Civil Appeal No. 66 of 2009 · High Court · 2025

conclusion that the plaintiffs/respondents could not lead the necessary evidence, it had the power to take the evidence and decide the matter instead of remanding it specially when the suit which came to be decided by the trial court was of the year 1985. (ii). The other limb of the submission of learned counsel for the appellants is that certain documents which could not be placed on record, has been filed alongwith an application number Order 41 Rule 27 C.P.C. before this Court bearing I.A.No.21 of 2024, it is urged that certified copies of Khatauni have been brought on record which could cull out the controversy and indicate that the case as set out by the plaintiff/ respondent would stand demolished as he could not then indicate whether he was the owner in possession of the disputed property which is in the nature of sahan land.

4. Elaborating the submissions, Shri Maurya has submitted that the dispute in question was in respect of sahan land and there was ample evidence to indicate that the sahan of the plaintiff respondent was on the north eastern side and not on the southern side inasmuch as the southern side of the plaintiff's house was actually the northern side of the defendant's house. There was intervening land which was the sahan of the defendant. The same could also be ascertained by the site plan which was part of the survey commissioner's report which also indicated the aforesaid fact.

5. Accordingly, in the given facts and circumstances, the first appellate court erred in remanding the matter and for the aforesaid reasons, the appeal deserves to be allowed.

6. Shri M.E.Khan, learned counsel for the respondents while refuting the aforesaid submissions, has urged that first and foremost the plaintiff respondents were not afforded an adequate opportunity of hearing. Since no evidence could be lead by the plaintiff and in such circumstances, the first appellate court has no option but to remand the matter and for the aforesaid reason, this exercise of jurisdiction by the first appellate court cannot be faulted. It has further been urged that upon the directions of this Court passed in a petition preferred under Article 227 of the Constitution, the suit was to be decided, within six months.

7. Armed with the aforesaid decision, the trial court in haste, decided the suit without conforming with the principles of natural justice inasmuch as an adequate opportunity of leading evidence should have been granted which has been deprived. Consequently, the said error has been rectified by the first appellate court. Thus, the order of remand cannot be faulted.

8. It has further been submitted that initially the case was pending before the trial court in a different court but on the court being vacant, it came to be transferred before the transferee court on 7.3.2009. The first date fixed before the said court was 1.3.2009. An order was passed by the trial court rejecting the survey report. It is urged that once the survey report was rejected not on merits but on the ground that the Survey Commissioner did not conduct the survey in accordance with rules, hence as a necessarily formality, a fresh survey report should have been called for which has not been done. Immediately, thereafter the matter was listed for evidence of plaintiff and on account of the fact that the counsel was not present, an adjournment was sought which was rejected. Thereafter, the matter was listed for defendant's evidence on one occasion and the matter was fixed for final arguments. The order by which evidence was closed, of which, the plaintiff moved an application seeking recall, which was also rejected on

26.5.2009 and the order was assailed in a revision before the District Judge who on 8.7.2009 has called for the records and it is urged that on the very same day, the trial court heard the arguments and delivered its judgement.

9. It is urged that there was undue haste at the behest of the trial court. In such circumstances, the order of remand is just and appropriate and does not require any interference. Accordingly, the appeal may be dismissed.

10. Having considered the aforesaid submissions, at the outset it may be noticed that the appellants had filed an application under Order 41 Rule 27 C.P.C. which has be disposed of alongwith the final hearing of this appeal in terms of the judgement of the Apex Court in the case of Union of India Vs. Ibrahim Uddin : (2012) 8 SCC 148.

11. The controversy in question relates to the disputed land which is claimed by the plaintiffs to be part of his sahan which on the other hand is claimed by the defendants to be part of their sahan exclusively.

12. It is not in dispute that the plaintiff did not lead any evidence oral or documentary. An attempt was made by the plaintiffs to get the property inspected through a Survey commission however for reasons as mentioned above, the said survey report was rejected on 15.5.2009.

13. At this stage, it will be relevant to notice that once the court found that in order to resolve the controversy, a survey of the property was appropriate and then having come to the conclusion that the survey made by the Commissioner was not appropriate as it was not in accordance with the settled rules, it should have either called for a fresh report or it at least an opportunity should have been granted to the parties concerned to ascertain whether in absence of any fresh report, they would like to lead their separate evidence.

