Code of Civil Procedure, 1908 – Order 41 Rule 27 – 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.
Civil Suit – Appointing Court Commissioner – Retired Government Revenue Official – Spot Inspection – 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.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
[ABHAY MANOHAR SAPRE] AND [ASHOK BHUSHAN] JJ.
June 29, 2016
CIVIL APPEAL NO. 920 OF 2008
Union of India Appellant(s)
K.V. Lakshman & Ors. Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
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