CPC O. 41

2020   Supreme Court e@Journal

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Civil P.C. (5 of 1908), O.41 R.23A,  O.41 R.27,  O.41 R.28,  O.41 R.29,  O.41 R.25- Remand of case to trial court by High Court  - Application for permission to adduce additional evidence - High Court has not recorded any special reasons as to why the parties should be relegated before the 'Trial Court' to re-decide the suit -  The only reason, which, presumably, weighed with the High Court, is that it was necessary to find out the truth, as it is the duty of the Court -  That could be done even by directing the First Appellate Court to record evidence, which it was competent to do while hearing the first appeal - High Court could have issued directions to the First Appellate Court to determine any question of fact including the existence and genuineness of the additional evidence or for that matter, whether the contents of the said documents had been duly proved by the party relying thereon - After recording the evidence in support of such relevant matters as the High Court may have directed, the First Appellate Court could proceed to try such issues and return the evidence to the High Court together with its findings thereon within the prescribed time - Such a course was permissible in terms of Rule 28 of Order XLI of CPC, and on receipt of the report, the High Court could then consider the substantial questions of law already framed while admitting the second appeal and finally decide the same on all issues - High Court shall frame points on which the additional evidence is allowed to be produced and direct the First Appellate Court to take the additional evidence on record in accordance with law and then return the evidence to the High Court together with its findings thereon and the reasons thereof, within the prescribed time.    (2018)2 SCeJ 1631

CPC Order 41 Rule 27 – Additional evidence – Appellate court took into consideration the additional piece of evidence while deciding the appeals on merits without affording any opportunity to the appellant to file any rebuttal evidence to counter the additional evidence adduced  - This caused prejudice to the appellants herein because they suffered the adverse order from the Appellate Court on the basis of additional evidence adduced by the respondents for the first time in appeal against them – Additional evidence was not only taken on record but also relied on by the Appellate Court for allowing the appeals filed by the respondents which, in consequence, resulted in decreeing the civil suit - First Appellate Court committed jurisdictional error in allowing the appeals. (2018)2 SCeJ 1306

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Civil Procedure Code, 1908, Order 41 Rule 27, Order 41 Rule 23­A, 25 - Having allowed the application for leading additional evidence under Order 41 Rule 27 of the Civil Procedure Code, 1908 the first Appellate Court had two options - First it could have either set aside the entire judgment/decree of the Trial Court by taking recourse to the provisions of Order 41 Rule 23­A of the Code and remanded the case to the Trial Court for re­trial in the suits so as to enable the parties to adduce oral evidence to prove the additional evidence in accordance with law or  - Second, it had an option to invoke powers under Order 41 Rule 25 of the Code by retaining the appeals to itself and remitting the case to the Trial Court for limited trial on particular issues arising in the case in the light of additional evidence which was taken on record and invite findings of the Trial Court on such limited issues to enable the first Appellate Court to decide the appeals on merits -  First Appellate court failed to take note of both the above mentioned provisions and proceeded to allow the appeal wrongly – We take recourse to the powers under Order 41 Rule 23­A of the Code and accordingly set aside the judgment and decree of the first Appellate Court to the extent it allows the respondents’ appeals on merit but at the same time uphold that part of the order which has allowed application for leading additional evidence filed by the plaintiffs for adducing additional evidence and remand the cases to the Trial Court for re­trial.(2018)2 SCeJ 1306

