.7 to the petition) passed by the District Judge, Mirzapur in Civil Appeal No.2 of 2019 (Ram Chandar & Others Vs. Banshidhar & others).

(b) Allow the application Under Order dated 02.09.2022 Under Order 41 Rule 27 C.P.C. (Annexure No. 5 to the petition) and further proceedings of Appeal No.2 of 2019 (Ram Chandar & Others Vs. Banshidhar & others) pending before the District Judge, Mirzapur may be kept in abeyance, during the pendency of the present petition before this Hon'ble Court.

(c) Restrain the defendant-respondents not to interfere in the peaceful possession of the petitioner over the plot No. 440 area 8 Biswa situated in village Sarawa, Taluka Majhwa, Pargana Kasiwar, Tehsil Sadar, District Mirzapur or may direct the parties to maintain status quo on spot.

(d) Issue any other suitable, order or direction, as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

(e) Award cost of the petition in favour of the Plaintiff-- Petitioners."

¶3It appears that the suit filed by the plaintiff-petitioner seeking a decree of declaration of a sale deed dated 16.9.2014 as void and for mandatory injunction was dismissed ex-parte by means of the judgment and order dated 23.11.2018. Annexure No. 3 to this petition is the memorandum of appeal bearing Civil Appeal No. 2 of 2018 that was filed by the petitioner in the court of the District Judge, Mirzapur. In the aforesaid appeal, the petitioner moved an application dated 2.9.2022 under Order 41 Rule 27 CPC seeking to bring on record additional evidence. By the order impugned dated

31.5.2023, the application has been rejected by the District Judge.

¶4The contention of the learned counsel for the petitioner is that the additional evidence sought to be brought on record was actually given to the previous advocate, who did not file the same, which documents were material for proper adjudication of the case. It is stated that thereafter a new advocate was engaged who looked into the documents and then moved the application dated

2.9.2022. It is stated that the application for additional evidence ought to have been allowed because there was substantial cause for the documents to be produced which would enable the appellate court to pronounce judgment. In support of his submissions, learned counsel has relied upon a judgment of the Supreme Court in the case of Shalimar Chemicals Works Ltd. Vs. Surendra Oil and Dal Mills (Refineries) and others reported in 2011 (2) AWC 1353 and a judgment of a Coordinate Bench of this Court in the case of Chaudhari Haider Hussain and others Vs. Apar Ayukt (Prashasan), Lucknow Division and others reported in 2016 (6) AWC 6492. Rule 27 of Order 41 of the CPC prohibits production of additional evidence by the parties to an appeal subject to three exceptions which are as follows: "(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined."

¶5It is not the case of the petitioner that the trial court had refused that evidence which ought to have been admitted. The petitioner was required to establish before the appellate court that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed.

¶6A perusal of the application dated 2.9.2022 reflects that the application of the petitioner was liable to be rejected on the aspect of due diligence itself which has been done by the District Judge in the impugned judgment.

