AKHILESH SINGH @ AKHILESHWAR SINGH versus LAL BABU SINGH & ORS. on 21 February 2018

[2018] 1 S.C.R. 1085

AKHILESH SINGH @ AKHILESHWAR SINGH

v.

LAL BABU SINGH & ORS.

(Civil Appeal No. 2108 of 2018)

FEBRUARY 21, 2018

[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]

Code of Civil Procedure, 1908:

Or. LXI, r.2 proviso and r.27 – Additional evidence – Inappellate court – Accepted and simultaneously judgmentpronounced in the main case, without giving opportunity to theopposite party to lead evidence in rebuttal or to give an opportunityto explain – Held: Proviso to r. 2 of Order LXI engrafts rule ofnatural justice and fair play, by providing that the court is obligedto grant a sufficient opportunity to the contesting party, if any newground is allowed, which may affect the contesting party – In thepresent case High Court (appellate court) in the interest of justice,was obliged to grant opportunity to the respondents in the appealeither to lead evidence in rebuttal or to explain the alleged admissionsin the additional documents – Matter remitted to High Court todecide the appeal afresh after giving opportunity to opposite partyto lead evidence in rebuttal – Principles of Natural Justice.

Allowing the appeal, the Court

HELD: 1. Order LXI, Rule 27 of the CPC, which dealswith the provision of additional evidence in Appellate Courtprovides for the grounds and circumstances on which theAppellate Court may allow such evidence or documents orwitnesses to be examined. Order LXI, Rule 27 sub-rule(2)further provides that wherever additional evidence is allowed tobe produced by an Appellate Court, the court shall record areason for its admission. Order LXI, Rule 27 is silent as to theprocedure to be adopted by the High court after admission ofadditional evidence. Whether after admission of additionalevidence, it is necessary for the Appellate Court to grantopportunity to the other party to lead evidence in rebuttal or to

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Agive any opportunity is not expressly provided in Order LXI,Rule 27. [Para 11] [1092-A-C]

2. Order LXI, Rule 2 CPC provides that the appellant shallnot, except by leave of the court, be allowed to urge any groundin the appeal, which is not set forth in the memorandum of appeal.BThe proviso to Order LXI, Rule 2 engrafts a rule, which obligedthe Court to grant a sufficient opportunity to the contesting party,if any new ground is allowed to be urged by another party, whichmay affect the contesting party. The provision engrafts rule ofnatural justice and fair play that contesting party should be givenopportunity to meet any new ground sought to be urged. WhenCAppellate Court admits the additional evidence under Order LXI,Rule 27, there is no reason for not following the same course ofgranting an opportunity to the contesting party, which may beaffected by acceptance of additional evidence. [Para 13] [1092-F- G]

D3. In the present case, additional evidence, which werebrought on the record were registered sale deeds, which wereexecuted by present appellant and his other co-sharers and whatwas relied before the High Court was that the appellant admittedin the sale deeds that the partition has been taken place in thefamily. The main issue in the First Appeal before the High CourtEwas as to whether the finding of the trial court that no partition bymetes and bounds taken place in the family is correct or not.The additional evidence which was admitted has been relied bythe High Court while allowing the appeal. It was in the interestof justice that High Court ought to have allowed opportunity toFthe plaintiffs, who were respondents to the First Appeal to eitherlead an evidence in rebuttal or to explain the alleged admissionsas relied by the defendants. [Para 13] [1093-A-B]

4. The mere fact that no counter affidavit was filed to theI.A.s was not decisive. Since I.A.s having not been admitted,Goccasion for counter affidavit did not arise at any earlier point oftime. The High Court on the same day, has allowed the I.A.s aswell as the First Appeal. The fact that contesting respondents tothe First Appeal, were not represented at the time of hearing ofthe First Appeal, was not a reason for not giving opportunity tothem to lead evidence in rebuttal. [Para 13] [1093-C-D]H

5. The submission of the learned counsel for therespondents that execution of sale deeds was never denied bythe present appellant before the High Court, hence no error hasbeen committed by the High Court in relying on the contents inthe sale deed cannot be accepted. Even if, execution of saledeeds was not denied, the Appellate Court before which anystatement in sale deeds is relied, ought to have given anopportunity to lead evidence in rebuttal or to explain theadmission. Opportunity to explain the admission contained inthe sale deeds was necessary to be given to the contesting partyin the facts of the present case. The High Court erred insimultaneously proceeding with the hearing of the appeal afteradmitting additional evidence on record. The High Court oughtto have given opportunity to contesting respondents in the FirstAppeal to lead evidence in rebuttal or to explain the allegedadmission as contained in the sale deed, which having not beendone, the order and judgment of the High Court deserves to beset aside. [Para 16] [1095-A-C]

