Madhya Pradesh High Court
Kunti vs Lakshman Singh on 17 July, 2026
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1 M.A.No.5985 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE AMIT SETH
MISCELLANEOUS APPEAL No.5985 of 2025
25
KUNTI
Versus
LAKSHMAN SINGH AND OTHERS
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Appearance:
Shri Upendra Yadav - Advocate for appellant.
Shri Dharmendra Rishishwar - Advocate for respondents No.1 and 2.
Shri Dilip Awasthi - Government Advocate for proforma respondent/State.
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Reserved on : 08.07.2026
Delivered on : 17.07.2026
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ORDER
1. With the consent of the parties, the matter is finally heard.
2. The present miscellaneous appeal filed under Order 43 Rule
R 1 (r) of the
Code of Civil Procedure, 1908 [hereinafter referred to as “CPC
“CPC“), challenges
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the order dated 23.06.2025 passed by the First District Judge, Bhind, District
Bhind (learned Lower appellate Court), Madhya Pradesh, in RCA/89/2022,
whereby the lower appellate Court, by allowing the application under Order
41 Rule 27 read with Section 151 of CPC filed by the respondents No.1 and
2/plaintiffs, by setting aside the judgment and decree dated 31.10.2022 passed
by the learned trial Court has remanded the matter to the trial Court for taking
additional evidence in respect of the sale deed dated 18.06.1970
18.06. and
thereafter deciding the suit afresh in accordance with law.
3. Brief facts leading to the filing of the present miscellaneous appeal are as
under:
3.1. The respondents No.1 and 2 (plaintiffs) instituted a suit seeking a
decree of declaration and permanent injunction against the defendants,
including the present appellant.
appellant. A declaration in respect of the sale deed
05.03.2004 being nullity was also sought for.
3.2. The defendants/appellant
/appellant filed their written statements disputing the
claim of the plaintiffs.
3.3. After considering the evidence adduced by the parties, the learned trial
Court, vide judgment and decree dated 31.10.2022 (Annexure P/4), dismissed
the suit filed by the respondents No.1 and 2.
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3.4. The judgment and decree dated 31.10.2022 passed by the trial Court
was challenged in a regular first appeal by the respondents No.1 and 2. In
appeal, an application under Order 41 Rule 27 CPC was filed seeking
permission to bring on record the original sale deed 18.06.1970 as additional
evidence. The lower appellate Court, vide the impugned order dated
23.06.2025, by allowing the application preferred by respondents No.1 and 2
under Order 41 Rule 27 CPC, remanded the matter to the trial Court for
deciding the suit afresh
afresh,, which is under challenge in the present appeal.
4. Learned counsel
sel appearing for the appellant submits that the suit for
declaration and permanent injunction was filed by respondents No.1 and 2
against the present plaintiffs alleging that the land bearing Survey No.797,
admeasuring 0.330 hectare, was under the ownership and possession of their
father,
er, Rambharose, who, vide sale deed dated 10.06.1969, sold the said land
to Dalchandra s/o Mannu Lal Jain. The suit land was thereafter purchased by
Rambharose from Dalchandra on 18.06.1970. On the basis of the sale deed
dated 10.06.1969, the mutation reco
records
rds were corrected, and thereafter the
appellant purchased the suit land vide sale deed dated 05.03.2004 from
Dalchandra. In these facts, a declaration was sought that the subsequent sale
deed dated 05.03.2004, in view of the earlier sale deed dated 18.06.
18.06.1970, is
nullity.
