Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK RSA No. 604 of 2014 [In the matter of appeals under Section 100 of the Code of Civil Procedure, 1908. --------------- AFR Dusmanta Kumar Bisoi & Others ...… Appellants -Versus- Debes Chandra Nandi others ….. Respondents Advocate(s) appeared in this case :- _________________________________________________________ For Appellants : M/s. Kishore Kumar Jena, A.K. Mohapatra & S.N. Das, Advocates For Respondents: M/s. N.P. Parija, S.K. Rout, A.K. Mohanty, S. Parija, Advocates [ For R-1] __________________________________________________________ CORAM JUSTICE SASHIKANTA MISHRA JUDGMENT 11th September, 2023 SASHIKANTA MISHRA, J. The present appeal is directed against the reversing judgment passed by the learned District Judge, Cuttack in Title Appeal No. 58 of 2001 passed on 30th September, 2014 followed by decree. As per the said judgment, the ex-parte judgment passed by learned Civil Judge (Junior Division), 2nd Court, Cuttack on 31.03.2001 Page 1 of 9 followed by decree in T.S. No. 78 of 1994 in dismissing the suit ex-parte was set aside and the appeal was allowed. 2. The present appeal has been filed by the
Facts
defendants-respondents. 3. For convenience, the parties are referred to as per their respective status in the Court below. 4. The following substantial question of law has been framed by this Court while admitting the present appeal. “(i) Whether the lower appellate Court was right in allowing the petition under Order 41 rule 27 of CPC filed by the appellant before it ( who is respondent no.1 here and plaintiff in the trial Court) and by taking in deciding the appeal without giving any opportunity to the appellants to rebut the same? into consideration those documents 5. In view of the substantial question of law as framed it is not necessary to delve into the specific details of the case of the parties. It would suffice to indicate only the relevant facts. 6. The suit was filed by one Jatindra Nath Bhuyan as the plaintiff against Hemendranath Bisoi, Swarnalata Bisoi, Kusuma Kumari, Bhagabata Chatterjee, Nabina Sahoo, Narayan Patra and Damodar Ojha as defendant Nos. 1 to 7. The suit was filed for declaration of right, title, Page 2 of 9 interest and confirmation of possession of the plaintiff over the suit land. Though notice of the suit was validly served on the defendants, they did not appear for which they were set ex-parte. The plaintiff examined himself as the sole witness from his side and proved two documents. The trial Court on consideration of the oral and documentary evidence found that the plaintiff had failed to prove his title and possession over the suit property by producing the relevant documents as also the fact that the sale deed vide Ext. 1 had been acted upon and therefore, held that the plaintiff is not entitled to any relief and accordingly dismissed the suit ex-parte. 7. The plaintiff carried the matter in appeal. The original parties having expired, the appeal was prosecuted by one Debes Chandra Nandi in place of original plaintiff being substituted as per the provisions under Order-1 Rule -10 of CPC as he was a lis pendens purchaser of the suit land vide RSD dated 25.02.2009 executed by the original plaintiff, Jatindra Nath Bhuyan. Similarly, the original defendant Nos. 1 to 3 having also died, were substituted by their LRs. The defendants-respondents (including the LRs Page 3 of 9 of the deceased respondents) contested the appeal. In course of hearing of the appeal, as many as eight documents were produced by the plaintiff-appellant and admitted as additional evidence being Ext. 3 to 10. Considering the documentary evidence, the First Appellant Court found the plaintiff to have successfully established his claim over the suit property and thus, allowed the appeal by setting aside the ex-parte decree and by declaring the right, title, interest and possession of the plaintiff-appellant over the suit property. 8.
