Suresh Kumar Rai v. Sonelal Rai

Patna High Court CWJC No.19625 of 2011 (7) dt.09-05-2012 of. In this case the petitioner is challenging the order dated 30.7.2011 passed in Title Appeal No.21 of 2008 by the learned 7th Additional District Judge, Muzaffarpur by which the court below has refused to admit the judgment and decree passed in Title Suit No.25 of 1998 and Title Suit No.45 of 1998 which were delivered on 6.6.2008 and 29.10.2010 respectively by way of additional evidence. Learned counsel for the petitioner submits that the disputed plot in question is related to plot nos. 168 and 169 and for that Title Suit No.25 of 1998, Title Suit No.26 of 1998, Title Suit No.45 of 1998 and Title Suit No.94 of 1998were filed. In all the suits the plaintiff is the same where as defendants are different. The present appeal is arising from Title Suit No. 94 of 1998 which was decided by the trial court on 31.1.2008. During pendency of this appeal Title Suit No.25 of 1998 and Title Suit No.45 of 1998 were decided in 2010 as has been explained hereinabove. After the judgment and decree passed in the aforesaid two suits the petitioner has filed an application that judgment and decree of the aforesaid suits be taken into additional evident as it is the subsequent event that has taken 3 Patna High Court CWJC No.19625 of 2011 (7) dt.09-05-2012 place during pendencny of the appeal. The counsel for the petitioner has drawn attention of this Court to the application filed by him vide Annexure1 to the writ petition where it has been stated about the facts why he intends to bring two judgments as additional evidence. In this case suit property is same and the plaintiff is the same where as defendants are different. He further submits that the court below has erred in not taking those two documents as additional evidence as it is very relevant for the purposes of deciding the appeal. In contra, learned counsel for the respondents has submitted that judgment and decree is not at all relevant. One judgment that has been a connived judgment and the appellate court has rightly refused to take the same as additional evidence. So much so, respondents have also submitted that the same has been filed at the argument stage so there is no justification for taking those judgment as additional evidence for the purposes of deciding this case. Further it has been argued that the judgment and decree of other suit will not be relevant for the purposes of taking there in appeal. In support of his contention learned counsel for the respondents have relied on the judgment of the Hon’ble Supreme Court in the case of Noor Sk. Bhikan Vs. State of 4 Patna High Court CWJC No.19625 of 2011 (7) dt.09-05-2012 Maharashtra and others, reported in (2011) 7 SCC 589 and in the case of Mithilesh Kumari and another Vs. Prem Behari Khare, reported in A.I.R. 1989 SC 1247. From reading of paragraph 11 of the judgment in the case of Noor Sk. Bhikan (supra) it appears that the Hon’ble Supreme Court has held that none of the parties to the appeal were parties to that suit and the subject matter of suit was quite different which has no bearing with the present appeal. The Hon’bel Supreme Court in the aforesaid circumstance has held that there was no justification for taking the judgment and decree of other case as additional evidence. In another case in the case of Mithilesh Kumari (supra) i.e. related to benami transaction case. The Hon’ble Supreme Court has held that the appellate court ought to have taken into note the subsequent event that has taken place during the pendency of the appeal. Having considered the rival contention of the parties, the court below ought to have considered the aspect of the matter about the fact that judgments and decree of Title Suit No.25 of 1998 and Title Suit No.45 of 1998 were passed during the pendency of appeal and also court below ought to have considered the relevancy of judgment and decree of the aforesaid suits in the present case where the fact has been 5 Patna High Court CWJC No.19625 of 2011 (7) dt.09-05-2012 stated in the petition filed by the petitioner under Order 41 Rule 27 of the Code of Civil Procedure that the plot in dispute in all the suits are same, plaintiff is common plaintiff and the judgment and decree has been passed during the pendencny of appeal. As the court has not decided the case on merit the order dated 30.7.2011 is set aside and matter is remanded back to consider the rival contentions of parties and to pass the order in accordance with law on the merit of the case. With the foresaid observation this writ petition is disposed of. Vinay/- (Shivaji Pandey, J)