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5. It is argued by the learned counsel appearing for the appellant
ap that
inspite of a specific objection being raised during the evidence of respondent
No.1, Laxman Singh, as regards non
non-production
production of the original sale deed
dated 18.06.1970,
70, it was admitted by him that the same is not produced in the
suit. He further stated that the said sale deed was given to their counsel but
why it has not been produced cannot be disclosed. Neither the sale deed was
produced in original before the trial Court, nor any evidence in terms of
Section 65 of the Indian Evidence Act, 1872 [hereinafter referred to as
“Evidence Act“]
“] to prove the execution of the sale deed was led by the
respondents No.1 and 2. In the absence of the sale deed being produced and
proved
roved in accordance with law, the learned trial Court dismissed the suit vide
judgment dated 31.10.2022. However, in a routine manner, the application
under Order 41 Rule 27 of CPC filed by the respondents No.1 and 2 has been
allowed by the lower appellate Court and the matter has been remanded for
retrial. By taking this Court to the application under Order 41 Rule 27 read
with Section 151 CPC filed by the respondents No.1 and 2 (Annexure A/6), it
is argued on behalf of the appellant that a stand contrary to what was taken
before the learned trial Court has been taken by respondents No.1 and 2 in
their application yet, the lower appellate Court had allowed the same. He
submits that even if the original sale deed was not produced before the trial
Court, yet, it was still open for the respondents No.1 and 2 to establish its
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execution in terms of Sections 65 and 68 of the Evidence Act. However, they
failed to adduce any evidence in the said regard. Now, by way of remand, the
lower appellate Court has, in fact, permitted respondents No.1 and 2 to fill up
the lacunae left in their case, which is not the object of Order 47 Rule 27
CPC. In support of his contention, he has placed reliance upon the judgment
of the Apex Court in the case of Union of India v. Ibrahim Uddin, (2012) 8
SCC 148; Sanjay Kumar Singh v. The State of Jharkhand, 2022 (7) SCC
247; and Civil Appeal No.1491 of 2023 (Sirajuddin
Sirajuddin v. Zeenat and Others)
Others
decided on 25.02.2023 by the Apex Court. It is, therefore, submitted that the
order impugned deserves to be set aside.
6. On the other hand, learned counsel appearing for the respondents by
supporting the order impugned in the present appeal submits that the
plaintiffs cannot be made to suffer oon
n behalf of error committed by their
counsel. Once, they have given the original sale deed 18.06.1970 to their
counsel, if it was not produced by their counsel, they cannot be made to
suffer. It is argued that their father, Rambharose, was the original owner
own of
the suit land, only in lieu of a loan transaction for a period of one year, the
sale deed was executed in favour of Dalchandra in the year 1969, which was
repurchased by their father in the year 1970 itself. He submits that the lower
appellate Court had acted within the bounds of the provisions contained in
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Order 41 Rule 27 CPC, and the order impugned in the present appeal is
inconsonance with the law propounded by the Apex Court in the case of
Shyam Gopal Bindal and Others vs. Land Acquisition Officerr and Another,
AIR 2010 SC 690, Sanjay Kumar Singh vs. The State of Jharkhand, Civil
Appeal No.1760 of 202,
202 decided by the Apex Court on 10.03.2022; and the
judgment by the Apex Court in the case of Andisamy Chettiar vs. Subburaj
Chettiar, AIR 2016 SC 79
79. He also relies upon an order dated 10.11.2025
passed by the Coordinate Bench of this Court in M.A.No. 3974 of 2018
(Haribabu vs. Smt. Savitri Devi and Others) in support of contention that the
scope of interference in present appeal under Order 43 Rule 1 ((u) of CPC is
limited, unless the order of remand is shown to be perverse, arbitrary, or
beyond jurisdiction, the same is not to be ordinarily interfered with.
7. I have heard counsel for the parties and have carefully gone through
the records of the case.
8. Two issues that arise for the consideration of this Court are that:-
that:
“(i) Whether Lower Appellate Court rightly allowed the
application filed by the respondents under Order 41 Rule 27
CPC?
(ii) Whether the order of remand passed by the Lower Appellate
Court can be sustained?”
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9. In order to appreciate the rival contentions, it would be apt to peruse
the provision as contained under Order 41 Rule 23, 23A, 25 and 27 CPC. The
same read as under:
“23.Remand
23.Remand of case by appellate court
court.–Where
Where the court from
whose decree an appeal is preferred has disposed of the suit
upon a preliminary point and the decree is reversed in appeal,
the appellate court may, if it thinks fit, by order remand the case,
and may further direct what issue or issues shall be tried in the
case so remanded, and shall send a copy of its judgment and
order to the court from whose decree the appeal is preferred,
with directions to readmit the suit under its original number in
the register of civil suits, and proceed to determine the
the suit; and
the evidence (if any) recorded during the original trial shall,
subject to all just exceptions, be evidence during the trial after
remand.
xxx-xxx-xxx
23-A.