Land Acquisition Officer, City Improvement Trust Boardv. H. Narayaniah & Ors. (1976) 4 SCC 9 : [1977] 1SCR 178 ; Shalimar Chemical Works Limited v. SurendraOil and Dal Mills (Refineries) & Ors. (2010) 8 SCC423 : [2010] 10 SCR 703 – relied on.

Case Law Reference

[1977] 1 SCR 178 relied onPara 14[2010] 10 SCR 703 relied onPara 15CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2108of 2018.

From the Judgment and Order dated 08.03.2017 of the High Courtof Judicature at Patna in First Appeal No.704 of 1976.

Moni Cinmoy, Arvind Kr. Pandey, Rakesh Kr. Singh, Ashok Anand,Advs for the appearing parties.

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AThe Judgment of the Court was delivered by ASHOK BHUSHAN, J. 1. This appeal has been filed againstthe judgment of Patna High Court dated 08.03.2017 in First Appeal No.704/1976 by which the First Appeal filed by defendants to the suit hasbeen allowed setting aside the judgment and decree of the trial courtBdecreeing the partition suit.

2. The brief facts of the case which need to be noted for decidingthis appeal are:- Title Suit No. 406/1973 was filed by one Sheo Prasad SinghC(Grandfather of appellant before us) and his three sons seeking partitionof their 1/4[th] share in joint family properties described in Schedule B, Cand D of the plaint. In the plaint, it was pleaded that plaintiffs anddefendants are descendants of a common ancestor. Kalpoo Singh hadfour sons. Plaintiffs represented branch of Sheo Prasad Singh whereasdefendants represented other three branches.D

It was pleaded that there was a disruption in the joint family inor around 1963. Whereafter, all the branches of Kalpoo Singh separatedin their mess, business and worship but cultureable land and residentialhouses remained joint. Order passed by Commissioner, Patna Divisionarising out of a proceeding for mutation on respective land was also inEquestion. Trial court vide its judgment and decree dated 10.08.1976decreed the suit of the plaintiff declaring 1/4[th] share of the plaintiff in theproperties described in Schedule B, C and D. The defendants Lal BabuSingh & Ors. filed First Appeal No. 704 of 1976 against the judgmentand decree of the trial court. During pendency of the First Appeal, theFdefendants-respondents, who were appellant in First Appeal, filed variousapplications under Order LXI Rule 27 Code of Civil Procedure foracceptance of additional evidence in the First Appeal. The first applicationunder Order LXI Rule 27 was filed on 27.10.1997 for accepting a SaleDeed dated 27.08.1992 on the record. Other applications filed foraccepting additional evidence were I.A. No. 6457 of 1998, I.A. No.G3731 of 2011 and I.A. No. 5195 of 2016. High Court has passed anorder on the I.A.s that applications shall be heard at the time of hearingof the appeal. The First Appeal came to be heard by the High Court on08.03.2017. At the time of hearing, unfortunately, nobody appeared onbehalf of appellant, who was respondent in the First Appeal. The HighCourt after hearing the learned counsel for the defendants-respondentsH

allowed I.A. No. 6457 of 1998, I.A. No. 3731 of 2011 and I.A. No. 5195of 2016 by accepting the additional evidence, which was sought to bebrought on record. Simultaneously, the High Court proceeded with thehearing of the appeal and relying on additional evidence allowed theFirst Appeal setting aside the judgment and decree of the trial court.The appellant aggrieved by the judgment of the High court has come upin this appeal.

3. Learned counsel for the appellant contended that in event theHigh Court decided to admit the additional evidence under Order XLIRule 27 CPC, the High Court ought to have given opportunity to theplaintiff-respondent to rebut the additional evidence brought on recordby the defendants. The High Court having not given any such opportunityto plaintiff has committed serious error of procedure, which has causedgreat prejudice to present appellant vitiating the entire judgment of theHigh Court. It is submitted that the High Court in the additional evidencehas relied on certain admissions by the appellant and other co-sharerswhereas the appellant was not given any opportunity by the Court tolead evidence in rebuttal and explain the additional evidence relied bydefendants-respondents. Learned counsel submits that the reliance onsuch additional evidence without giving opportunity to lead evidence inrebuttal had vitiated the entire procedure adopted by the High Court,vitiating the judgment and decree of the High Court.

