SUNIL PARASHAR Vs. KAPIL KHANNA

JUDGEMENT

(1.) This appeal filed under Order 43, Rule 1 (u) of CPC is directed against the judgment dated 18.3.2005 passed in Civil Appeal No.24-A/03 whereby the court below has remanded the matter to the trial court by exercising powers under Order 41, Rule 23A of CPC.

(2.) Briefly stated, the facts are that the plaintiff/ respondent filed a Civil Suit No.249-A/02 before the trial court. After completion of pleadings, issues were framed and evidence was recorded. The trial court by judgment dated 30.6.2003, dismissed the said civil suit. The said judgment was called in question by filing Civil Appeal No.24-A/03. The said appeal was finally heard by the appellate court and the matter was posted for delivery of judgment. At this stage, on 16.03.2005, the appellant/ plaintiff filed an application before the court below under section 41 Rule 27 CPC. The said application was vehemently opposed by the present appellant/ defendant. The court below by impugned judgment dated 18.03.2005, set aside the judgment and decree dated 30.6.2003 and invoked the powers under Order 41, Rule 23A of CPC and remanded the matter back to the trial court with a direction to take additional evidence on record and permit the defendant to lead evidence in rebuttal. For this purpose, only one opportunity was directed to be given to the defendants. This judgment is assailed in the present appeal by contending that the documents which were sought to be produced as additional evidence were in possession of respondents No.1 and 2 during the entire trial but they wilfully avoided to produce the same before the trial court. Such documents could not have been permitted to be produced by the court below. The plaintiff was negligent and did not take necessary steps to produce and prove the relevant documents before the trial court. Thus, at appellate stage, the appellant could not have been permitted to improve his case. It is further contended that the necessary ingredients for invoking Order 41, Rule 27 CPC were not satisfied and the court below has mechanically allowed the said application.

(3.) Shri Ahilesh Jain, learned counsel for the appellant, in support of his contention relied on the judgments in the case of K.R.Mohan Reddy v. M/s Net Work Inc.-AIR 2008 SC 579, Municipal Corporation, Hyderabad v. Sunder Singh-AIR 2008 SC-2579, Murari Lal v. Ram Kumar Ojha and another-2015(1) JLJ-183 and H.V.Vedvyas Acharya v. Shiv Shankar and others-AIR 2010 (Suppl) SC 394. Lastly, reliance is placed in Syeda Rahimunnisa v. Malan Bi (Dead) by L.Rs and another etc.-AIR 2016 SC 4653. Shri Ahkilesh Jain, counsel for the appellant further contended that the court below has given a specific finding that permission to file additional evidence cannot be permitted under Rule 27(1)(a) and (aa). The court below allowed the application by treating it to be only under Rule 27(1)(b) of Order 43. He submits that the reasons assigned in the application preferred under Order 41, Rule 27 CPC do not fulfil the requirement of sub-clause (b).