This takes us to the next question in relation to
the application filed under Order 41 Rule 27 of the
Code. In our considered view, the High Court
committed another error when it rejected the
application filed by the appellant under Order 41 Rule
27 of the Code. This application, in our opinion,
should have been allowed for more than one reason.
34) First, there was no one to oppose the application.
In other words, the respondents were neither served
with the notice of appeal and nor served with the
application and hence they did not oppose the
application. Second, the appellant averred in the
application as to why they could not file the additional
evidence earlier in civil suit and why there was delay
on their part in filing such evidence at the appellate
stage. Third, the averments in the application were
supported with an affidavit, which remained
un-rebutted. Fourth, the application also contained
necessary averment as to why the additional evidence
was necessary to decide the real controversy involved
in appeal. Fifth, the additional evidence being in the
nature of public documents and pertained to suit land,
the same should have been taken on record and lastly,
the appellant being the Union of India was entitled to
legitimately claim more indulgence in such procedural
matters due to their peculiar set up and way of
working.
35) It was for all these reasons, we are of the view
that the application filed by the appellant under Order
41 Rule 27 of the Code deserved to be allowed and is
accordingly allowed by permitting the appellant to file
additional evidence.
36) Learned counsel for the respondents, however,
contended that the additional evidence is not relevant
for deciding the appeal/suit. He also urged that the
appellant has not pleaded any cause as required under
Order 41 Rule 27 to file such evidence at the appellate
stage. We are not impressed by this submission in the
light of the reasons given supra. This submission is
accordingly rejected.
37) Order 41 Rule 27 of the Code is a provision which
enables the party to file additional evidence at the first
and second appellate stage. If the party to appeal is
able to satisfy the appellate Court that there is
justifiable reason for not filing such evidence at the
trial stage and that the additional evidence is relevant
and material for deciding the rights of the parties
which are the subject matter of the lis, the Court
should allow the party to file such additional evidence.
After all, the Court has to do substantial justice to the
parties. Merely because the Court allowed one party to
file additional evidence in appeal would not by itself
mean that the Court has also decided the entire case
in his favour and accepted such evidence. Indeed once
the additional evidence is allowed to be taken on
record, the appellate Court is under obligation to give
opportunity to the other side to file additional evidence
by way of rebuttal.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 920 OF 2008
Union of India
V
K.V. Lakshman & Ors.
Abhay Manohar Sapre, J.
Dated:June 29, 2016.
Citation:AIR 2016 SC 3139,(2016) 13 SCC124
1) This appeal is filed against the final judgment
and order dated 24.06.2003 of the High Court of
Karnataka at Bangalore in R.F.A. No. 933 of 2002
whereby the High Court dismissed the appeal filed by
the appellant herein, in consequence, affirmed the
judgment and decree dated 11.12.2001 passed by the
Ist Additional City Civil and Sessions Judge, Bangalore
in O.S. No. 5588 of 1976.
2) In order to appreciate the controversy involved in
the appeal, which lies in a narrow compass, it is
necessary to state few relevant facts.
3) The appellant - Union of India (Divisional Railway
Manager, Bangalore) is the plaintiff whereas the
respondents are the defendants in the suit.
4) The dispute in this case relates to a plot of land
situated near Krishnarajapuram Railway Station,
which is around 14 KMs away from Bangalore citydetails
of which are mentioned in the plaint (herein
after referred to as "the suit land”).
5) The appellant filed the suit bearing Civil Suit No.
5588/1976 against the respondents in the Court of Ist
Additional City Civil and Session Judge, Bangalore for
a declaration that they (appellant) are the owners of
the suit land and that the respondents whose
ancestral claims to have interest in the suit land have
no right, title and interest in the suit land. The
appellant in order to prove their title over the suit land
filed certain documents.
6) The respondents filed their written statements
and while denying the appellant’s title asserted their
own title over the suit land through their predecessors.
According to them, their predecessors acquired
occupancy rights under the State Tenancy Laws over
the suit land in revenue proceedings. It was contended
that by virtue of these proceedings, their ancestral
acquired superior title over the suit land to the
exclusion of every one including the appellant and the
same devolved on them after the death of their
predecessor in title. The respondents also raised a plea
that the suit is barred by limitation. The Trial Court on
the basis of the pleading framed issues arising in the
civil suit. Parties adduced evidence.
7) Therefore, the dispute that essentially arose
between the parties was who is the owner of the suit
land-the appellant (Union of India-Railways) or the
respondents’ predecessor in title?
8) The Trial Court vide judgment/decree dated
11.12.2001 dismissed the suit on two grounds. It was
held that the suit is barred by limitation. It was further
held that the plaintiff (the appellant) failed to prove
their title over the suit land for want of adequate
evidence whereas the defendants (respondents) were
able to prove their title over the suit land.