4. Learned counsel for the respondents refuting the submissionof the counsel for appellant contends that the High Court has rightlyrelied on the admissions contained in the additional evidence, which wasadmitted by the High Court since although respective I.A.s were filedlong before but neither any counter affidavit to the I.A.s nor anyexplanations were ever submitted by the plaintiff appellant. The HighCourt thus has no choice except to proceed to decide appeals relying onthe additional evidence admitted in the Court. It is submitted that theexecution of sale deeds which were relied, was never disputed nor thestatements contained in the sale deeds were even disputed by plaintiff-appellant before the High Court. Hence, no error has been committedby the High Court in relying on the additional evidence. He submits thatthe High Court itself has noticed in the order that I.A.s filed by defendants-respondents for accepting additional evidence were never objected byfiling a counter affidavit by the plaintiff.

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5. Learned counsel further submits that there being clearadmissions in the sale deeds, which were brought on the record thatthere has been partition in the family, suit of the plaintiff for partition hasrightly been dismissed.

6. We have considered the submissions of the learned counsel forBthe parties and perused the records.

7. The submission which has been pressed before us by the learnedcounsel for the appellant that the High Court ought to have grantedopportunity to the plaintiffs-appellants, who were respondents in the FirstAppeal before the High Court after accepting the additional evidence asCprayed by defendant-appellant in the First Appeal; we thus confine ourconsideration to this issue alone.

8. The record reveals that additional evidence, which was soughtto be taken on record by the defendants, who were appellants beforethe High Court were all the evidences, which came into existence afterDthe decree of the trial court. The applications filed under OrderLXI Rule 27 CPC have been considered by the High Court in Paragraphs22 to 25 of its judgment. The application dated 27.10.1997 having beenrejected by the High Court, no further comment is needed. After referringto the other I.A.s in Paragraphs 23, 24 and 25 of the judgment, the HighCourt allowed the three I.A.s, namely, I.A. No. 6457 of 1998, I.A. No.E3731 of 2011 and I.A. No. 5195 of 2016 and relying on the additionalevidence, brought on the record and referring to admissions in the saiddocuments, the High Court has allowed the First Appeal by setting asidethe judgment and decree of the trial court. In Para 26, 30 and 31, followinghas been stated:-F

“26. It may be mentioned here that all these documents were notavailable during the trial and moreover, these documents are thedocuments of the plaintiffs-respondents and the appellants had noknowledge earlier. During the pendency of this appeal, these docu-ments have been executed by the plaintiffs-respondents whereinGthey clearly admitted the previous partition between four branchesi.e. sons of Kalpoo Singh and even they admitted inter se partitionbetween themselves. It is not their statement in the sale deeds orthe plaint or the application that partition is effected after disposalof partition suit. In all the sale deeds, the application, the plaintiffs H

AKHILESH SINGH @ AKHILESHWAR SINGH v. LAL BABUSINGH & ORS. [ASHOK BHUSHAN, J.]

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AKHILESH SINGH @ AKHILESHWAR SINGH v. LAL BABUSINGH & ORS. [ASHOK BHUSHAN, J.]

themselves admitted previous partition between the parties i.e.prior to institution of the suit for partition. The appellants claimedprevious partition in the year 1958-59 whereas the plaintiffsadmitted in the plaint filed by them for inter se partition that therehad already been partition between four brothers in 1965. Now,therefore, only dispute between the parties is in which year partitiontook place. It may be mentioned here that this partition suit is ofthe year 1973. Therefore, whether partition took place in 1958-59or in the year 1965, it is irrelevant because prior to the presentpartition suit the parties have already partitioned the suit property.

30. In view of my above discussion, the three I.As. filed by theappellants are hereby allowed and on the basis of the evidencesdiscussed above, I come to the conclusion that the appellants havebeen able to prove that there had already been partition as claimedby the defendants-appellants. There is no unity of title andpossession between the parties. It appears that the court belowhas not properly appreciated the evidences as discussed aboveand moreover, the documentary evidences produced by theappellants by way of additional evidences were not available duringtrial. Thus, the finding of the learned trial court is hereby reversed.