14. The record also indicates that upon rejection of the Survey Commissioner's Report, the matter was fixed for evidence to be lead by the plaintiff/ respondent and on the given date an adjournment was sought which was rejected. This Court apparently is of the view that even if there was a direction of this court for expediting the proceedings and directing the trial court to decide the suit within a period of six months, but at the same time the said direction does not permit the trial court to overstep its jurisdiction to move in case which has ultimately resulted in bigger and deeper miscarriage of justice rather than the non compliance with the order of the High Court to proceed expeditiously.

15. In the given facts and circumstances, it was either open for the first appellate court if it found that there was ample material on record to decide the controversy by himself or in the alternate by taking recourse to Order 41 Rule 25 C.P.C. it could have directed the trial court to have taken the evidence and remit its finding to the first appellate court as that would serve the purpose by achieving the twin conditions of providing opportunity of hearing to the parties as well as to ensure that there is no delay.

16. Unfortunately, this course was not adopted by the first appellate court rather he has remanded the matter for decision itself. This Court further finds that insofar as the fact that the plaintiff did not lead any evidence and his application seeking recall of the said order dated 19.5.2009 came to be rejected on 26.5.2009 against which a revision was preferred which was fixed on the same date i.e. 8.7.2009 when the matter was being urged before the trial court. If it was known to the trial court that the matter has reached the portals of the District Judge and the matter was being heard, it ought not to have showed haste. It is true that some times, 'justice hurried is justice buried' and this is one of those cases where the trial court by exercising its jurisdiction has committed bigger mistake rather than to have waited for the day.

17. Since the documents which are sought to be pressed by the appellant in terms of Order 41 Rule 25 of the C.P.C. are certified copies of the Khataunis which will have the bearing of the controversy involved, this court is of the opinion that the court has been vested with the powers in terms of Order 47 Rule 27 (b) C.P.C. wherein it finds that the documents are required for enabling it to give an effective judgement, can be taken on record.

18. In the light of the conflicting claims of the parties, the documents which are sought to be placed by the appellants would help the court in deciding the controversy completely hence the said application shall stand allowed. The certified copies of the documents shall be taken into evidence granting rights to the respondents to file any document in response.

19. Once the said application under Order 41 Rule 27 C.P.C. has been allowed, it would be appropriate that the matter is remanded to the trial court, who shall permit the parties to lead evidence and decide the controversy afresh.

20. It is further provided that as far as the order of remand by the first appellate court in the given facts and circumstances is concerned, this Court finds that there is no error. However, noting that the suit is of the year 1985, this Court directs that both the parties shall appear before the trial court on 28.7.2025.

21. Since during the pendency of the instant appeal, certain parties had died, liberty shall be available to the plaintiffs to move an appropriate application to correct the array of the parties in terms of the death which have occurred and since the substitution has already been carried out in this appeal, the same shall also enure the benefit of the trial court, hence, no unnecessary time shall be granted on this count. The mater shall stand restored before the trial court at the stage of evidence and as far as possible the trial court shall fix the dates not exceeding 3 days at a time and if any of the parties seeks to misuse the liberty, the same shall be noted and be accompanied with an appropriate costs in a progressive manner in the light of the decision of the Hon'ble Apex Court in the case of Revajeetu Builders and Developers Vs. Narayanaswamy & Sons and others : (2009) 10 SCC 84.inod Seth Vs. Devinder Bajaj : (2010) 8 SCC 1.

22. The trial court shall endeavor to decide the matter after affording full opportunity of hearing to the parties but without granting any unnecessary adjournments, preferably within a period of three months from the date the parties appear i.e. on

28.7.2025.

23. With the aforesaid, the appeal is allowed.

24. The respondent is put to terms and he shall deposit a sum of Rs.20,000/- with the trial court on or by 28.7.2025, out of which half of the said amount shall be released in favour of the appellant/ defendants and the remaining half shall be forwarded by the court concerned to the District Legal Service Authority.