9) The appellant, felt aggrieved, filed first appeal
before the High Court. In the appeal, the appellant
filed an application under Order 41 Rule 27 of the
Code of Civil Procedure, 1908 (hereinafter referred to
as “the Code”) and sought permission to adduce
additional evidence in support of their case. The
additional evidence inter alia consisted of documents
issued by the State Land Revenue department in
relation to the suit land. According to the appellant,
these documents were relevant and material for
deciding the ownership issue and if properly examined
along with the documents already filed in the suit,
would establish the appellant's title over the suit land
to the exclusion of every one including the
respondents. It was further alleged that the appellant
was not able to file these documents in the Trial Court
because firstly, these documents were old; Secondly,
the appellants came to know of these documents after
the decision was rendered in the civil suit; and lastly,
since the documents were traced recently with great
difficulty and being in the nature of public documents,
the appellant be allowed to file them so as to enable
the Court to properly decide the issue of ownership in
relation to the suit land.
10) The learned Single Judge, by impugned judgment
running into 50 pages, dismissed the appellant's first
appeal in limine and, in consequence, upheld the
judgment/decree of the Trial Court. The learned
Single Judge also dismissed the application filed by
the appellant under Order 41 Rule 27 of the Code
holding that firstly, the cause mentioned in the
application as to why the additional evidence could not
be filed in the civil suit before the Trial Court is not
sufficient cause and secondly, the additional evidence
sought to be tendered is neither material nor relevant.
Felt aggrieved, the plaintiff has filed this appeal by way
of special leave before this Court.
11) Heard Mr. S.N. Terdal, learned counsel for the
appellant and Mr. P.P. Singh, learned counsel for the
respondents.
12) Learned counsel for the appellant while assailing
the legality and correctness of the impugned judgment
urged several grounds and submitted that the High
Court (Single Judge) erred in dismissing the
appellant's first appeal in limine, so also erred in
dismissing the application filed under Order 41 Rule
27 of the Code.
13) Firstly, learned counsel urged that the appeal
being in the nature of first appeal under Section 96 of
the Code should have been admitted for final hearing
almost as of right unlike the second appeal which is
not admitted for final hearing unless it involves some
substantial question of law. Learned counsel urged
that had the appeal been admitted for final hearing,
then the High Court would have been able to go into
all questions of facts and law in its first appellate
jurisdiction by party and come to a conclusion
different from that of the Trial Court.
14) Secondly, learned counsel urged that since a
right to file the first appeal is a valuable legal right,
such right could not be taken away by the High Court
in a casual manner by dismissing the appellant's first
appeal in limine.
15) Thirdly, learned counsel urged that both the
Courts below erred in dismissing the appellant's suit
on the ground of limitation and on the ground of
insufficiency of evidence adduced by the appellant to
prove their ownership over the suit land. Both the
findings, according to learned counsel, are factually
and legally unsustainable and against the record of
the case.
16) Fourthly, learned counsel urged that the High
Court further erred in rejecting the application made
by the appellant under Order 41 Rule 27 of the Code.
According to learned counsel, the application made
under Order 41 Rule 27 deserved to be allowed on the
grounds set out therein as also keeping in view the
nature of documents filed along with the application.
Learned counsel pointed out that the additional
evidence sought to be adduced was relevant for
deciding the issue of ownership of the parties over the
suit land and hence, the same should have been taken
on record of the case for determining the ownership
rights of the parties in accordance with law.
17) Fifthly, learned counsel pointed out that the
approach of the High Court while dismissing the
application was faulty because the High Court while
considering the application virtually appreciated the
additional evidence on merits and found that the
documents were not relevant. Such approach
according to learned counsel was not permissible at
the time of considering the application.
18) In reply, learned counsel for the respondents
supported the impugned judgment and prayed for its
upholding. According to learned counsel, no case was
made out to interfere in the impugned judgment.
19) Having heard the learned counsel for the parties
and on perusal of the record of the case, we find force
in the submissions urged by the learned counsel for
the appellant.
20) As rightly argued by the learned counsel for the
appellant, the High Court should not have dismissed
the appeal in limine but in the first instance should
have admitted the appeal and then decided finally
after serving notice of the appeal on the respondents.
21) We also find from the record that on the one
hand, the learned Judge observed that the appeal has
“absolutely no arguable point" and on the other hand to
support these observations, the learned Judge devoted
50 pages. This itself indicated that the appeal involved
arguable points.
22) It is a settled principle of law that a right to file
first appeal against the decree under Section 96 of the
Code is a valuable legal right of the litigant. The
jurisdiction of the first appellate Court while hearing
the first appeal is very wide like that of the Trial Court
and it is open to the appellant to attack all findings of
fact or/and of law in first appeal. It is the duty of the
first appellate Court to appreciate the entire evidence
and may come to a conclusion different from that of
the Trial Court.
23) Similarly, the powers of the first appellate Court
while deciding the first appeal are indeed well defined
by various judicial pronouncements of this Court and
are, therefore, no more res integra. It is apposite to
take note of the law on this issue.
24) As far back in 1969, the learned Judge – V.R.
Krishna Iyer, J (as His Lordship then was the judge of
Kerala High Court) while deciding the first appeal
under Section 96 of the CPC in Kurian Chacko vs.
