The High Court · 2022
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Civil Miscellaneous Jurisdiction) CMP No. 831 of 2022 ….......... 1. Most. Phulmani, 2. Most. Ramrati, Sl. No. 1 & 2 are widow of Late Bigeshwar Singh Choudhary, Resident of Village-Rajderwa, P.O.-Khamdih, Daltonganj, Dist.-Palamau. 3. Girja Shankar, 4. Shambhu Shankar, 5. Mahadeo Shankar, 6. Sheo Shankar, 7. Shivjee Choudhary, Sl. No.3 to7 are sons of Late Bageshwar Singh Choudhary, Resident of Village-Kargali Bazar, P.O. & P.S.-Phurso, Dist.- Bokaro. 8. Satyadeo Singh Choudhary @ Satyadeo Choudhary, Son of Late Laljee Choudhary, Resident of Village-Rajderwa, P.O.-Khamdih, P.S.- Daltonganj, Dist.-Palamau. 9. Anar Devi @ Anar Kuer, years, Wife of Bisnu Choudhary, Resident of Village Rajderwa, P.O.-Khamdih, P.S.-Daltonganj, Dist.-Palamau. .....Petitioners Versus
Legal Reasoning
1. Kodan Choudhary, Son of Late Deoki Choudhary, Resident of Village- Rajderwa, P.O.-Khamdih, P.S.-Daltonganj, Dist.-Palamau. 2. Kunj Bihari Choudhary, Son of Late Bisundeo Choudhary, Resident of Village- Rajderwa, P.O.-Khamdih, P.S.-Daltonganj, Dist.-Palamau. 3. Pato Devi, Wife of Shri Sukhdayal Choudhary & Daughter of Late Bisundeo Choudhary, Resident of Village- Ausene, P.O.- Chando, P.S.- Chainpur, Dist.-Palamau. 4. Prem Kumari, D/o Late Bisundeo Choudhary, Wife of Bharosa Choudhary, Resident of Village Rajhera Colliery, P.O.- Rajhara, P.S. Pandwa, Dist.- Palamau. 5. Mira Kumari, D/o- Late Bisundeo Choudhary, W/o-Late Asarfi Choudhary, R/o- Majhiaon, P.O. & P.S.- Majhiaon, Dist.- Garhwa. 6. Imli Kumari, D/o- Late Bisundeo Choudhary, W/o- Ghina Choudhary, R/o Village- Awasane, P.O.- Chandwa, P.S.- Chainpur, Dist.- Palamau. 7. Babita Kumari, D/O- Late Bisundeo Choudhary, W/o- Amresh Choudhary, Resident of Village- Mahuari, P.O. & P.S.- Nabinagar, Dist.-Aurangabad (Bihar). 8. Bhikhani Kumari, D/O- Late of Bisundeo Choudhary, wife of Ghina Choudhary, Resident of Village-Lesliganj, P.O. & P.S.- Lesliganj, Dist.- Palamau. 9. Shyam Bahadur Choudhary, Son of Durjan Choudhary, 10. Ravindar Choudhary, Son of Durjan Choudhary, S1. No. 9 & 10 are Resident of Village-Rajderwa, P.O.-Khamdih, P.S.- Daltonganj, Dist.-Palamau. 11. Meera Devi, Wife of Awadesh Choudhary, R/o-Satbarwa, P.O.-Satbarwa, P.S.-Daltonganj, Dist.- Palamau. 12. Ramesh Choudhary, Son of Ramdeni Choudhary 13. Prabha Devi, Wife of Manoj and Daughter of Ramdeni Choudhary, Sl. No. 12 & 13 are Resident of Village- Mahuari, P.O.-Barem, P.S.- 2 CMP No. 831 of 2022 Nabinagar, Dist.- Aurangabad, Bihar. …...Respondents ------ CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR ------- For the Petitioners For the Respondents : Mr. Niraj Kishore, Advocate : None -------- Order No.03/Dated: 3 rd March 2023 The petitioners are aggrieved of the order dated 28th July 2022 by which their application under Order 41 Rule 27 read with section 151 of the Code of Civil Procedure (in short, CPC) has been rejected. 2. The learned lower Court has held as under: “.............On hearing both sides and perusal of the record, I find that the parties to the suit approached up to the Hon'ble High Court of Jharkhand vide Second appeal no. against the preliminary decree. The instant appeal is against the final decree passed by the Ld. Court below vide final decree dated 20.12.2012 in final decree proceeding of Partition Suit no. 9 of 1985. Hon'ble Apex Court in (2012)12 Supreme Court cases, Page 642 Parasnath Rai Vrs. State of Bihar wherein it has been held that a Civil Procedure Code, 1908- S. 2(2) and Explain. Thereto, Ss, 97 & 11 and Or. 20 Rr. 6, 9 and 18- Preliminary decree vis-a-vis final decree Relative nature and scope of - Necessity of filing independent appeals against preliminary decree and final decree - Situation A i.e finality attained by preliminary decree which declares rights, title and interests of parties when no appeal is preferred there against - Such finality of preliminary decree not affected upon appeal being preferred against a final decree in the same proceedings - Situation B i.e. when appeal has been preferred against preliminary decree and appeal is pending, contrasted with- Situation A - Statute providing for complete abatement