1. Namita Prasad, widow of late Vijay Prasad 2. Nivedita Kushwaha, widow of late v. Both sons of late Mangal Prasad, both resident of Holding No.428, Road No.8, Sonari
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No.255 of 2017 ------ 1. Namita Prasad, widow of late Vijay Prasad 2. Nivedita Kushwaha, widow of late Ved Prakash Kushwaha 3. Vivek Anand 4. Vishal Anand 5. Namrata Singh, wife of Amar Singh all residents of Holding No.D/125, Khutadih, Sonari East, P.O. & P.S.- Sonari, Town-Jamshedpur, Dist.-Singhbhum East 1. Ajay Kumar 2. Sanjay Kumar .... .... …. Appellants Versus Both sons of late Mangal Prasad, both resident of Holding No.428, Road No.8, Sonari West Lay Out, P.O.-Sonari, P.S.-Sonari, Town- Jamshedpur, Dist.-Singhbhum East 3. Charu Sinha, w/o Mr. Anil Sinha, resident of MIG 32A, Madhav Bagh Colony, P.O. & P.S.-Mango, Jamshedpur -832110 4. Kalavati Devi, w/o late Shailendra Singh, resident of MP Niwas, Flat No. 301, Near Siva Nursing Home, P.O. + P.S., Adityapur, Jamshedpur-831013 5. Anish Giri, s/o late Akhilesh Giri, resident of Holding No.446, Road No. 14, P.O. & P.S.-Sonari, West Layout, Jamshedpur-831011 6. Alka Gossain, w/o Vivek Gossain, resident of 241/C/H/10, APC Road, P.O. & P.S.-Cossipore, Kolkata-700004 7. M/s Tata Iron & Steel Co. (Tata Steel Ltd.), a joint stock company incorporated under the Indian Companies Act, having its register office at 24, Homi Mody Street, Fort, Mumbai and its work and place of business at Jamshedpur, Dist.-East Singhbhum .... .... .... Respondents ------ For the Appellants For the Respondents
Legal Reasoning
: Mr. Shashank Shekhar, Advocate : None ------ P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court.:- Heard the parties. 2. Though notice has validly been served upon the respondents yet no one turns up on behalf of the F.A.No. 255 of 2017 1 respondents in-spite of repeated calls. 3. This appeal has been preferred against the judgment and decree dated 30.05.2017, passed in Title (Partition) Suit No. 138 of 2011 by the learned Civil Judge (Sr. Div.)-I, Jamshedpur; by which the suit filed by the plaintiff- appellant inter alia with the prayer for preliminary decree declaring the share of the plaintiff in the Schedule ‘A’ of the suit property and for appointment of survey knowing pleader commissioner, for demarcation of the share of the plaintiff, in the suit property and for effecting final decree in terms of the preliminary decree and other consequential reliefs; was dismissed. 4. It is submitted by the learned counsel for the appellants that one of the ground for dismissal of the suit was that the daughters of the ancestor of the plaintiff namely Mangal Prasad as well as M/s TATA Iron & Steel Company (Tata Steel Ltd.), who were the necessary parties to the suit were not impleaded in the suit. It is next submitted that, the suit property being the lease hold property from Tata Iron & Steel Company, Tata Iron & Steel Company was a necessary for it to the suit and the learned Predecessor Judge, in the roster, in this court allowed the prayer for proposed amendment of the plaint by the order dated 21.09.2022 in I.A. No. 795 of 2021 and consequently the Registry has also carried out the said F.A.No. 255 of 2017 2 amendment in the copy of the plaint which was sent by the trial court; on being called for by this court. Drawing attention of this Court to I.A. No. 5908 of 2020, it is submitted by the learned counsel for the appellants that I.A. No. 5908 of 2020 has been filed with a prayer to allow the plaintiffs to adduce additional evidence by proving (i) Record of Right (ii) Letter No.TAL/KGA/S/4942 dated 19.11.1986 for the purpose to show that after death of Mangal Prasad mutation was allowed in favour of the plaintiffs and the defendants. (iii) Letter No. LAND/AKT/583 dated 12.02.2011 issued by TISCO to the effect that the suit property was still continuing in the joint name of the plaintiffs and defendants (iv) Utility Bill dated 24.01.2011 and 24.08.2017 issued by JUSCO for the purpose of establishing that the suit property stands jointly recorded in the name of the plaintiffs and the defendants. 5. It is next submitted by the learned counsel for the appellants that the said four documents were necessary documents at the inception of the institution of the suit itself; to establish the title of Mangal Prasad over the suit property and the said four documents were entrusted by the plaintiff to his counsel to bring the same on record but F.A.No. 255 of 2017 3 due to bona fide mistake on the part of the counsel representing the plaintiff in the suit at the relevant point of time during the pendency of the trial, the same could not be brought into evidence and could not be marked as exhibit and under such circumstances unless the appellants—plaintiffs is permitted to prove the said four documents by way of additional evidence, the appellants will be highly prejudiced. 