Varkey Ouseph, AIR 1969 Kerala 316, reminded the
first appellate Court of its duty to decide the first
appeal. In his distinctive style of writing with subtle
power of expression, the learned judge held as under:
“1. The plaintiff, unsuccessful in two
Courts, has come up here aggrieved by the
dismissal of his suit which was one for
declaration of title and recovery of
possession. The defendant disputed the
plaintiff's title to the property as also his
possession and claimed both in himself. The
learned Munsif, who tried the suit, recorded
findings against the plaintiff both on title and
possession. But, in appeal, the learned
Subordinate Judge disposed of the whole
matter glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact
ordinarily and therefore a litigant is entitled
to a full and fair and independent
consideration of the evidence at the appellate
stage. Anything less than this is unjust to
him and I have no doubt that in the present
case the learned Subordinate Judge has fallen
far short of what is expected of him as an
appellate Court. Although there is furious
contest between the counsel for the appellant
and for the respondent, they appear to agree
with me in this observation…..”
(Emphasis supplied)
25) This Court also in various cases reiterated the
aforesaid principle and laid down the powers of the
appellate Court under Section 96 of the Code while
deciding the first appeal.
26) We consider it apposite to refer to some of the
decisions.
27) In Santosh Hazari vs. Purushottam Tiwari
(Deceased) by L.Rs. (2001) 3 SCC 179, this Court held
(at pages 188-189) as under:
“.……..the appellate court has jurisdiction to
reverse or affirm the findings of the trial
court. First appeal is a valuable right of the
parties and unless restricted by law, the
whole case is therein open for rehearing both
on questions of fact and law. The judgment of
the appellate court must, therefore, reflect
its conscious application of mind and record
findings supported by reasons, on all the
issues arising along with the contentions put
forth, and pressed by the parties for decision
of the appellate court……while reversing a
finding of fact the appellate court must come
into close quarters with the reasoning
assigned by the trial court and then assign its
own reasons for arriving at a different
finding. This would satisfy the court hearing
a further appeal that the first appellate court
had discharged the duty expected of
it…………”
28) The above view was followed by a three-Judge
Bench decision of this Court in Madhukar & Ors. v.
Sangram & Ors.,(2001) 4 SCC 756, wherein it was
reiterated that sitting as a court of first appeal, it is
the duty of the High Court to deal with all the issues
and the evidence led by the parties before recording its
findings.
29) In H.K.N. Swami v. Irshad Basith,(2005) 10
SCC 243, this Court (at p. 244) stated as under: (SCC
para 3)
“3. The first appeal has to be decided on
facts as well as on law. In the first appeal
parties have the right to be heard both on
questions of law as also on facts and the first
appellate court is required to address itself to
all issues and decide the case by giving
reasons. Unfortunately, the High Court, in
the present case has not recorded any finding
either on facts or on law. Sitting as the first
appellate court it was the duty of the High
Court to deal with all the issues and the
evidence led by the parties before recording
the finding regarding title.”
30) Again in Jagannath v. Arulappa & Anr., (2005)
12 SCC 303, while considering the scope of Section 96 of
the Code of Civil Procedure, 1908, this Court (at pp.
303-04) observed as follows: (SCC para 2)
“2. A court of first appeal can reappreciate
the entire evidence and come to a different
conclusion……...”
31) Again in B.V Nagesh & Anr. vs. H.V.
Sreenivasa Murthy, (2010) 13 SCC 530, this Court
taking note of all the earlier judgments of this court
reiterated the aforementioned principle with these
words:
“3. How the regular first appeal is to be
disposed of by the appellate court/High Court
has been considered by this Court in various
decisions. Order 41 CPC deals with appeals
from original decrees. Among the various
rules, Rule 31 mandates that the judgment of
the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is
reversed or varied, the relief to which the
appellant is entitled.
1Page 15
4. The appellate court has jurisdiction to
reverse or affirm the findings of the trial
court. The first appeal is a valuable right of
the parties and unless restricted by law, the
whole case is therein open for rehearing both
on questions of fact and law. The judgment of
the appellate court must, therefore, reflect
its conscious application of mind and record
findings supported by reasons, on all the
issues arising along with the contentions put
forth, and pressed by the parties for decision
of the appellate court. Sitting as a court of
first appeal, it was the duty of the High Court
to deal with all the issues and the evidence
led by the parties before recording its
findings. The first appeal is a valuable right
and the parties have a right to be heard both
on questions of law and on facts and the
judgment in the first appeal must address
itself to all the issues of law and fact and
decide it by giving reasons in support of the
findings. (Vide Santosh Hazari v.
Purushottam Tiwari, (2001) 3 SCC 179 at p.
188, para 15 and Madhukar v. Sangram,
(2001) 4 SCC 756 at p. 758, para 5.)
5. In view of the above salutary principles, on
going through the impugned judgment, we feel
that the High Court has failed to discharge the
obligation placed on it as a first appellate court.
In our view, the judgment under appeal is
cryptic and none of the relevant aspects have
even been noticed. The appeal has been decided
in an unsatisfactory manner. Our careful perusal
of the judgment in the regular first appeal
shows that it falls short of considerations which
are expected from the court of first appeal.
Accordingly, without going into the merits of
the claim of both parties, we set aside the
impugned judgment and decree of the High
Court and remand the regular first appeal to the
High Court for its fresh disposal in accordance
with law.”