A. Remand in other cases.–Where
cases. Where the court from whose
decree an appeal is preferred has di disposed
sposed of the case otherwise
than on a preliminary point, and the decree is reversed in appeal
and a retrial is considered necessary, the appellate court shall
have the same powers as it has under Rule 23.
xxx-xxx-xxx
25. Where Appellate Court may frame issues and refer them for
trial to court whose decree appealed from — Where the court
from whose decree the appeal is preferred has omitted to frame
or try any issue, or to determine any question of fact, which
appears to the Appellate Court essential to the the right decision of
the suit upon the merits, the Appellate Court may, if necessary,
frame issues, and refer the same for trial to the court from whose
decree the appeal is preferred and in such case shall direct such
court to take the additional evidence required; and such court
shall proceed to try such issues, and shall return the evidence to
the Appellate Court together with its findings thereon and theSignature Not Verified
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reasons there for within such time as may be fixed by the
Appellate Court or extended by it from tim
time to time.
xxx-xxx-xxx
27. Production of additional evidence in Appellate Court
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
decre 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,
judgme
or for any other substantial cause, the Appellate Court may allow
such evidence or document to be produced, or witness to be
examined.
(2) Wherever additional evidence is allowed to be produced by
an Appellate Court, the Court shall record the reason for its
admission.”
10. A perusal of the same indicates that Order 41 Rule 27, of CPC
specifies the conditions under which the court may permit parties to the
appeal to present evidence at the appellate sta
stage.
ge. These conditions are:
1. If the trial court that rendered the decree refused to accept
evidence that shoul
should have been accepted, or;
2. If the appellant is successful in proving that the evidence in
question was not known to him, or;
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3. If the party appealing is able to prove that, despite his best
bes
efforts, he was unable to produce the evidence when the trial court
issued the
he decree being appealed;
4. If an appellate court requires a document be produced or a
witness be questioned in order to reach a decision, or;
5. If the appellate court reques
requests
ts the production of any documents
or the cross-examination
examination of any witnesses for any other substantial
cause.
11. Learned counsel appearing for the appellant has placed reliance upon
Union of India v. Ibrahim Uddin (supra). The Hon’ble Supreme Court in
the said case had held as under:
“36. The general principle is that the Appellate Court should not
travel outside the record of the lower court and cannot take any
evidence in appeal. However, as an exception, Order 41 Rule 27
CPC enables the Appellate Court to take additional evidence in
exceptional circumstances. The Appellate Court may permit
additional evidence only and only if the conditions laid down in
this rule are found to exist. The parties are not entitled, as of
right, to the admission
dmission of such evidence. Thus, provision does not
apply, when on the basis of evidence on record, the Appellate
Court can pronounce a satisfactory judgment. The matter is
entirely within the discretion of the court and is to be used
sparingly. Such a discretion
discretion is only a judicial discretion
circumscribed by the limitation specified in the rule itself. (Vide
K. Venkataramiah v. A. Seetharama Reddy [AIR 1963 SC 1526],
Municipal Corp. of Greater Bombay v. Lala Pancham [AIR 1965
SC 1008], Soonda Ram v. Rameshwarlal
Rameshwarlal [(1975) 3 SCC 698 :
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AIR 1975 SC 479] and Syed Abdul Khader v. Rami Reddy
[(1979) 2 SCC 601 : AIR 1979 SC 553]).
37. The Appellate Court should not, ordinarily allow new
evidence to be adduced in order to enable a party to raise a new
point in appeal.
appeal. Similarly, where a party on whom the onus of
proving a certain point lies fails to discharge the onus, he is not
entitled to a fresh opportunity to produce evidence, as the Court
can, in such a case, pronounce judgment against him and does
not require aany
ny additional evidence to enable it to pronounce
judgment.. (Vide: Haji Mohammed Ishaq v. Mohd. Iqbal and
Mohd. Ali and Co. [(1978) 2 SCC 493 : AIR 1978 SC 798]).
