SATISH CHAND SURANA versus RAJ KUMAR MESHRAM on 6 December 2021

ORDER

Leave granted.

(2) The appellant herein was the plaintiff in Civil Suit No.30A/G2017 on the file of the First Additional District Judge, Balode, and therespondent was the defendant. The parties are referred to by theirrespective ranking before the Trial Court.

(3) The plaintiff filed the said suit for specific performance of theAgreement dated 26.08.2015 said to have been executed by the defendantH

in favour of the plaintiff for sale of property No.395 and 396/1 havingarea 0.59 hectare and 0.05 hectare respectively, totally measuring 0.64Hectare situated at Village Jagtara, Patwari Halka No.22, Balode. Thesuit was proceeded ex-parte. On appreciation of the materials placedon record, the Trial Court dismissed the suit.

(4) The plaintiff filed an appeal, F.A. No.433 of 2018 before theHigh Court of Chhattisgarh challenging the aforesaid judgment. Duringthe pendency of the appeal, the plaintiff filed an application under Order41 Rule 27 of the Code of Civil Procedure (for short, ‘CPC’) forproduction of additional evidence. The High Court dismissed the appealby the impugned judgment, without considering the said application. Theplaintiff has challenged the legality and correctness of the judgment ofthe High Court in this appeal.

(5) Though notice was served on the respondent/defendant butno one has entered appearance on his behalf.

(6) Heard learned counsel for the appellant and perused thematerials placed on record.

(7) Learned counsel for the appellant-plaintiff submits that theHigh Court has dismissed the first appeal of the plaintiff without decidingthe application filed by him under Order XLI Rule 27 of the CPC, seekingpermission to adduce the additional evidence. Learned Counsel furthersubmits that the appellant has a good case on merits.

(8) It is well-settled that, ordinarily, the Appellate Court should nottravel beyond the record of the lower court. Section 107 of the CPCcarves out an exception to this general rule, enabling the Appellate Courtto take additional evidence subject to the conditions prescribed in Order41 Rule 27 of the CPC. Thus, grant or refusal of the opportunity forproduction of additional evidence at the appellate stage is within thediscretion of the appellate court. Dismissal of the main appeal withoutdeciding the application for additional evidence would result in miscarriageof justice. The First Appellate court, being the last court of facts andevidence, should permit the production of additional evidence where theexplanation furnished by the party is satisfactory and the documents inquestion are vital to establish the case.

(9) It is also necessary to observe here that the application forpermission to file additional evidence should contain the list of documentsgiving full particulars thereof and copies sought to be filed as additional A

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Aevidence should be served on the other side. However, the High Courtcannot completely ignore the application filed by the appellant andpronounce the judgment. If the appellant makes out a case for allowingthe application, the material produced along with the application has tobe considered at the time of final disposal of the appeal in accordancewith law.B

(10) In the instant appeal, it is clear that the High Court hasproceeded to dismiss the appeal without considering the application filedby the appellant-plaintiff. In our view, the High Court has to consider thematter afresh in the light of the observations made above.

(11) In the result, the appeal succeeds and is accordingly allowedin part. The judgment of the High Court impugned herein is set aside.The matter is remitted back to the High Court for fresh disposal inaccordance with law and in view of the observations made above.

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(12) Pending application(s), if any, shall stands disposed of. Therewill be no order as to costs.D

Bibhuti Bhushan Bose

Appeal partly allowed.

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