25. The record of the trial court shall also be remitted forthwith, within ten days to reach the Trial Court supposedly before the date fixed by this Court. Order Date :- 8.7.2025 Shukla ASHUTOSH KUMAR SHUKLA High Court of Judicature at Allahabad, Lucknow Bench

conclusion that the plaintiffs/respondents could not lead the necessary evidence, it had the power to take the evidence and decide the matter instead of remanding it specially when the suit which came to be decided by the trial court was of the year 1985. (ii). The other limb of the submission of learned counsel for the appellants is that certain documents which could not be placed on record, has been filed alongwith an application number Order 41 Rule 27 C.P.C. before this Court bearing I.A.No.21 of 2024, it is urged that certified copies of Khatauni have been brought on record which could cull out the controversy and indicate that the case as set out by the plaintiff/ respondent would stand demolished as he could not then indicate whether he was the owner in possession of the disputed property which is in the nature of sahan land.

4. Elaborating the submissions, Shri Maurya has submitted that the dispute in question was in respect of sahan land and there was ample evidence to indicate that the sahan of the plaintiff respondent was on the north eastern side and not on the southern side inasmuch as the southern side of the plaintiff's house was actually the northern side of the defendant's house. There was intervening land which was the sahan of the defendant. The same could also be ascertained by the site plan which was part of the survey commissioner's report which also indicated the aforesaid fact.

5. Accordingly, in the given facts and circumstances, the first appellate court erred in remanding the matter and for the aforesaid reasons, the appeal deserves to be allowed.

6. Shri M.E.Khan, learned counsel for the respondents while refuting the aforesaid submissions, has urged that first and foremost the plaintiff respondents were not afforded an adequate opportunity of hearing. Since no evidence could be lead by the plaintiff and in such circumstances, the first appellate court has no option but to remand the matter and for the aforesaid reason, this exercise of jurisdiction by the first appellate court cannot be faulted. It has further been urged that upon the directions of this Court passed in a petition preferred under Article 227 of the Constitution, the suit was to be decided, within six months.

7. Armed with the aforesaid decision, the trial court in haste, decided the suit without conforming with the principles of natural justice inasmuch as an adequate opportunity of leading evidence should have been granted which has been deprived. Consequently, the said error has been rectified by the first appellate court. Thus, the order of remand cannot be faulted.

8. It has further been submitted that initially the case was pending before the trial court in a different court but on the court being vacant, it came to be transferred before the transferee court on 7.3.2009. The first date fixed before the said court was 1.3.2009. An order was passed by the trial court rejecting the survey report. It is urged that once the survey report was rejected not on merits but on the ground that the Survey Commissioner did not conduct the survey in accordance with rules, hence as a necessarily formality, a fresh survey report should have been called for which has not been done. Immediately, thereafter the matter was listed for evidence of plaintiff and on account of the fact that the counsel was not present, an adjournment was sought which was rejected. Thereafter, the matter was listed for defendant's evidence on one occasion and the matter was fixed for final arguments. The order by which evidence was closed, of which, the plaintiff moved an application seeking recall, which was also rejected on

26.5.2009 and the order was assailed in a revision before the District Judge who on 8.7.2009 has called for the records and it is urged that on the very same day, the trial court heard the arguments and delivered its judgement.

9. It is urged that there was undue haste at the behest of the trial court. In such circumstances, the order of remand is just and appropriate and does not require any interference. Accordingly, the appeal may be dismissed.

10. Having considered the aforesaid submissions, at the outset it may be noticed that the appellants had filed an application under Order 41 Rule 27 C.P.C. which has be disposed of alongwith the final hearing of this appeal in terms of the judgement of the Apex Court in the case of Union of India Vs. Ibrahim Uddin : (2012) 8 SCC 148.

11. The controversy in question relates to the disputed land which is claimed by the plaintiffs to be part of his sahan which on the other hand is claimed by the defendants to be part of their sahan exclusively.

12. It is not in dispute that the plaintiff did not lead any evidence oral or documentary. An attempt was made by the plaintiffs to get the property inspected through a Survey commission however for reasons as mentioned above, the said survey report was rejected on 15.5.2009.

13. At this stage, it will be relevant to notice that once the court found that in order to resolve the controversy, a survey of the property was appropriate and then having come to the conclusion that the survey made by the Commissioner was not appropriate as it was not in accordance with the settled rules, it should have either called for a fresh report or it at least an opportunity should have been granted to the parties concerned to ascertain whether in absence of any fresh report, they would like to lead their separate evidence.