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1. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule  4 - Being only proforma in nature was not necessary party to the litigation - He was duly impleaded in the appeal, but instead of making statement to dispense with his service, at that stage, he was given up by his counsel - Court in its jurisdiction can resort to Order 41 Rule 4 CPC and Rule 33 CPC, particularly in view of the fact that the Appellate Court can decide the appeal even if one of the plaintiff or the defendant files the appeal from the whole decree.(181) P.L.R.
2. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule  9 - Counsel could not have withdrawn the appeal without having written instructions or personal appearance, much less, statement of his client - The Court below ought not to have dismissed the application seeking recalling of the order where appeal was dismissed as withdrawn. (182) P.L.R.
3. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 19 - Appeal dismissed as counsel pleaded no instruction - Application for readmission until and unless evidence and hearing of the appeal - Every case has to be decided on its own facts - Evidence is brought on record as to why the advocate had stopped appearing on behalf of the party - Moreover, if the advocate pleads no instructions on behalf of his client at the stage of arguments, then there could be possibility that he might have connived with the other party and his integrity and credibility could also be doubtful - Appellant is an illiterate rustic villager of 72 years of age suffering from various ailments, as stated by the doctor attending to her - Appellant  is an old rustic villager who was supremely confident after paying the fee to her advocate that her interest would be watched by him as a result thereof, admittedly, she never appeared in the Court because her presence was not required in appeal and she has also averred in the application that her advocate told her that her presence is not required and she would be intimated about the decision - Petition allowed. (179) P.L.R.
4. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 22 - Cross-objections - Dismissed holding in such appeal filed by co-defendants such cross-objections are not maintainable - If a co-defendant is aggrieved with any finding or final order to extent it is against him and is integrally connected with relief claimed by him, then his right to file cross-objection is not restricted. (175) P.L.R.
5. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 23 - It is not open to the appellant to file an application under Section 5 of the Limitation Act, 1963 after nearly an year and then try to reagitate the matter which was sought to be done - In case the application seeking condonation of delay in hearing the application under Order 41 Rule 23 CPC of the appellant is allowed, it would practically tantamount to reopening the case of the appellant afresh - This cannot be permitted to be done - Even if this aspect is ignored, the allowing of the application under Order 41 Rule 23 CPC would tantamount to allowing rehearing of the matter, which cannot be permitted to be done under the garb of the said application - Limitation Act, 1963 (36 of 1963) S. 5. (177) P.L.R. (Del.)
6. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 23-A - Remand order - Decree sheet - Application to prepare decree sheet - Lower appellate Court thought it fit to exercise its jurisdiction to "advance substantive justice" to both the parties by allowing the application and directing that the decree-sheet be prepared - Decree has no legal sanctity and is not binding on the parties and is liable to be ignored - Proper remedy was to file Second Appeal from Order (SAO) against the remand order under Section 23-A of the Code - The RSA as presented is patently not maintainable. (179) P.L.R.
7. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 27, Sub-Rule 1(aa) - Additional Evidence - It is is not one of the conditions that additional evidence can be produced only by a party which must have also led some evidence in the trial Court - Such a view would amount to introducing an additional condition not contemplated by Sub-rule 1(aa) - No distinction has been made by Sub-rule 1(aa) between a party that has produced some evidence in the trial Court and one that has adduced no evidence in the trial Court - All that is required is that the conditions mentioned in Sub-rule 1(aa) must be fulfilled - It is not permissible to restrict the benefit of Sub-rule 1 (aa) of Rule 27 of Order 41 CPC, to those who have adduced some evidence in the trial Court.  (174) P.L.R.
8. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 27 - Additional evidence - Admitting the document in evidence even before the disposal of appeal is therefore, a wholly improper  procedure - Application must be taken up along with the appeal and if it finds that a party had a good reason to produce additional  evidence - procedure given. (173) P.L.R.
9. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 27 - Additional evidence - At appellate stage - Three exceptional circumstances - Additional evidence can be adduced before appellate court. (S.C.)(182) P.L.R.
10. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 27 - Additional evidence - When public cause is pitted against individual cause, then the public interest should prevail and in order to espouse the public cause, the additional evidence sought to be adduced by the respondent is required to be allowed as these documents would facilitate the Court to arrive at just conclusion and Court should require these documents in order to pronounce the judgment satisfactorily.(181) P.L.R.
11. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 27 - Application filed before the first appellate court - However, the said application was not decided and judgment and decree passed - Such an application for additional evidence was essential and most relevant for the decision - Case remanded. (183) P.L.R.
12. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 27 - Defendant  challenged the order passed by the first appellate court, allowing the application for additional evidence, before the High Court which was allowed - Regarding exercise of revisional powers in the matter of allowing the application for additional evidence, when appeal is pending before the lower appellate court, the impugned order passed by the High Court cannot be upheld and the same is set aside. (S.C.)(182) P.L.R.
13. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 27 - Not in agreement with the order of the Appellate Court, who while dismissing the application for additional evidence observed that even if the property is presumed to be included in the urban area, it would not oust the Civil Court jurisdiction from passing the decree because the suit is already pending - Appellant has only sought to produce the notification of the State of Punjab by which the Municipal limits of Mahilpur has been extended and had requested to examine the Halqa Patwari in order to prove that the demised premises has also come within the municipal limits - Since, the document sought to be produced is not coming from the custody of the appellant, therefore, it cannot be said to be fabricated document at this stage and since there is a specific pleading in the written statement that the property in dispute is not within the rural area, therefore, the additional evidence is also not beyond the pleadings - In view thereof, the application is hereby allowed.  (174) P.L.R.
14. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 27 - Order of dismissal of the application for additional evidence can be challenged in the appeal along with the main judgment. (182) P.L.R.
15. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 27 - Since implementation of scheme or otherwise as claimed by the parties to the litigation will be having impact upon overall growth of the inhabitants of the locality, therefore, this Court feels that in order to decide the controversy in an effective manner, respondent can be allowed to place on record the order passed in the writ petition as well as the details of plan of plot of persons whose sites were sanctioned during the intervening period from 1975 till 1980. (181) P.L.R.
16. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 27 - Suit for specific performance of contract - Bank accounts sought to be filed as additional documents were rejected by trial court and order was confirmed in revision - Suit was dismissed - In appeal application was filed under Order 41 Rule 27 to mark them as additional evidence - It was allowed - Held, documents not clinching to be accepted as additional evidence in exercise of jurisdiction under Order 41 Rule 27(1)(b) - Judicial propriety becomes an impediment and the present case is one where the judicial property comes on the way. (S.C.)(179) P.L.R.
17. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 27 - The disputed property is stated to be religious property belonging to Dera and its alienation is in dispute - Therefore, even if there is some negligence on the part of the functionaries of the Dera in producing some evidence but keeping in view nature of the property, the provisions of Order 41 Rule 27 CPC are not be strictly construed or enforced - In fact, the interest of the justice requires that it should be finally decided whether the property is religious property and belongs to Dera or not?   (182) P.L.R.
18. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 27 Clause 2 - Additional evidence in the Appellate Court could be permitted only if the same has been wrongly refused to be admitted by the Trial Court or if the same could not be obtained despite due diligence or the Appellate Court required such document to be produced to enable it to pronounce the judgment or for any other substantial cause - The reason assigned by the Appellate Court for accepting the affidavit was that there was no objection on the part of the appellant on it being taken on record - This is not a correct reason for the admission of a document as Clause 2 of Rule 27 of Order XLI specifically states that when additional evidence is allowed by the Appellate Court, reasons have to be recorded for the  same. (181) P.L.R. (Del.)
19. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 27(2) - Application should not be allowed by the Court without recording reasons - Court below has applied its mind to the effect that the judgment and decree of the Civil Court, which is sought to be placed on record, is essential for the decision of the controversy involved - The Court can always take document in appeal as additional evidence, for the purpose of enabling it, to deliver the judgment effectively between the  parties.
20. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 3 - Appellate Court - After going through the order, in one paragraph, appeal has been dismissed - Settled law that the lower Appellate Court, while framing points of determination, has to satisfy himself and need not give specific reasons or determine point while upholding judgment of trial Court - Order upheld.  (182) P.L.R.
21. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 33 - Compensation enhanced - Petitioner had not preferred the writ petition along with the other writ    petitioners for enhancement of compensation granted by Land Acquisition Collector - However a specific order has to be passed by the Court while deciding such petitions are without there being any specific order, the Court, while exercising the jurisdiction of a Executing Court cannot go behind the decree and see the intention of the judgment passed. (176) P.L.R.
22. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 33 - Provides that in case a party fails to file appeal within the time granted, he still has opportunity to file cross objections, in case the other party files appeal - The same have to be filed within one month from the date of service of notice on him or the pleader - Cannot be stretched in favour of a party, who does not wish to file appeal or cross objections against the issues decided against him by the court below - To be exercised in exceptional cases, otherwise general principle is that a decree passed by a court is not to be reversed in favour of a party who has not challenged the same - Land Acquisition Act, 1894 (1 of 1894). (176) P.L.R.
23. Civil Procedure Code, 1908 (V of 1908) Order 41, Rule 33 - Second Exemption - When there was no averment taken by the defendants in their pleadings, their evidence could not have been admissible - It is so said, because in the absence of pleading, no evidence is admissible - Even after having been put to notice in the appeal filed by the plaintiff, the defendants neither filed any cross appeal nor they raised such plea - In such a situation, learned lower appellate court was not required to exercise its powers under Order 41 Rule 33 CPC. (177) P.L.R.
24. Civil Procedure Code, 1908 (V of 1908) Order 41 - If a memorandum of appeal arising out from an appellate decree is not drawn up in the manner provided in the Code, the Court may reject the memorandum of appeal or return the same for the purposes of being amended within the time fixed by the Court. (S.C.)(177) P.L.R.
25. Civil Procedure Code, 1908 (V of 1908) Order 41 - Restoration of appeal - Dismissed in default - Dismissed on the ground that the petitioner appears to be a chronic defaulter - That so far as the case diary and brief of case are concerned, they are always with a counsel and he only conveys date of hearing to his party - For the fault of counsel or even other otherwise merely on technicalities, the substantive relief should not be declined specifically when the petitioner has taken measures for restoration of appeal and filed appropriate application by changing his counsel within a period of one month after obtaining certified copy of the order.  (173) P.L.R.