1Page 16
32) The aforementioned cases were relied upon by
this Court while reiterating the same principle in
State Bank of India & Anr. vs. Emmsons
International Ltd. & Anr., (2011) 12 SCC 174.
33) This takes us to the next question in relation to
the application filed under Order 41 Rule 27 of the
Code. In our considered view, the High Court
committed another error when it rejected the
application filed by the appellant under Order 41 Rule
27 of the Code. This application, in our opinion,
should have been allowed for more than one reason.
34) First, there was no one to oppose the application.
In other words, the respondents were neither served
with the notice of appeal and nor served with the
application and hence they did not oppose the
application. Second, the appellant averred in the
application as to why they could not file the additional
evidence earlier in civil suit and why there was delay
on their part in filing such evidence at the appellate
stage. Third, the averments in the application were
supported with an affidavit, which remained
un-rebutted. Fourth, the application also contained
necessary averment as to why the additional evidence
was necessary to decide the real controversy involved
in appeal. Fifth, the additional evidence being in the
nature of public documents and pertained to suit land,
the same should have been taken on record and lastly,
the appellant being the Union of India was entitled to
legitimately claim more indulgence in such procedural
matters due to their peculiar set up and way of
working.
35) It was for all these reasons, we are of the view
that the application filed by the appellant under Order
41 Rule 27 of the Code deserved to be allowed and is
accordingly allowed by permitting the appellant to file
additional evidence.
36) Learned counsel for the respondents, however,
contended that the additional evidence is not relevant
for deciding the appeal/suit. He also urged that the
appellant has not pleaded any cause as required under
Order 41 Rule 27 to file such evidence at the appellate
stage. We are not impressed by this submission in the
light of the reasons given supra. This submission is
accordingly rejected.
37) Order 41 Rule 27 of the Code is a provision which
enables the party to file additional evidence at the first
and second appellate stage. If the party to appeal is
able to satisfy the appellate Court that there is
justifiable reason for not filing such evidence at the
trial stage and that the additional evidence is relevant
and material for deciding the rights of the parties
which are the subject matter of the lis, the Court
should allow the party to file such additional evidence.
After all, the Court has to do substantial justice to the
parties. Merely because the Court allowed one party to
file additional evidence in appeal would not by itself
mean that the Court has also decided the entire case
in his favour and accepted such evidence. Indeed once
the additional evidence is allowed to be taken on
record, the appellate Court is under obligation to give
opportunity to the other side to file additional evidence
by way of rebuttal.
38) Coming to the case, since we have allowed the
application made by the appellant under Order 41
Rule 27 of the Code and has permitted the appellant to
file additional evidence then as a necessary
consequence, the impugned order has to be set aside
and respondents are granted an opportunity to file
additional evidence in rebuttal, if they so wish to file.
39) The other inevitable consequence is that the case
has to be remanded either to the High Court for
deciding the appeal afresh on merits or to the Trial
Court for deciding the civil suit afresh on merits in
accordance with law.
40) Having regard to the nature of controversy and
the manner in which the suit/appeal was decided, we
consider it appropriate, in the interest of parties, to
remand the case to the Trial Court (District and
Sessions Judge, Bengaluru) for deciding the civil suit
afresh on merits in accordance with law.
41) In view of foregoing discussion, the appeal
succeeds and is allowed. The impugned judgment and
also the judgment/decree passed by the Trial Court
are set aside.
42) The civil suit is now restored to its file. The Trial
Court, i.e., District and Sessions Judge Bengaluru, is
directed to retry the civil suit on merits. The additional
evidence filed by the appellant is taken on record. The
respondents are afforded an opportunity to file
additional evidence in support of their case in rebuttal.
The parties are at liberty to amend their pleadings in
case, if they so wish and further adduce additional
oral evidence in support of their respective case in
addition to what has already been adduced and prove
the documents filed at the appellate stage.
43) While trying the civil suit, the Court may in its
discretion or at the instance of any party, as the case
may be, consider appointing Court Commissioner
preferably any retired government revenue official by
taking recourse to the provisions of Order 26 of the
Code to undertake spot inspection of the suit land
with a view to verify its exact location, area,
boundaries etc. keeping in view the evidence on record
in relation to the suit land.
44) The Trial Court shall decide the civil suit strictly
in accordance with law on the basis of pleadings and
the evidence adduced by the parties uninfluenced by
any observations, reasoning and the findings of the
two Courts below which stand now set aside.
45) We may also clarify that we have refrained from
recording any finding either way on the merits.
46) Since the civil suit is quite old, we direct the
District and Sessions Judge Bengaluru to decide the
civil suit expeditiously and preferably within 6 months
from the date of party’s appearance before him. Parties
to appear before the District and Sessions Judge
Bengaluru on 01.08.2016.
47) The original record of the case, if requisitioned,
be sent forthwith to the Trial Court (District and
Sessions Judge, Bengaluru) so as to reach to the
Court concerned before the date of parties appearance.
48) No costs.
.……...................................J.
[ABHAY MANOHAR SAPRE]
………..................................J.
[ASHOK BHUSHAN]
New Delhi,
June 29, 2016.