of proceedings before civil court, inter alia, in case proceeding/suit for declaration or adjudication of rights or interest is "pending" before any court/authority of first instance, appeal, reference or revision - Difference in applicability to Situation A as contrasted with Situation B - Reiterated, fundamentally, distinction between preliminary and final decree is that a preliminary decree declares right and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to directions made in preliminary decree, pursuant to which a final decree is drawn up- Further held, pendency of appeal against final decree cannot take away finality of preliminary decree not having been appealed against, which has already declared rights, title and interest of the parties. -Hence, held, that in Situation A, there is no 3 CMP No. 831 of 2022 proceeding "pending” before any court in respect of rights and interests declared/adjudicated by the preliminary decree that has attained finality - Hence statutory abatement will not apply and thus cannot wipe out declaration/adjudication of rights and interests contained in such preliminary decree - Furthermore, even pendency of appeal against final decree (when no appeal was preferred against preliminary decree), will not change the above result obtained in Situation A-On the other hand, in Situation B, if appeal against preliminary decree is pending then statutory abatement will apply and entire proceedings from their inception will be wiped out, and any declaration/adjudication contained in such preliminary decree shall also be wiped out and become non est. Since this appeal is preferred against final decree and the document upon which the petitioner relies has been obtained in the year 2012 the the instant appeal was filed in the year 2013 no reason has been assigned as to why this document was not filed at the time of filing of appeal. The ld counsel for the respondent submitted that this issue was raised in second appeal S.A. 174/1991 and there is finding of second appellate court which the Id counsel for the appellant do not deny. In the fact and circumstances and case law discussed above I find the instant petition filed on behalf of appellant u/o 41, rule 27 r/w s-151 C.P.C. dated. 02/07.2022 is not maintainable in the eye of law hence rejected.…....................” 3. Mr. Niraj Kishore, the learned counsel for the petitioners has referred to the judgment in “Union of India Vs. Ibrahim Uddin and another” (2012) 8 SCC 148, to contend that the application under Order 41 Rule 27 of the CPC has necessarily to be considered at the stage of final hearing and not before that. 4. under: In “Ibrahim Uddin”, the Hon'ble Supreme Court has held as “49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on 4 CMP No. 831 of 2022 examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court. (Vide Arjan Singh v. Kartar Singh and Natha Singh v. Financial Commr., Taxation.)” 5. No doubt any application for production of additional evidence as provided under Order 41 Rule 27 of the CPC shall be considered at the stage of final hearing in the Appeal. But then this has also to be kept in mind that the opening words of Rule 27 of Order 41 of the CPC provide that no party shall be entitled to produce additional evidence at the appellate stage. However, Rule 27 of the CPC provides three contingencies in which an application for additional evidence can be allowed at the appellate stage one of which is that if the Court finds that additional evidence is necessary for arriving at a just decision in the case the same shall be permitted. 6. However, merely because the law provides that the application for additional evidence filed under Order 41 Rule 27 of the CPC has to be decided at the stage of the final hearing, the Court is not divested of its powers to examine whether such application is a frivolous one and intended to prolong the proceedings in the Appeal. Moreover, in a proceeding of final decree preparation there is no occasion of any final hearing and while so the application under Order 41 Rule 27 of the CPC has rightly been dismissed. 7. Accordingly, CMP No. 831 of 2022 is dismissed. (Shree Chandrashekhar, J.) RKM/