38. Under Order 41 Rule 27 CPC, the appellate Court has the
power to allow a document to be produced and a witness to be
examined. But the requirement of the said Court must be
limited to those cases where it found it necessary to obtain such
evidence for enabling it to pronounce judgment. This provision
does not entitle the appellate Court to le lett in fresh evidence at
the appellate stage where even without such evidence it can
pronounce judgment in a case. It does not entitle the appellate
Court to let in fresh evidence only for the purpose of
pronouncing judgment in a particular way. In other words, wor it is
only for removing a lacuna in the evidence that the appellate
Court is empowered to admit additional evidence. [Vide: Lala
Pancham [AIR 1965 SC 1008].)
39. It is not the business of the Appellate Court to supplement
the evidence adduced by one party or the other in the lower
Court. Hence, in the absence of satisfactory reasons for the non
production of the evidence in the trial court, additional evidence
should not be admitted in appeal as a party guilty of remissness
in the lower court is not eentitled
ntitled to the indulgence of being
allowed to give further evidence under this rule. So a party who
had ample opportunity to produce certain evidence in the lower
court but failed to do so or elected not to do so, cannot have it
admitted in appeal. (Vide: State of U.P. v. Manbodhan Lal
Srivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M.
Armugam [AIR 1969 SC 101]. )
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40. The inadvertence of the party or his inability to understand
the legal issues involved or the wrong advice of a pleader or the
negligencee of a pleader or that the party did not realise the
importance of a document does not constitute a “substantial
cause” within the meaning of this rule. The mere fact that certain
evidence is important, is not in itself a sufficient ground for
admitting that
at evidence in appeal.
41. The words “for any other substantial cause” must be read
with the word “requires” in the beginning of sentence, so that it is
only where, for any other substantial cause, the Appellate Court
requires additional evidence, that th
this
is rule will apply, e.g., when
evidence has been taken by the lower Court so imperfectly that
the Appellate Court cannot pass a satisfactory judgment.
42. Whenever the appellate Court admits additional evidence it
should record its reasons for doing so. ((Subrule
Subrule 2). It is a
salutary provision which operates as a check against a too easy
reception of evidence at a late stage of litigation and the
statement of reasons may inspire confidence and disarm
objection. Another reason of this requirement is that, wherewh a
further appeal lies from the decision, the record of reasons will
be useful and necessary for the Court of further appeal to see,
if the discretion under this rule has been properly exercised by
the Court below.
below. The omission to record the reasons mus must,
therefore, be treated as a serious defect. But this provision is
only directory and not mandatory, if the reception of such
evidence can be justified under the rule.
43. The reasons need not be recorded in a separate order
provided they are embodied in the judgment of the appellate
Court.. A mere reference to the peculiar circumstances of the
case, or mere statement that the evidence is necessary to
pronounce judgment, or that the additional evidence is required
to be admitted in the interests of justice,
justice, or that there is no
reason to reject the prayer for the admission of the additional
evidence, is not enough comp1iance with the requirement as to
recording of reasons.
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47. Where the additional evidence sought to be adduced removes
the cloud of doubt ovover
er the case and the evidence has a direct
and important bearing on the main issue in the suit and interest
of justice clearly renders it imperative that it may be allowed to
be permitted on record such application may be allowed.
48. To sum up on the issue,
issue, it may be held that application for
taking additional evidence on record at a belated stage cannot
be filed as a matter of right. The court can consider such an
application with circumspection, provided it is covered under
either of the prerequisite con
condition
dition incorporated in the statutory
provisions itself. The discretion is to be exercised by the court
judicially taking into consideration the relevance of the
document in respect of the issues involved in the case and the
circumstances under which such aan n evidence could not be led
in the court below and as to whether the applicant had
prosecuted his case before the court below diligently and as to
whether such evidence is required to pronounce the judgment
by the appellate court. In case the court comes to t the
conclusion that the application filed comes within the four
corners of the statutory provisions itself, the evidence may be
taken on record, however, the court must record reasons as on
what basis such an application has been allowed.
allowed. However, the
application
plication should not be moved at a belated stage.
Stage of Consideration :
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 whether the documents and/or the evidence sought to be
adduced have any relevance/bearing on the issues involved.