¶7As far as the clause (b) of sub-section (1) of Section 27 is concerned, there is no substantial cause reflected in the application dated 2.9.2022 that would merit allowing the application. For the sake of convenience, the application dated 2.9.2022 is reproduced below: "शቦኍममानजቦኍ, सवविनय वनविवेदन हहै वकि अपቦኍल उपररो्ሹ नवे ददौरमान तहैयमारቦኍ बहस यह तथ्य ्ቚकिमाश मम आयमा वकि किकछ आविश्यकि किमागजमात जरो मकिदमम सवे सम्बनन቏ኌत हहै दमाखखिल हरोनवे सवे छछट गयमा हहै। विमादቦኍगण / अपቦኍलमानटस नवे अपनवे पछविर अख቏ኌवि्ሹमा किरो अविर नयमायमालय मम उ्ሹ सबछत किमागजमात दमाखखिल किरनवे हवेतक वदयमा गयमा थमा परनतक पछविर अख቏ኌवि्ሹमा दमारमा उक््ቈ सबछत किमागजमात दमाखखिल नहीሻ वकियमा गयमा। बमादቦኍगण / अपቦኍलमानटस किवे पछविर अख቏ኌवि्ሹमा किवे लमापरविमाहቦኍ किवे किमारण यह गलतቦኍ हहई हहै। जबवकि विमादቦኍगण / अपቦኍलमानटस दमारमा अपनवे विमादप्ቔ किवे दफमा 5 मम उलवेखि वकियमा हहै। वकि "वविविमावदत आरमाजቦኍ किवे वनस्वित लनम्बत मकिदममा किमा वनणरय वदनमााሪकि 19-7-2004 किरो हरो गयमा हहै, वकिनतक उसनवे यमानቦኍ ्ቚवतविमादቦኍ / रवेस्पमानडवेनट इस तथ्य किकी जमानकिमारቦኍ हम विमादቦኍगण / अपቦኍलमानटस किरो नहቦኍ किरमायमा।" विमादቦኍगण / अपቦኍलमानटस किवे पछविर अख቏ኌवि्ሹमा नवे उ्ሹ सबछत किमागजमात किवे दमाखखिल न किरनवे सम्बन቏ኌ मम विमादቦኍगण / अपቦኍलमानटस किरो किभቦኍ नहीሻ बतमायमा और न हቦኍ उ्ሹ सबछत किमागजमात विमापस हቦኍ वकियमा गयमा। विमादቦኍगण / अपቦኍलमानट्स किवे नयवे अख቏ኌवि्ሹमा दमारमा रमाय वदयवे जमानवे पर उ्ሹ सबछत किमागजमात किकी दकसरቦኍ नकिल पमाथरनमाप्ቔ दवेकिर नकिल ्ቚमा्቎ वकियमा गयमा और वबनमा वबलम्ब वकियवे उ्ሹ सबछत किमागजमात दमाखखिल वकियमा जमा रहमा हहै, उ्ሹ सबछत किमागजमात सवे ममाननቦኍय नयमायमालय किरो नयमाय वि वनणरय किरनवे मम किमाफकी मदद वमलवेगቦኍ। हम अपቦኍलमानट दमारमा जमानबकझकिर अविर नयमायमालय मम सबछत किमागजमात दमाखखिल किरनवे मम किरोई चकि नहीሻ किकी गयቦኍ हहै। किमास ्ቚमाथरनमाप्ቔ किवे समाथ साሪल्ሿ किमागजमात किरो दमाखखिल वकियवे जमानवे मम किरोई वबलम्वि पमायमा जमायवे तरो दफमा 5 वमयमाद किमानछन किमा फमायदमा वदयमा जमाकिर उ्ሹ सबछत किमागजमात शमामቦኍल वमखसल वकियमा जमाकिर समाቌኚय मम पढमा जमानमा जरूरቦኍ वि नयमाय साሪगत हहै। अततः वनविवेदन हहै वकि ्ቚमाथरनमाप्ቔ दवेनवे मम हहए वबलम्ब किरो दफमा 5 वमयमाद किमानछन किमा फमायदमा वदयमा जमाकिर अपቦኍल उपररो्ሹ मम ्ቚमाथቕኍगण दमारमा वफहररस्त सबछत किवे समाथ दमाखखिल सबछत किमागजमात किरो समावमल वमखसल वकियवे जमानवे किकी किकपमा किरवे। नयमाय हरोगमा।"

¶8It is pertinent to mention here that in this petition, the list of documents that was sought to be produced as additional evidence has not been enclosed. Under the circumstances, learned counsel for the petitioner cannot seek benefit of the judgments cited by him. In Shalimar Chemicals Works Ltd., the fact scenario that was considered by the Supreme Court was quite different from the present case. The Supreme Court had noticed that serious mistakes were committed in the case at all stages. It was held that the trial court should not have marked as exhibits the xerox copies of the certificates of registration of the trade mark in the face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The Supreme Court observed as follows: "12. On a careful consideration of the whole matter, we feel that serious mistakes were committed in the case at all stages. The trial court should not have "marked" as exhibits the Xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded. The learned single Judge rightly allowed the appellant's plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order XLI, Rule 27. But then the single Judge seriously erred in proceeding simultaneously to allow the appeal and not giving the defendants/respondents an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence. The Division Bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order XLI, Rule

¶27As shown above the additional documents produced by the appellant were liable to be taken on record as provided under Order XLI, Rule 27 (b) in the interest of justice. But it was certainly right in holding that the way the learned single Judge disposed of the appeal caused serious prejudice to the defendants/respondents. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned single Judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to defendants/respondents to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so. The judgment and order dated April 25, 2003 passed by the Division Bench is set aside and the matter is remitted to the learned single Judge to proceed in the appeal from the stage the original of the registration certificates were taken on record as additional evidence. The learned single Judge may allow the defendants/respondents to lead any rebuttal evidence or make a limited remand as provided under Order XLI, Rule 28."

¶9Similarly, in the case of Chaudhari Haider Hussain, two documents dated 5.12.1951 which was the original agreement and, an order dated 29.12.1951 passed by the Parganadhikari on the basis of the compromise were sought to be brought on record. After considering the aforesaid judgment in Shalimar Chemicals Works Ltd., it was held that the order and the compromise agreement of 1951 that formed part of the application that was sought to be brought on record by the application under Order 41 Rule 27 (b) CPC, ought to have been brought on record and the case was accordingly, allowed while setting aside the order rejecting the application for additional evidence.

¶10The appellate court has taken a decision with regard to the application under Order 41 Rule 27 and has applied its mind to the same. As stated above, list of documents sought to be filed by way of additional evidence has not been filed in this petition. Moreover, the appellate court has considered the aspect of due diligence while rejecting the application.

¶11Under the circumstances, no interference is called for and this petition is dismissed. Order Date :- 2.11.2023 A. V. Singh (Jayant Banerji, J.) High Court of Judicature at Allahabad