31. In the result, this First Appeal is allowed. The impugnedjudgment and decree are set aside. The plaintiffs-respondent’ssuit for partition is hereby dismissed.”

9. It is also relevant to note that the High Court in its judgment inPara 11 has stated that applications were directed to be heard at thetime of hearing and although the I.A.s had been filed long ago nor anycounter-affidavit or any reply has been filed and nobody appeared tocontrovert the case of the appellant.

10. As noticed above, the High Court while allowing the I.A.s andaccepting the additional evidence on record proceeded to pronounce thejudgment simultaneously. The question to be answered in this appeal isas to whether the High Court ought to have granted an opportunity tothe defendant-appellant, who was respondent in the First Appeal to leadevidence in rebuttal or to give an opportunity to explain the allegedadmissions, which were relied by the defendant-appellant before theHigh Court.

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A11. Order LXI Rule 27 of the CPC, which deals with the provisionof additional evidence in Appellate Court provides for the grounds andcircumstances on which the Appellate Court may allow such evidenceor documents or witnesses to be examined. Order LXI Rule 27 sub-rule(2) further provides that wherever additional evidence is allowed tobe produced by an Appellate Court, the court shall record a reason forBits admission. Order LXI Rule 27 is silent as to the procedure to beadopted by the High court after admission of additional evidence.Whether after admission of additional evidence, it is necessary for theAppellate Court to grant opportunity to the other party to lead evidencein rebuttal or to give any opportunity is not expressly provided in OrderCLXI Rule 27.

12. One provision, which is part of Order LXI, which also needsto be noted is Order LXI Rule 2, which is as follows:-

2. Grounds which may be taken in appeal.- The appellantshall not, except by leave of the court, urge or be heard in support of anyDground of objection not set forth in the memorandum of appeal; but theappellate court, in deciding the appeal, shall not be confined to the groundsof objections set forth in the memorandum of appeal or taken by leaveof the court under this rule:Provided that the Court shall not rest itsdecision on any other ground unless the party who may be affectedEthereby has had a sufficient opportunity of contesting the case on thatground.

13. Order LXI Rule 2 provides that the appellant shall not, exceptby leave of the court, be allowed to urge any ground in the appeal, whichis not set forth in the memorandum of appeal. The proviso to Order LXIFRule 2 engrafts a rule, which obliged the Court to grant a sufficientopportunity to the contesting party, if any new ground is allowed to beurged by another party, which may affect the contesting party. Theprovision engrafts rule of natural justice and fair play that contestingparty should be given opportunity to meet any new ground sought to beurged. When Appellate Court admits the additional evidence under OrderGLXI Rule 27, we fail to see any reason for not following the same courseof granting an opportunity to the contesting party, which may be affectedby acceptance of additional evidence. In the present case, additionalevidence, which were brought on the record were registered sale deeds,which were executed by present appellant and his other co-sharers and H

what was relied before the High Court was that the appellant admittedin the sale deeds that the partition has been taken place in the family.The main issue in the First Appeal before the High Court was as towhether the finding of the trial court that no partition by metes andbounds taken place in the family is correct or not. The additional evidencewhich was admitted has been relied by the High Court while allowingthe appeal. It was in the interest of justice that High Court ought to haveallowed opportunity to the plaintiffs, who were respondents to the FirstAppeal to either lead an evidence in rebuttal or to explain the allegedadmissions as relied by the defendants. The mere fact that no counteraffidavit was filed to the I.A.s was not decisive. Since I.A.s having notbeen admitted, occasion for counter affidavit did not arise at any earlierpoint of time. The High Court on the same day, i.e. 08.03.2017 hasallowed the I.A.s as well as the First Appeal. The fact that contestingrespondents to the First Appeal, who are appellant before us were notrepresented at the time of hearing of the First Appeal, was not a reasonfor not giving opportunity to them to lead evidence in rebuttal.