Print Page
the application filed under Order 41 Rule 27 of the
Code. In our considered view, the High Court
committed another error when it rejected the
application filed by the appellant under Order 41 Rule
27 of the Code. This application, in our opinion,
should have been allowed for more than one reason.
34) First, there was no one to oppose the application.
In other words, the respondents were neither served
with the notice of appeal and nor served with the
application and hence they did not oppose the
application. Second, the appellant averred in the
application as to why they could not file the additional
evidence earlier in civil suit and why there was delay
on their part in filing such evidence at the appellate
stage. Third, the averments in the application were
supported with an affidavit, which remained
un-rebutted. Fourth, the application also contained
necessary averment as to why the additional evidence
was necessary to decide the real controversy involved
in appeal. Fifth, the additional evidence being in the
nature of public documents and pertained to suit land,
the same should have been taken on record and lastly,
the appellant being the Union of India was entitled to
legitimately claim more indulgence in such procedural
matters due to their peculiar set up and way of
working.
35) It was for all these reasons, we are of the view
that the application filed by the appellant under Order
41 Rule 27 of the Code deserved to be allowed and is
accordingly allowed by permitting the appellant to file
additional evidence.
36) Learned counsel for the respondents, however,
contended that the additional evidence is not relevant
for deciding the appeal/suit. He also urged that the
appellant has not pleaded any cause as required under
Order 41 Rule 27 to file such evidence at the appellate
stage. We are not impressed by this submission in the
light of the reasons given supra. This submission is
accordingly rejected.
37) Order 41 Rule 27 of the Code is a provision which
enables the party to file additional evidence at the first
and second appellate stage. If the party to appeal is
able to satisfy the appellate Court that there is
justifiable reason for not filing such evidence at the
trial stage and that the additional evidence is relevant
and material for deciding the rights of the parties
which are the subject matter of the lis, the Court
should allow the party to file such additional evidence.
After all, the Court has to do substantial justice to the
parties. Merely because the Court allowed one party to
file additional evidence in appeal would not by itself
mean that the Court has also decided the entire case
in his favour and accepted such evidence. Indeed once
the additional evidence is allowed to be taken on
record, the appellate Court is under obligation to give
opportunity to the other side to file additional evidence
by way of rebuttal.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 920 OF 2008
Union of India
V
K.V. Lakshman & Ors.
Abhay Manohar Sapre, J.
Dated:June 29, 2016.
Citation:AIR 2016 SC 3139,(2016) 13 SCC124
1) This appeal is filed against the final judgment
and order dated 24.06.2003 of the High Court of
Karnataka at Bangalore in R.F.A. No. 933 of 2002
whereby the High Court dismissed the appeal filed by
the appellant herein, in consequence, affirmed the
judgment and decree dated 11.12.2001 passed by the
Ist Additional City Civil and Sessions Judge, Bangalore
in O.S. No. 5588 of 1976.
2) In order to appreciate the controversy involved in
the appeal, which lies in a narrow compass, it is
necessary to state few relevant facts.
3) The appellant - Union of India (Divisional Railway
Manager, Bangalore) is the plaintiff whereas the
respondents are the defendants in the suit.
4) The dispute in this case relates to a plot of land
situated near Krishnarajapuram Railway Station,
which is around 14 KMs away from Bangalore citydetails
of which are mentioned in the plaint (herein
after referred to as "the suit land”).
5) The appellant filed the suit bearing Civil Suit No.
5588/1976 against the respondents in the Court of Ist
Additional City Civil and Session Judge, Bangalore for
a declaration that they (appellant) are the owners of
the suit land and that the respondents whose
ancestral claims to have interest in the suit land have
no right, title and interest in the suit land. The
appellant in order to prove their title over the suit land
filed certain documents.
6) The respondents filed their written statements
and while denying the appellant’s title asserted their
own title over the suit land through their predecessors.
According to them, their predecessors acquired
occupancy rights under the State Tenancy Laws over
the suit land in revenue proceedings. It was contended
that by virtue of these proceedings, their ancestral
acquired superior title over the suit land to the
exclusion of every one including the appellant and the
same devolved on them after the death of their
predecessor in title. The respondents also raised a plea
that the suit is barred by limitation. The Trial Court on
the basis of the pleading framed issues arising in the
civil suit. Parties adduced evidence.
7) Therefore, the dispute that essentially arose
between the parties was who is the owner of the suit
land-the appellant (Union of India-Railways) or the
respondents’ predecessor in title?
8) The Trial Court vide judgment/decree dated
11.12.2001 dismissed the suit on two grounds. It was
held that the suit is barred by limitation. It was further
held that the plaintiff (the appellant) failed to prove
their title over the suit land for want of adequate
evidence whereas the defendants (respondents) were
able to prove their title over the suit land.
