Sanjay K. Agrawal, J@mdashBy this second appeal invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, 1908 (for short ''CPC''), the appellant/defendant No. 1 has challenged the legality and propriety of the judgment & decree dated 21.06.2002 passed by 2nd Additional Judge to the Court of District Judge, Bilaspur, in Civil Appeal No. 3-A/2002, affirming the judgment & decree dated 03.02.2001 passed by 1st Civil Judge, Class-I, Bilaspur. The substantial question of law involved, formulated and to be answered in this second appeal preferred by defendant No. 1 states as under:--
"Whether the First Appellate Court was justified in rejecting an application filed under Order 41 Rule 27 of the Code of Civil Procedure by the appellant/defendant No. 1 on 25.06.2001 without hearing the appeal on merits as the said application is to be considered at the time of hearing of the appeal on merits?"
2. In order to answer the aforesaid substantial question of law, the facts required to be noticed are as under:--
"2.1. Originally the suit property was held by late Ramgulam Kurmi Appellant/defendant No. 1 Laxman Prasad and respondent No. 1/plaintiff are sons of late Ramgularm Kurmi and plaintiff No. 2 Smt. Rajim Bai was the wife of late Ramgularm Kurmi. The respondents/plaintiff Nos. 1 and 2 Laxmi Prasad and Smt. Rajim Bai filed a suit for declaration, partition and separate possession of the suit land situated at village Birkona, Tahsil and District Bilaspur along with mesne profits against defendant No. 1 Laxman Prasad stating inter alia that each of the plaintiffs is entitled to 1/3rd share and after partition, the possession of the suit property."
3. The Trial Court after appreciating the oral and documentary evidence on record, vide its judgment dated 03.02.2001 decreed the suit and granted decree for declaration of title, partition and possession in favour of plaintiffs.
4. Being aggrieved against the judgment and decree passed by the trial Court, the defendant No. 1/appellant Laxman Prasad preferred the first appeal before the First Appellate Court. During the pendency of the first appeal, he also filed an application under Order 41 Rule 27 of the Code of Civil Procedure and sought to produce the additional documents i.e., record of rights 1954-1955 and sale deed dated 15.04.1987. The First Appellate Court vide its order dated 25.06.2001 without hearing the appeal on merit rejected the said application holding that it has been filed at appellate stage and it was within the knowledge of the defendant No. 1/appellant and thereafter, the First Appellate Court by its impugned judgment dated 21.06.2002 dismissed the appeal of the defendant No. 1 concurring with the findings of the trial Court and affirmed the decree of the trial Court. Against this impugned judgement and decree instant second appeal has been preferred, in which substantial question of law formulated is set-out in opening paragraph of this judgement.
5. Mr. Ravindra Agrawal, learned counsel appearing for the appellant/defendant No. 1 would submit that the first appellate court was absolutely unjustified in rejecting his application filed under Order 41 Rule 27 of the CPC before hearing the appeal on merits as the said application has to be considered at the time of hearing of the appeal on merits. He would further submit that the first appellate Court has committed grave legal error in rejecting the application before hearing the appeal on merits and, thereafter proceeding to hear the appeal as such order dated 25.06.2001 as well as the judgment and decree dated 21.06.2002 passed by the first appellate court deserve to be set aside on this singular ground.
6. Mr. Chandresh Shrivastava, learned counsel appearing for respondent No. 1/plaintiff would submit that the order passed by the first appellate court on application filed by the appellant/defendant No. 1 under Order 41 Rule 27 of the CPC is in accordance with law as the first appellate Court has rightly rejected the application finding no merit in the said application as the document sought to be produced was well within the knowledge of the appellant/defendant No. 1 and no interference is required by this court in the instant second appeal.
7. Mr. Akhilesh Kumar, learned counsel appearing for respondents No. 2 (a) and 2(b)/plaintiffs would submit that the first appellate court ought to have decided the application filed under Order 41 Rule 27 of the CPC after hearing the appeal on merits as such the order passed on that application and impugned judgement and decree deserves to be set-aside.
8. Order 41, Rule 27 CPC, provides as under:--
"Order 41, Rule 27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) [***]
[(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 may allow such evidence or document to be produced, or witness to be examined.
(2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission."