14. The record also indicates that upon rejection of the Survey Commissioner's Report, the matter was fixed for evidence to be lead by the plaintiff/ respondent and on the given date an adjournment was sought which was rejected. This Court apparently is of the view that even if there was a direction of this court for expediting the proceedings and directing the trial court to decide the suit within a period of six months, but at the same time the said direction does not permit the trial court to overstep its jurisdiction to move in case which has ultimately resulted in bigger and deeper miscarriage of justice rather than the non compliance with the order of the High Court to proceed expeditiously.

15. In the given facts and circumstances, it was either open for the first appellate court if it found that there was ample material on record to decide the controversy by himself or in the alternate by taking recourse to Order 41 Rule 25 C.P.C. it could have directed the trial court to have taken the evidence and remit its finding to the first appellate court as that would serve the purpose by achieving the twin conditions of providing opportunity of hearing to the parties as well as to ensure that there is no delay.

16. Unfortunately, this course was not adopted by the first appellate court rather he has remanded the matter for decision itself. This Court further finds that insofar as the fact that the plaintiff did not lead any evidence and his application seeking recall of the said order dated 19.5.2009 came to be rejected on 26.5.2009 against which a revision was preferred which was fixed on the same date i.e. 8.7.2009 when the matter was being urged before the trial court. If it was known to the trial court that the matter has reached the portals of the District Judge and the matter was being heard, it ought not to have showed haste. It is true that some times, 'justice hurried is justice buried' and this is one of those cases where the trial court by exercising its jurisdiction has committed bigger mistake rather than to have waited for the day.

17. Since the documents which are sought to be pressed by the appellant in terms of Order 41 Rule 25 of the C.P.C. are certified copies of the Khataunis which will have the bearing of the controversy involved, this court is of the opinion that the court has been vested with the powers in terms of Order 47 Rule 27 (b) C.P.C. wherein it finds that the documents are required for enabling it to give an effective judgement, can be taken on record.

18. In the light of the conflicting claims of the parties, the documents which are sought to be placed by the appellants would help the court in deciding the controversy completely hence the said application shall stand allowed. The certified copies of the documents shall be taken into evidence granting rights to the respondents to file any document in response.

19. Once the said application under Order 41 Rule 27 C.P.C. has been allowed, it would be appropriate that the matter is remanded to the trial court, who shall permit the parties to lead evidence and decide the controversy afresh.

20. It is further provided that as far as the order of remand by the first appellate court in the given facts and circumstances is concerned, this Court finds that there is no error. However, noting that the suit is of the year 1985, this Court directs that both the parties shall appear before the trial court on 28.7.2025.

21. Since during the pendency of the instant appeal, certain parties had died, liberty shall be available to the plaintiffs to move an appropriate application to correct the array of the parties in terms of the death which have occurred and since the substitution has already been carried out in this appeal, the same shall also enure the benefit of the trial court, hence, no unnecessary time shall be granted on this count. The mater shall stand restored before the trial court at the stage of evidence and as far as possible the trial court shall fix the dates not exceeding 3 days at a time and if any of the parties seeks to misuse the liberty, the same shall be noted and be accompanied with an appropriate costs in a progressive manner in the light of the decision of the Hon'ble Apex Court in the case of Revajeetu Builders and Developers Vs. Narayanaswamy & Sons and others : (2009) 10 SCC 84.inod Seth Vs. Devinder Bajaj : (2010) 8 SCC 1.

22. The trial court shall endeavor to decide the matter after affording full opportunity of hearing to the parties but without granting any unnecessary adjournments, preferably within a period of three months from the date the parties appear i.e. on

28.7.2025.

23. With the aforesaid, the appeal is allowed.

24. The respondent is put to terms and he shall deposit a sum of Rs.20,000/- with the trial court on or by 28.7.2025, out of which half of the said amount shall be released in favour of the appellant/ defendants and the remaining half shall be forwarded by the court concerned to the District Legal Service Authority.

25. The record of the trial court shall also be remitted forthwith, within ten days to reach the Trial Court supposedly before the date fixed by this Court. Order Date :- 8.7.2025 Shukla ASHUTOSH KUMAR SHUKLA High Court of Judicature at Allahabad, Lucknow Bench