9) The appellant, felt aggrieved, filed first appeal
before the High Court. In the appeal, the appellant
filed an application under Order 41 Rule 27 of the
Code of Civil Procedure, 1908 (hereinafter referred to
as “the Code”) and sought permission to adduce
additional evidence in support of their case. The
additional evidence inter alia consisted of documents
issued by the State Land Revenue department in
relation to the suit land. According to the appellant,
these documents were relevant and material for
deciding the ownership issue and if properly examined
along with the documents already filed in the suit,
would establish the appellant's title over the suit land
to the exclusion of every one including the
respondents. It was further alleged that the appellant
was not able to file these documents in the Trial Court
because firstly, these documents were old; Secondly,
the appellants came to know of these documents after
the decision was rendered in the civil suit; and lastly,
since the documents were traced recently with great
difficulty and being in the nature of public documents,
the appellant be allowed to file them so as to enable
the Court to properly decide the issue of ownership in
relation to the suit land.
10) The learned Single Judge, by impugned judgment
running into 50 pages, dismissed the appellant's first
appeal in limine and, in consequence, upheld the
judgment/decree of the Trial Court. The learned
Single Judge also dismissed the application filed by
the appellant under Order 41 Rule 27 of the Code
holding that firstly, the cause mentioned in the
application as to why the additional evidence could not
be filed in the civil suit before the Trial Court is not
sufficient cause and secondly, the additional evidence
sought to be tendered is neither material nor relevant.
Felt aggrieved, the plaintiff has filed this appeal by way
of special leave before this Court.
11) Heard Mr. S.N. Terdal, learned counsel for the
appellant and Mr. P.P. Singh, learned counsel for the
respondents.
12) Learned counsel for the appellant while assailing
the legality and correctness of the impugned judgment
urged several grounds and submitted that the High
Court (Single Judge) erred in dismissing the
appellant's first appeal in limine, so also erred in
dismissing the application filed under Order 41 Rule
27 of the Code.
13) Firstly, learned counsel urged that the appeal
being in the nature of first appeal under Section 96 of
the Code should have been admitted for final hearing
almost as of right unlike the second appeal which is
not admitted for final hearing unless it involves some
substantial question of law. Learned counsel urged
that had the appeal been admitted for final hearing,
then the High Court would have been able to go into
all questions of facts and law in its first appellate
jurisdiction by party and come to a conclusion
different from that of the Trial Court.
14) Secondly, learned counsel urged that since a
right to file the first appeal is a valuable legal right,
such right could not be taken away by the High Court
in a casual manner by dismissing the appellant's first
appeal in limine.
15) Thirdly, learned counsel urged that both the
Courts below erred in dismissing the appellant's suit
on the ground of limitation and on the ground of
insufficiency of evidence adduced by the appellant to
prove their ownership over the suit land. Both the
findings, according to learned counsel, are factually
and legally unsustainable and against the record of
the case.
16) Fourthly, learned counsel urged that the High
Court further erred in rejecting the application made
by the appellant under Order 41 Rule 27 of the Code.
According to learned counsel, the application made
under Order 41 Rule 27 deserved to be allowed on the
grounds set out therein as also keeping in view the
nature of documents filed along with the application.
Learned counsel pointed out that the additional
evidence sought to be adduced was relevant for
deciding the issue of ownership of the parties over the
suit land and hence, the same should have been taken
on record of the case for determining the ownership
rights of the parties in accordance with law.
17) Fifthly, learned counsel pointed out that the
approach of the High Court while dismissing the
application was faulty because the High Court while
considering the application virtually appreciated the
additional evidence on merits and found that the
documents were not relevant. Such approach
according to learned counsel was not permissible at
the time of considering the application.
18) In reply, learned counsel for the respondents
supported the impugned judgment and prayed for its
upholding. According to learned counsel, no case was
made out to interfere in the impugned judgment.
19) Having heard the learned counsel for the parties
and on perusal of the record of the case, we find force
in the submissions urged by the learned counsel for
the appellant.
20) As rightly argued by the learned counsel for the
appellant, the High Court should not have dismissed
the appeal in limine but in the first instance should
have admitted the appeal and then decided finally
after serving notice of the appeal on the respondents.
21) We also find from the record that on the one
hand, the learned Judge observed that the appeal has
“absolutely no arguable point" and on the other hand to
support these observations, the learned Judge devoted
50 pages. This itself indicated that the appeal involved
arguable points.
22) It is a settled principle of law that a right to file
first appeal against the decree under Section 96 of the
Code is a valuable legal right of the litigant. The
jurisdiction of the first appellate Court while hearing
the first appeal is very wide like that of the Trial Court
and it is open to the appellant to attack all findings of
fact or/and of law in first appeal. It is the duty of the
first appellate Court to appreciate the entire evidence
and may come to a conclusion different from that of
the Trial Court.
23) Similarly, the powers of the first appellate Court
while deciding the first appeal are indeed well defined
by various judicial pronouncements of this Court and
are, therefore, no more res integra. It is apposite to
take note of the law on this issue.
24) As far back in 1969, the learned Judge – V.R.
Krishna Iyer, J (as His Lordship then was the judge of
Kerala High Court) while deciding the first appeal
under Section 96 of the CPC in Kurian Chacko vs.