9. A careful reading of sub-rule (aa) of the aforesaid Order 41 Rule 27 of the CPC would show that the object of the rule is to provide an opportunity to the party who was not able to produce the evidence in the trial Court and thereby to provide an opportunity to produce the same in the appellate Court. In order to produce the documents, the conditions mentioned in sub-rule (aa) of Order 41 Rule 27 of the CPC must be satisfied to exist.
10. In the matter of
"This is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into to the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41 Rule 27 (b) CPC can be invoked. So the application under Order 41 Rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner, it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view, would be appropriate. Further, the reason given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly, set aside. The application is restored to its file. The High Court will now consider the appeal and the application and decide the matter afresh, in accordance with law."
11. Similarly in the matter of
12. Quite recently in the matter of
"49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merit so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of - additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage, or not, but it depends upon whether or not the appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial Cause. The true test, therefore, is whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect become apparent to the court.
52. Thus, from the above, it is crystal clear an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record, to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored."
13. Similarly, in
"4. Even though the position that an appellate Court is not in a position to decide whether additional evidence should be allowed in the appeal unless it is first heard on merits is clear enough on the wording of Order 41, rule 27(1) itself, the practice has grown up in the lower appellate Courts of deciding, an application under Order 41, rule 27(1) immediately after it is moved and even before hearing the appeal on merits; It is beyond comprehension how the appellate Courts are able to decide such applications when they have no idea whatsoever of the merits of the appeal. This practice must stop forthwith and no lower appellate Court should yield to the request of any party to consider its application under Order 41, rule 27(1) before the hearing of the appeal itself. The appeal must first be heard on the merits and then the lower appellate Court Should decide whether the application for production of additional evidence should or should not be allowed. If the application is allowed, then, no doubt, the appeal has to be heard again on merits after the reception of additional evidence for final disposal.
5. What has been said in relation to an application under Order 41, rule 27(1) applies equally to the disposal of an application for amendment of pleadings made at the appellate stage. The question whether a party should or should not be allowed to amend its pleadings at the appellate stage cannot in its very nature be decided unless the appeal is first heard on merits. The order of the Additional District Judge, Chhindwara, permitting the non-applicants Nos. 4 and 5 to produce additional evidence and to amend their written statement must, therefore, be set aside and the Additional District Judge must be directed to consider the said non-applicants'' application under Order 41, rule 27 and the application for amendment of the written statement after hearing the appeal on merits."
14. The principle of law enunciated in case of
15. Thus on the basis of aforesaid analysis, it is held that the application under Order 41 Rule 27 of the CPC filed during pendency of the first appeal should not be decided before hearing the appeal on merits. The appeal must be heard first on merits and then lower appellate court should consider as to whether application for production of additional evidence should be allowed or not. If the application is allowed then the appeal has to be heard again on merits after reception of additional evidence in order to decide the appeal finally.
16. Applying the principles of law laid down in the above cited cases (supra), if the facts of the case are examined, it is quite vivid that the First Appellate Court had taken up the application filed under Order 41 Rule 27 of the CPC for consideration prior to hearing the first appeal on merits and rejected the said application by order dated 25.06.2001 and thereafter heard the appeal on merits on 18.06.2002 and pronounced the judgment on 21.06.2002. Such procedure adopted by the trial Court is in teeth of the object and scheme of Order 41 Rule 27 of the CPC as well as binding decisions rendered by their Lordships of the Supreme Court in the aforesaid cases (supra).
17. In the light of the aforesaid discussion, I am of the considered opinion that the order passed by the First Appellate Court on 25.06.2001 rejecting the application filed under Order 41 Rule 27 of the CPC before hearing the appeal on merits, is unsustainable and contrary to law and consequently, the order dated 25.06.2001 as well as the judgment and decree passed by the First Appellate Court on 21.06.2002 deserve to be set aside. Thus the substantial question of law is answered in the manner indicated hereinabove.
18. Accordingly, the second appeal is allowed in part. The order passed by the First Appellate Court dated 25.06.2001 and the impugned judgment and decree is hereby set aside. The first appeal as Well as the application under Order 41 Rule 27 CPC is restored to its original number in the said court for hearing and disposal in accordance with law. Taking note of the fact that the first appeal is of year 2002, the said court is directed to hear and decide the appeal within four months from the date of receipt of copy of this order. Parties are directed to appear before the First Appellate Court on 13.05.2015. Records of the court below be sent back forthwith. A decree be drawn up accordingly. No order as to cost(s).