The admissibility of ad
additional
ditional 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 eevidence
vidence 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
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taking into consideration the additional
additional evidence sought to be
adduced.. Such occasion would arise only if on 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 [1951 SCC 178 : AIR 1951 SC 193]
and Natha Singh v. Financial Commr., Taxation [(1976) 3 SCC
28 : AIR 1976 SC 1053]. )
50. In Parsotim Thakur v. Lal Mohar Thakur [(1931) 34 LW
76 : AIR 1931 PC 143], it was held: (LW pp. 8687) “….The
provisions of Section 107, Civ
Civil
il Procedure Code, as elucidated
by Order 41, Rule 27, are clearly not intended to allow a litigant
who has been unsuccessful in the lower Court to patch up the
weak parts of his case and fill up omissions in the Court of
appeal. …. Under Rule 27, clause (1)(b),
(1)(b), it is only where the
appellate Court ‘requires’ it (i.e. finds it needful). …… The
legitimate occasion for the exercise of this discretion is not
whenever before the appeal is heard a party applies to adduce
fresh evidence, but ‘when on examining thethe evidence as it stands,
some inherent lacuna or defect becomes apparent’, …. it may
well be that the defect may be pointed out by a party, or that a
party may move the Court to apply the defect, but the
requirement must be the requirement of the court upon upo its
appreciation of evidence as it stands. Wherever the Court adopts
this procedure it is bound by Rule 27(2) to record its reasons for
so doing, and under Rule 29 must specify the points to which the
evidence is to be confined and record on its proceedings
proceedi the
points so specified. … the power so conferred upon the Court by
the Code ought to be very sparingly exercised, and one
requirement at least of any new evidence to be adduced should
be that it should have a direct and important bearing on a main
issue
ue in the case.” (emphasis added) (See also: IndirajitPratab
Sahi v. Amar Singh [(192223) 50 IA 183 : AIR 1928 PC 128]. )
51. In Arjan Singh v. Kartar Singh [1951 SCC 178 : AIR 1951
SC 193] this Court held: (AIR pp. 19596, paras 78) “7. ….If the
additional
nal evidence was allowed to be adduced contrary to the
principles governing the reception of such evidence, it would be
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a case of improper exercise of discretion, and the additional
evidence so brought on the record will have to be ignored and
the case decided
ided as if it was non-existent…
non existent… 8. …The order
allowing the appellant to call the additional evidence is dated
1781942. The appeal was heard on 244 1942. There was thus no
examination of the evidence on the record and a decision
reached that the evidence as it stood disclosed a lacuna which
the court required to be filled up for pronouncing the judgment”
(emphasis added)
52. Thus, from the above, it is crystal clear that application for
taking additional evidence on record at an appellate stage, even
if filed during the pendency of the appeal, is to be heard at the
time of final hearing of the appeal at a stage when after
appreciating the evidence on record, the court reaches the
conclusion that additional evidence was required to be taken on
record in order
der to pronounce the judgment or for any other
substantial cause.
cause. In case, application for taking additional
evidence on record has been considered and allowed prior to the
hearing of the appeal, the order being a product of total and
complete non–application
ion of mind, as to whether such evidence is
required to be taken on record to pronounce the judgment or not,
remains inconsequential/in executable and is liable to be
ignored.”
[Emphasis Supplied]
12. Guided by the aforesaid principles, it can be thus, safely
saf concluded
that:
(i) Provision as contained under Order 41 Rule 27 CPC is an
exception to general principle that the Appellate Court should not
travel outside the record of the Lower Court and cannot take evidence
in appeal.
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(ii) Provision as contained under Order 41 Rule 27 CPC can be
invoked only in exceptional circumstances.
(iii) The Appellate Court may permit additional evidence only if the
conditions enumerated in Order 41 Rule 27 are satisfied.
(iv) Applicant seeking perm
permission
ission to lead additional evidence under
Order 41 Rule 27 must establish that:
a) the evidence sought to be produced was refused to be
admitted in evidence by the Lower Court wrongly; or
b) that the evidence was not within his knowledge or could not
be produced
roduced by him before the court of first instance despiteexercise of due diligence;
(v) where the Appellate Court requires the evidence to enable it to
pronounce judgment or for any other substantial cause, application
under Order 41 Rule 27 be allowed. The Privy council in the case of
Parsotim Thakur vvs. Lal Mohar Thakur, 68 IA 254 summarised the
need of the Court observing that “it may well be that the defect may be
pointed out by the party, or that a party may move the Court to supply
the defect, but the
the requirement must be the requirement of the Courtupon its appreciation of the evidence as it stands.