Legal Reasoning
but then it is trite law that if a party is allowed to adduce evidence, the other party must be allowed opportunity to Page 6 of 9 adduce rebuttal evidence, as was held by the Supreme Court of India in the case of Union of India v. K.V. Lakshman, reported in (2016) 13 SCC 124. As already stated, as many as eight documents were admitted into evidence from the side of the plaintiff at the appellate stage. According to the defendants he also has several documents in his favour, copies of which have been appended to the written note of arguments filed before this Court which, according to him can successfully rebut the documentary evidence, adduced by the plaintiff. It must be kept in mind that the defendants were set ex-parte and therefore, had no occasion to adduce any evidence either oral or documentary during trial. Of course, the Court cannot be blamed in this regard since the defendants had been set ex-parte for non-appearance despite valid service of notice. But then, it is significant to note that the suit was dismissed for want of adequate evidence in support of the claim of the plaintiff. While assailing the judgment of the trial Court, the plaintiff was permitted to adduce further evidence and in fact on such basis the appeal was allowed. Since the defendants had appeared and were contesting the appeal, they ought to have been granted opportunity to Page 7 of 9 rebut such evidence so that ends of justice would have been better served. The endeavor of the Court should be to ensure a level playing field for both parties and not to permit any party to take advantage of the situation in any manner over the other party. 13. Another important aspect that attracts the attention of this Court is non-compliance of the mandatory provision of Order 41, Rule 31 of CPC. inasmuch as, the First Appellate Court did not frame the points for determination in the appeal. True, the defendants were set ex-parte in the suit and therefore, no issues were struck but they had appeared and contested the appeal raising certain specific pleas. The Appellate Court took note of the rival contentions and therefore, ought to have framed specific points for determination as envisaged in the provision under Order 41, Rule-31 of CPC. 14.
Arguments
Heard Mr. Kishore Kumar Jena, learned counsel for the defendant-appellants and Mr. N.P. Parija, learned counsel for the plaintiff-respondents. 9. Mr. Jena has forcefully argued that proper procedure was not followed by the First Appellate Court inasmuch as the valuable right of the defendants to adduce rebuttal evidence was not granted. It is contended that at the time of hearing of the appeal, the plaintiff sought to admit several documents as additional evidence invoking the provision under Order 41 Rule-21 of CPC by filing a petition and a memo. The memo and petition were served Page 4 of 9 upon the counsel for the defendants, who received the same with objection but the petition was allowed by the First Appellate Court without granting time to the defendants to either file objection or to adduce rebuttal evidence. Mr. Jena, therefore, argues that valuable right of the defendants to adduce rebuttal evidence was completely taken away and therefore, the appeal must be held to have been incorrectly decided. 10. Mr. N.P. Parija, learned counsel for the plaintiff- respondents on the other hand would argue that the copy of the memo enclosing additional documents and the petition with prayer to adduce additional evidence was duly served upon the counsel for the defendants, who received the same endorsing his objection but did not come forward to actually file any objection. The First appellate Court was therefore, fully justified in allowing the petition and admitting the documents on record as additional evidence. 11. In order to appreciate the rival contentions it would be proper at the outset to keep in mind the provision under Order 41 Rule 27 of CPC which is quoted hereinbelow: Page 5 of 9 “27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be exam med. (2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission.” 12. This Court finds that the original plaintiff, despite no contest from the side of the defendants during trial chose not to file the documents in question. No plausible reason has been assigned for not filing the said documents during trial. Nevertheless the substituted plaintiff-appellant sought to introduce the documents as additional evidence at the stage of hearing of the appeal. The First Appellate Court admitted the same. This Court would not like to enter into the controversy as to whether opportunity was given to the defendants to adduce rebuttal evidence or not
Decision
For the foregoing reasons therefore, this Court is of the considered view that the plaintiff’s case having been allowed almost entirely on the basis of the documents adduced as additional evidence and defendants being in possession of documents to rebut such evidence, it would Page 8 of 9 be in the best interest of justice to allow the defendants to bring on record such rebuttal evidence so that a just and proper decision can be arrived at. 15. In the result, the appeal succeeds and is therefore, allowed. The impugned judgment and decree passed by the First Appellate Court is hereby set aside. The matter is remanded to the First Appellate Court to decide the appeal afresh after giving opportunity to the defendants to adduce rebuttal evidence in respect of the additional evidence adduced by the plaintiff. The appeal being of the year 2014 should be disposed of as early as possible, preferably within a period of six months. Judge …………….……………. Sashikanta Mishra, Orissa High Court, Cuttack The 11th September, 2023/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Sep-2023 19:10:49 Page 9 of 9