Varkey Ouseph, AIR 1969 Kerala 316, reminded the
first appellate Court of its duty to decide the first
appeal. In his distinctive style of writing with subtle
power of expression, the learned judge held as under:
“1. The plaintiff, unsuccessful in two
Courts, has come up here aggrieved by the
dismissal of his suit which was one for
declaration of title and recovery of
possession. The defendant disputed the
plaintiff's title to the property as also his
possession and claimed both in himself. The
learned Munsif, who tried the suit, recorded
findings against the plaintiff both on title and
possession. But, in appeal, the learned
Subordinate Judge disposed of the whole
matter glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact
ordinarily and therefore a litigant is entitled
to a full and fair and independent
consideration of the evidence at the appellate
stage. Anything less than this is unjust to
him and I have no doubt that in the present
case the learned Subordinate Judge has fallen
far short of what is expected of him as an
appellate Court. Although there is furious
contest between the counsel for the appellant
and for the respondent, they appear to agree
with me in this observation…..”
(Emphasis supplied)
25) This Court also in various cases reiterated the
aforesaid principle and laid down the powers of the
appellate Court under Section 96 of the Code while
deciding the first appeal.
26) We consider it apposite to refer to some of the
decisions.
27) In Santosh Hazari vs. Purushottam Tiwari
(Deceased) by L.Rs. (2001) 3 SCC 179, this Court held
(at pages 188-189) as under:
“.……..the appellate court has jurisdiction to
reverse or affirm the findings of the trial
court. First appeal is a valuable right of the
parties and unless restricted by law, the
whole case is therein open for rehearing both
on questions of fact and law. The judgment of
the appellate court must, therefore, reflect
its conscious application of mind and record
findings supported by reasons, on all the
issues arising along with the contentions put
forth, and pressed by the parties for decision
of the appellate court……while reversing a
finding of fact the appellate court must come
into close quarters with the reasoning
assigned by the trial court and then assign its
own reasons for arriving at a different
finding. This would satisfy the court hearing
a further appeal that the first appellate court
had discharged the duty expected of
it…………”
28) The above view was followed by a three-Judge
Bench decision of this Court in Madhukar & Ors. v.
Sangram & Ors.,(2001) 4 SCC 756, wherein it was
reiterated that sitting as a court of first appeal, it is
the duty of the High Court to deal with all the issues
and the evidence led by the parties before recording its
findings.
29) In H.K.N. Swami v. Irshad Basith,(2005) 10
SCC 243, this Court (at p. 244) stated as under: (SCC
para 3)
“3. The first appeal has to be decided on
facts as well as on law. In the first appeal
parties have the right to be heard both on
questions of law as also on facts and the first
appellate court is required to address itself to
all issues and decide the case by giving
reasons. Unfortunately, the High Court, in
the present case has not recorded any finding
either on facts or on law. Sitting as the first
appellate court it was the duty of the High
Court to deal with all the issues and the
evidence led by the parties before recording
the finding regarding title.”
30) Again in Jagannath v. Arulappa & Anr., (2005)
12 SCC 303, while considering the scope of Section 96 of
the Code of Civil Procedure, 1908, this Court (at pp.
303-04) observed as follows: (SCC para 2)
“2. A court of first appeal can reappreciate
the entire evidence and come to a different
conclusion……...”
31) Again in B.V Nagesh & Anr. vs. H.V.
Sreenivasa Murthy, (2010) 13 SCC 530, this Court
taking note of all the earlier judgments of this court
reiterated the aforementioned principle with these
words:
“3. How the regular first appeal is to be
disposed of by the appellate court/High Court
has been considered by this Court in various
decisions. Order 41 CPC deals with appeals
from original decrees. Among the various
rules, Rule 31 mandates that the judgment of
the appellate court shall state:
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is
reversed or varied, the relief to which the
appellant is entitled.
1Page 15
4. The appellate court has jurisdiction to
reverse or affirm the findings of the trial
court. The first appeal is a valuable right of
the parties and unless restricted by law, the
whole case is therein open for rehearing both
on questions of fact and law. The judgment of
the appellate court must, therefore, reflect
its conscious application of mind and record
findings supported by reasons, on all the
issues arising along with the contentions put
forth, and pressed by the parties for decision
of the appellate court. Sitting as a court of
first appeal, it was the duty of the High Court
to deal with all the issues and the evidence
led by the parties before recording its
findings. The first appeal is a valuable right
and the parties have a right to be heard both
on questions of law and on facts and the
judgment in the first appeal must address
itself to all the issues of law and fact and
decide it by giving reasons in support of the
findings. (Vide Santosh Hazari v.
Purushottam Tiwari, (2001) 3 SCC 179 at p.
188, para 15 and Madhukar v. Sangram,
(2001) 4 SCC 756 at p. 758, para 5.)
5. In view of the above salutary principles, on
going through the impugned judgment, we feel
that the High Court has failed to discharge the
obligation placed on it as a first appellate court.
In our view, the judgment under appeal is
cryptic and none of the relevant aspects have
even been noticed. The appeal has been decided
in an unsatisfactory manner. Our careful perusal
of the judgment in the regular first appeal
shows that it falls short of considerations which
are expected from the court of first appeal.
Accordingly, without going into the merits of
the claim of both parties, we set aside the
impugned judgment and decree of the High
Court and remand the regular first appeal to the
High Court for its fresh disposal in accordance
with law.”