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(vi)) The patch work sought to enure benefit by a party is different from
the lacuna found by the Court which is a handicap in pronouncing
judgment.”
13. Testing the present case on the touchstone of the aforesaid parameters,
it is evident that the sale deed dated 18.06.1970 sought to be produced by
way of additional evidence by the respondent before the appellate Court was,
in fact, in existence and within
within their knowledge. The reason assigned for not
producing the same in the application filed under Order 41 Rule 27 CPC was
that the said document was not available at the relevant time. On searching, it
was found that the same was filed in Civil Suit No.57A/75
No.57A/75 before the Civil
Judge Class II, Bhind, and since the same was found later on, it was not
placed on record before the trial Court. Though it has been argued on behalf
of the appellant that in his evidence before the learned Trial Court,
respondent No.1 admitted that he was in possession of the original sale deed
of the year 1970 and the same was given to his counsel, but why the counsel
has not placed the same on record is not known. However, in their reply to
the application filed by the respondent before the appellate Court under Order
41 Rule 27 CPC, a plea was taken by the appellant herein that no reason has
been assigned in the application for not filing the said documents before the
learned trial Court, itt has not been clarified as to why the original
original document
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was not available at the time and no evidence has been filed to indicate as to
why, the document could not have been procured earlier.
14. The lower appellate Court considered the averments of the rival parties
on the application for taking
taking additional evidence on record and opined that
the respondents had succeeded in establishing that they were unable to file
the said document at the time when the decree was passed as the same was
found to be record of Case No.57A/75 having Exhibit P/2 marked
marked on it, and it
is not clear that the same was given to counsel in revenue case or the counsel
in civil suit. The lower appellate Court thereafter, upon due consideration of
the findings recorded by the learned trial Court and on reaching the
conclusion that the trial Court had disbelieved the execution of the sale deed
dated 18.06.1970 on account of non
non-production
production of the original of the same,
despite of the fact that the certified copy of the same Exhibit P
P-1C, and the
corresponding evidence of Sub
Sub-Registrar
strar though were produced. The lower
appellate Court, thus, concluded that the said document was required to be
produced in order to reach a decision as contemplated under Order 41 Rule
27 (4) of CPC. The lower appellate Court had relied upon the judgment of the
Apex Court in the case of Shyam gopal Bandil (supra) and Sanjay Kumar
Singh (supra).
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15. The lower appellate Court had duly recorded reasons for allowing the
application under Order 41 Rule 27 CPC preferred by the respondent in terms
of the law propounded
pounded by the Apex Court in the Ibrahim Uddin (supra),
(supra) as
contained in paragraphs 42, 43, 47 and 48, relied upon by the appellant.
16. Insofar as the argument advanced by the learned counsel appearing for
the appellant as regards no efforts being made by the respondents to prove the
execution of the sale deed 18.06.1970 by producing the executing witnesses,
witnesses
and the order of remand would enure benefit in favour of the respondents to
fill up the said lacunae
unae,, the said argument is noted to be rejected for the
reason that a sale deed
deed, not being required by law to be attested, the
provisions of Section 68 of the Indian Evidence Act are, on the face of it
it, not
applicable. The aforesaid view is fortified by the decision of the Apex Court
in the case of Hans Ra
Raji (Smt.) vs. Yosodanand,, reported in 1996 (7) SCC
122 wherein it has been held as under:
“So far as the applicability to the proviso to Section 68 is
concerned, it must be noted that there was no occasion for the
respondent to examine any attesting witness to the document in
question as it was a sale deed which never required any
attestation and
nd even if some ‘marginal’ witnesses had attested
the document the document did not attract Section 68 of the
Evidence Act which in term applies to the proof of execution of
document required by law to be attested. It reads as under:
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“68. Proof of executi
execution
on of document required by law to
be attested.–If
attested. If a document is required by law to be
attested, it shall not be used as evidence until one
attesting witness at least has been called for the purpose
of proving its execution, if there be an attesting witness
alive, and subject to the process of the Court and capable
of giving evidence: Page 28 of 36 Provided that it shall
not be necessary to call an attesting witness in proof of
the execution of any document, not being a will, which
has been registered in accordance
accordance with the provisions of
the Indian Registration Act, 1908 (16 of 1908), unless its
execution by the person by whom it purports to have been
executed is specifically denied.”