14. A three-Judge Bench of this Court in Land AcquisitionOfficer, City Improvement Trust Board Vs. H. Narayanaiah & Ors.,(1976) 4 SCC 9 had occasion to consider Order LXI Rule 27 in contextof admission of additional evidence by Appellate Court. This Court hadobserved that in event the High Court admits an additional evidence, anopportunity should have been given to the other party to rebut anyinference arising from its existence by leading evidence. In Para 28 ofthe judgment, following has been laid down:- “28. The Karnataka High Court had, however, not complied withprovisions of Order 41 Rule 27 of the CPC which require that anappellate court should be satisfied that the additional evidence isrequired to enable it either to pronounce judgment or for any othersubstantial cause. It had recorded no reasons to show that it hadconsidered the requirements of Rule 27 Order 41 of the CPC Weare of opinion that the High Court should have recorded its reasonsto show why it found the admission of such evidence to benecessary for some substantial reason.And if it found it necessaryto admit it, an opportunity should have been given to theappellant to rebut any inference arising from its existence byleading other evidence.”

(emphasis supplied by us)

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A15. To the same effect is another judgment of this Court in thecase of Shalimar Chemical Works Limited Vs. Surendra Oil andDal Mills (Refineries) & Ors., (2010) 8 SCC 423. In this case also,the Court had occasion to consider Order LXI Rule 27, this Court hasagain laid down that when documents are taken in additional evidence,an opportunity ought to have been given to other party to lead evidenceBin rebuttal. In the above case also, the High Court simultaneouslyproceeded to decide the appeal alongwith admitting additional evidenceon record. In Paragraphs 16 to 18 following has been laid down:-

“16. The learned Single Judge rightly allowed the appellant’s pleafor production of the original certificates of registration of tradeCmark as additional evidence because that was simply in the interestof justice and there was sufficient statutory basis for that underclause (b) of Order 41 Rule 27. But then the Single Judge seriouslyerred in proceeding simultaneously to allow the appeal and notgiving the respondent-defendants an opportunity to lead evidenceDin rebuttal of the documents taken in as additional evidence.

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17. The Division Bench was again wrong in taking the view thatin the facts of the case, the production of additional evidence wasnot permissible under Order 41 Rule 27. As shown above, theadditional documents produced by the appellant were liable to betaken on record as provided under Order 41 Rule 27(b) in theEinterest of justice. But it was certainly right in holding that theway the learned Single Judge disposed of the appeal caused seriousprejudice to the respondent-defendants. In the facts andcircumstances of the case, therefore, the proper course for theDivision Bench was to set aside the order of the learned SingleFJudge without disturbing it insofar as it took the originals of thecertificates of registration produced by the appellant on recordand to remand the matter to give opportunity to the respondent-defendants to produce evidence in rebuttal if they so desired. We,accordingly, proceed to do so.

G18. The judgment and order dated 25-4-2003 passed by the DivisionBench is set aside and the matter is remitted to the learned SingleJudge to proceed in the appeal from the stage the originals of theregistration certificates were taken on record as additionalevidence. The learned Single Judge may allow the respondent-defendants to lead any rebuttal evidence or make a limited remandHas provided under Order 41 Rule 28.”

16. The submission of the learned counsel for the respondentsthat execution of sale deeds was never denied by the present appellantbefore the High Court, hence no error has been committed by the HighCourt in relying on the contents in the sale deed cannot be accepted.Even if, execution of sale deeds was not denied, the Appellate Courtbefore which any statement in sale deeds is relied ought to have givenan opportunity to lead evidence in rebuttal or to explain the admission.Opportunity to explain the admission contained in the sale deeds wasnecessary to be given to the contesting party in the facts of the presentcase. We thus are of the opinion that the High Court erred insimultaneously proceeding with the hearing of the appeal after admittingadditional evidence on record. The High Court ought to have givenopportunity to contesting respondents in the First Appeal to lead evidencein rebuttal or to explain the alleged admission as contained in the saledeed, which having not been done, the order and judgment of the HighCourt deserves to be set aside. The High Court may now proceed todecide the appeal afresh after giving an opportunity to the presentappellant to lead evidence in rebuttal. The appeal before the High Courtbeing pending since 1976, we expect that the High Court should concludethe entire process expeditiously preferably within a period of six monthsfrom the date of production of this judgment before the High Court. Wemake it clear that we have not expressed any opinion on merits of thecase and it is for the High Court to consider the First Appeal on meritsafresh and take a decision in accordance with law. In result, this appealis allowed, judgment and decree of the High Court is set aside. TheFirst Appeal be decided by the High Court afresh as observed above.Parties shall bear their own costs.

Kalpana K. Tripathy

Appeal allowed.

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