1Page 16
32) The aforementioned cases were relied upon by
this Court while reiterating the same principle in
State Bank of India & Anr. vs. Emmsons
International Ltd. & Anr., (2011) 12 SCC 174.
33) This takes us to the next question in relation to
the application filed under Order 41 Rule 27 of the
Code. In our considered view, the High Court
committed another error when it rejected the
application filed by the appellant under Order 41 Rule
27 of the Code. This application, in our opinion,
should have been allowed for more than one reason.
34) First, there was no one to oppose the application.
In other words, the respondents were neither served
with the notice of appeal and nor served with the
application and hence they did not oppose the
application. Second, the appellant averred in the
application as to why they could not file the additional
evidence earlier in civil suit and why there was delay
on their part in filing such evidence at the appellate
stage. Third, the averments in the application were
supported with an affidavit, which remained
un-rebutted. Fourth, the application also contained
necessary averment as to why the additional evidence
was necessary to decide the real controversy involved
in appeal. Fifth, the additional evidence being in the
nature of public documents and pertained to suit land,
the same should have been taken on record and lastly,
the appellant being the Union of India was entitled to
legitimately claim more indulgence in such procedural
matters due to their peculiar set up and way of
working.
35) It was for all these reasons, we are of the view
that the application filed by the appellant under Order
41 Rule 27 of the Code deserved to be allowed and is
accordingly allowed by permitting the appellant to file
additional evidence.
36) Learned counsel for the respondents, however,
contended that the additional evidence is not relevant
for deciding the appeal/suit. He also urged that the
appellant has not pleaded any cause as required under
Order 41 Rule 27 to file such evidence at the appellate
stage. We are not impressed by this submission in the
light of the reasons given supra. This submission is
accordingly rejected.
37) Order 41 Rule 27 of the Code is a provision which
enables the party to file additional evidence at the first
and second appellate stage. If the party to appeal is
able to satisfy the appellate Court that there is
justifiable reason for not filing such evidence at the
trial stage and that the additional evidence is relevant
and material for deciding the rights of the parties
which are the subject matter of the lis, the Court
should allow the party to file such additional evidence.
After all, the Court has to do substantial justice to the
parties. Merely because the Court allowed one party to
file additional evidence in appeal would not by itself
mean that the Court has also decided the entire case
in his favour and accepted such evidence. Indeed once
the additional evidence is allowed to be taken on
record, the appellate Court is under obligation to give
opportunity to the other side to file additional evidence
by way of rebuttal.
38) Coming to the case, since we have allowed the
application made by the appellant under Order 41
Rule 27 of the Code and has permitted the appellant to
file additional evidence then as a necessary
consequence, the impugned order has to be set aside
and respondents are granted an opportunity to file
additional evidence in rebuttal, if they so wish to file.
39) The other inevitable consequence is that the case
has to be remanded either to the High Court for
deciding the appeal afresh on merits or to the Trial
Court for deciding the civil suit afresh on merits in
accordance with law.
40) Having regard to the nature of controversy and
the manner in which the suit/appeal was decided, we
consider it appropriate, in the interest of parties, to
remand the case to the Trial Court (District and
Sessions Judge, Bengaluru) for deciding the civil suit
afresh on merits in accordance with law.
41) In view of foregoing discussion, the appeal
succeeds and is allowed. The impugned judgment and
also the judgment/decree passed by the Trial Court
are set aside.
42) The civil suit is now restored to its file. The Trial
Court, i.e., District and Sessions Judge Bengaluru, is
directed to retry the civil suit on merits. The additional
evidence filed by the appellant is taken on record. The
respondents are afforded an opportunity to file
additional evidence in support of their case in rebuttal.
The parties are at liberty to amend their pleadings in
case, if they so wish and further adduce additional
oral evidence in support of their respective case in
addition to what has already been adduced and prove
the documents filed at the appellate stage.
43) While trying the civil suit, the Court may in its
discretion or at the instance of any party, as the case
may be, consider appointing Court Commissioner
preferably any retired government revenue official by
taking recourse to the provisions of Order 26 of the
Code to undertake spot inspection of the suit land
with a view to verify its exact location, area,
boundaries etc. keeping in view the evidence on record
in relation to the suit land.
44) The Trial Court shall decide the civil suit strictly
in accordance with law on the basis of pleadings and
the evidence adduced by the parties uninfluenced by
any observations, reasoning and the findings of the
two Courts below which stand now set aside.
45) We may also clarify that we have refrained from
recording any finding either way on the merits.
46) Since the civil suit is quite old, we direct the
District and Sessions Judge Bengaluru to decide the
civil suit expeditiously and preferably within 6 months
from the date of party’s appearance before him. Parties
to appear before the District and Sessions Judge
Bengaluru on 01.08.2016.
47) The original record of the case, if requisitioned,
be sent forthwith to the Trial Court (District and
Sessions Judge, Bengaluru) so as to reach to the
Court concerned before the date of parties appearance.
48) No costs.
.……...................................J.
[ABHAY MANOHAR SAPRE]
………..................................J.
[ASHOK BHUSHAN]
New Delhi,
June 29, 2016.
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