Therefore, Section 68 would not cover such a transaction. Hence
there would
d remain no occasion to invoke the proviso to Section
68 with a view to finding out whether the execution of such a
document was specifically denied by the adverse party or not.
Consequently, all the main contentions canvassed before the
High Court which aare
re repelled by the High Court cannot be said
to be wrongly repelled.”
(Emphasis supplied)
17. Reference may also be made to another decisions of the Apex Court in
the case of Bayanabai Kaware v. Rajendra s/o Baburao Dhote, reported in
(2018) 1 SCC 585, wherein this Court observed as under:
“It is for the reasons that, firstly, the execution of the sale deed
does not need any attesting witness like the gift deed, which
requires at least two attesting witnesses at the time of its
execution as per Section 123 of the Transfer of Property Act,
1882; and secondly, Section 68 of the Evidence Act, 1872, which
deals with the examination of the attesting witness to prove theSignature Not Verified
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execution of the document, does not apply to sale deed, which is
governed by Section 54 of the Transfer of Property Act.”
(Emphasis supplied)
18. Moreover, since the original sale deed dated 18.06.1970 is now
available on record, the applicability of Section
ection 90 of the Indian Evidence
Act, 1872 may also be required to be considered. Thus, this Court is of the
considered opinion that the learned appellate Court has appropriately
exercised its powers under Order 41 Rule 27 CPC and
and, upon being satisfied
that the sale deed sought to be produced as additional evidence is relevant for
the just and fair decision of the matter,
matter, has rightly held that the same would
assist the trial Court in determining the real issue in question. The other
judgments relied upon by the appellant’s counsel, in view of above
discussion, may have no applicability in the gi
given
ven facts of the case.
19. Coming to the next issue, i.e., whether the order of remand passed by
the lower appellate Court can be sustained?
20. The learned trial Court, while considering Issue
ssue No.5 so framed, held
the suit filed by the respondents to be
be beyond limitation. However, taking
into consideration that the original sale deed dated 18.06.1970,
18.06.1970 produced by
the respondents, being the sole ground for claiming relief in the suit,
suit it would
be necessary that the parties are granted an opportunity to lead
ead their evidence
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21 M.A.No.5985 of 2025
as regards the same. The issue of limitation, in the wake of the additional
evidence now produced
produced, would be required to be decided afresh.
afresh This aspect
has also been appropriately dealt with by the learned trial Court and while
exercising the powers under Order 41 Rule 23A of CPC, the matter has been
remanded for the purposes of taking additional evidence by affording
opportunities to the parties. The scope of interference in the present appeal
filed under Order 43 Rule 1 (u) of CPC is limited.
limited. Unless the order of remand
is shown to be perverse, ar
arbitrary,, or beyond jurisdiction, this Court
ordinarily does not interference with such an order.
21. In the present case, the first appellate Court has recorded cogent
reasons while admitting tthe
he additional evidence and remanding the matter for
a fresh decision. The requirement
requirements of Order 41 Rule 27 of CPC so also, the
Order 41 Rule 23A of CPC are duly satisfied. It is a settled principle that
where a remand is made to ensure a complete and fair adjudication, such
order should not be interfered with unless its results in a miscarriage of
justice. Since both parties have been granted liberty to the evidence in support
of their cases and in rebuttal, no prejudice can be said to have been cause
caused to
the appellant.
22. In view of the aforesaid discussions, this Court finds no illegality,
irregularity and infirmity in the order dated 23.06.2025 passed by the learned
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First District Judge, Bhind, District Bhind
Bhind, in RCA/89/2022 and the order of
remand is justified
ustified and calls for no interference.
23. Accordingly, the present miscellaneous appeal filed by the appellant
fails and is hereby dismissed.
dismissed The impugned order dated 23.06.2025 passed
by the learned First District Judge, Bhind, District Bhind, in RCA/89/2022
passed by the first appellate Court is affirmed.
24. Pending application (s), if any, shall also stand disposed of.
(AMIT SETH)
JUDGE
AK/-
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