6. Relying upon the judgment of Hon’ble Supreme Court of India in the case of Corporation of Madras & Anr. vs. M. Parthasarathy & Ors. reported in (2018) 9 SCC 445, paragraph nos. 15 and 19 of which reads as under:- “15. Having allowed the CMP No. 1559 of 1993 and, in our opinion rightly, 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 23-A 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. 19. In the light of the foregoing discussion and having regard to the totality of the facts of the case and to enable the parties to have full and fair trial, we consider it proper to take recourse to the powers under Order 41 Rule 23-A 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 F.A.No. 255 of 2017 4 the same time uphold that part of the order which has allowed CMP No. 1559 of 1993 filed by the plaintiffs for adducing additional evidence and remand the cases to the trial court for retrial of all the four civil suits on merits afresh.” It is submitted by the learned counsel for the appellants that for the purpose of providing an opportunity to the defendants of the suit to file any rebuttal evidence, to counter the additional evidence, to be adduced by the plaintiffs, recourse be taken to the power under Order XLI Rule 23A of the Code of Civil Procedure and the impugned judgment and decree passed by the trial court in Title (Partition) Suit No. 138 of 2011 be quashed and set aside with a direction to the trial court that a fresh judgment be passed by the trial court, after providing adequate opportunity to the plaintiffs to adduce the said additional evidence and also for providing the defendants of the suit the opportunity to put forth any rebuttal evidence to counter the additional evidence to be adduced by the plaintiff-appellants. 7. Having heard the submissions made at the Bar and after going through the materials in the record, keeping in view the fact that the Predecessor Judge , in the roster in this court, has allowed the amendment of the plaint vide order dated 21.09.2022 in I.A. No. 795 of 2021 and as the four documents as mentioned above in the considered F.A.No. 255 of 2017 5 opinion of this Court appears to be the documents which are required to arrive at the just decision in the suit and the same could not be marked as exhibit because of the laches which cannot be wholly attributed to the appellants, this Court considers it proper to exercise the power under Order XL Rule 23A of the Code of Civil Procedure to provide opportunity to the plaintiff appellant to adduce the said four documents and accordingly the judgment and decree passed in Title (Partition) Suit No. 138 of 2011 by the learned Civil Judge (Sr. Div.)-I, Jamshedpur dated 30.05.2017 is set aside. 8. The Title (Partition) Suit No. 138 of 2011 is remanded to the court of Civil Judge (Sr. Div.)-I, Jamshedpur for retrial and passing fresh judgment and decree after issuing notice to all the defendants of the Title (Partition) Suit No. 138 of 2011, affording them opportunity to file written statement, framing additional issues if necessary, adducing opportunity to the appellants to prove the four documents as mentioned above, affording opportunity to the defendants to file any evidence including rebuttal evidence to counter the additional evidence of these four documents as mentioned in this judgment and after giving the opportunity to the parties to advance argument on the merits of the suit; to pass fresh judgment and decree on the basis of the entire evidence without being influenced F.A.No. 255 of 2017 6 by the previous orders/judgment rendered in this case including this order. Because having formed an opinion to remand the suit for fresh trial, this Court has refrained from entering into the merits of the judgment. 9. The plaintiffs are directed to appear on 10.09.2024 before the Civil Judge (Sr. Div.)-I, Jamshedpur or its successor court to take further direction from the Civil Judge (Sr. Div.)-I, Jamshedpur or its successor court, in Title (Partition) Suit No. 138 of 2011. 10. Registry is directed to send a copy of the judgment along with a copy of the plaint in which amendments have been incorporated in terms of the order dated 21.09.2022 passed in I.A. No. 795 of 2021 arising out of this appeal, passed by the Predecessor Judge in the roster, in this Court; after retaining the photocopy of the same along with the record of this appeal. 11. This appeal is allowed to the aforesaid extent only. 12. The trial court is directed to conclude the trial within a year. High Court of Jharkhand, Ranchi Dated the 8th July, 2024 AFR/ Sonu-Gunjan/- (Anil Kumar Choudhary, J.) F.A.No. 255 of 2017 7