24 March 2022 6:44 AM GMT
The Rajasthan High Court, while allowing the application under Order 41 Rule 27 CPC observed that no additional evidence is required to be recorded to prove the additional documents, when the same are certified copies of the judgments passed by Judicial Courts. Justice Sudesh Bansal, opined, "In the opinion of this court, copies of judgment dated 04.09.2006 and order dated...
The Rajasthan High Court, while allowing the application under Order 41 Rule 27 CPC observed that no additional evidence is required to be recorded to prove the additional documents, when the same are certified copies of the judgments passed by Judicial Courts.
Justice Sudesh Bansal, opined,
"In the opinion of this court, copies of judgment dated 04.09.2006 and order dated 23.07.2012, have material bearing on issues involved in the present appeal. No additional evidence is required to be recorded to prove the additional documents, as the same are certified copies of the judgments passed by Judicial Courts. Thus, in the interest of justice, the application under Order 41 Rule 27 CPC is allowed."
Essentially, a second appeal has been filed against judgment and decree passed by Additional Senior Civil Judge No.7, Kota in suit affirmed in first appeal in judgment passed by the District Judge, Kota, whereby civil suit for possession and permanent injunction has been decreed against appellants-defendants.
The suit-property is a House in Kota over which appellants are having possession. Appellants-defendants have filed an application under Order 41 Rule 27 CPC to place on record copy of judgment dated 04.09.2006, passed by Civil Judge (Junior Division), South Kota in a Civil Suit and copy of order dated 23.07.2012 passed by Additional District Judge No.4, Kota in appeal affirming the judgment dated 04.09.2006.
While taking certified copies of judgment dated 04.09.2006 and order dated 23.07.2012 on record, the court observed that the respondent would have the right to produce rebuttal evidence, if any, to such additional documents. In this regard, reliance was placed by the court in the case of Wadi v. Amilal and Ors. reported in [(2015) 1 SCC 677], wherein the Supreme Court propounded that if any additional documents are relevant and helpful to adjudicate an issue, the same can be taken on record.
The court observed that the facts and grounds mentioned in the memorandum of appeal do not amount to improvement of basic pleadings of parties and even can be argued orally. Therefore, the court opined that if additional facts and grounds, as proposed by the appellants, are allowed to be amended in the memorandum of second appeal, no prejudice would cause to the respondent, as he will have full opportunity to refute additional facts and grounds also while opposing other grounds of second appeal to oppose the admission of second appeal. In this regard, the court allowed the application seeking amendment in the memo of appeal. Appellants may file an amendment memo of appeal within a period of two weeks, added the court.
Further, the court ordered that the execution of impugned decree for possession shall remain stayed and both parties would maintain status quo as to alienation and possession in relation to suit property. The court further ruled,
"Since this court has allowed the application under Order 41 Rule 27 CPC giving liberty to respondent to file documents/evidence in rebuttal and has also allowed to file amendment memo of appeal, therefore, appeal is required to be heard afresh for admission, after filing amended memo of second appeal and considering the additional documents as well as documents in rebuttal, if any."
The court has listed the appeal for admission after six weeks.
The counsel for defendants submitted that in relation to the suit property, appellant No. 2 Ram Janki Bai with her sister Pushpa Bai file a Civil Suit for permanent injunction against their father namely Devkishan, claiming inter alia that suit property is their ancestral property and defendant be restrained not to dispossess plaintiffs. The suit was decreed vide judgment dated 04.09.2006 in the manner that the defendant would not dispossess the plaintiffs without following the process of partition and due course of law.
He added that during pendency of said suit, Devkishan sold the said property to the present respondent-plaintiff through sale deed dated 23.08.2006. Later on, he also added that Devkishan filed an appeal to set aside the judgment dated 04.09.2006, which was dismissed vide order dated 23.07.2012 and the judgment and decree dated 04.09.2006 has been affirmed.
The counsel for appellants submitted that although in written statement, reference about the suit for injunction filed by appellants was given, the copies of judgment could not be produced on record despite due diligence. He submitted that both documents are certified copies of judgment passed by Judicial Courts, which are not required to be proved, and the same are relevant to the issue involved herein and would be helpful to decide the present appeal. Therefore, he added that the copies of both judgments are taken on record.
Adv. Abhishek Bhardwaj appeared for the appellants while Adv. D.K. Dixit appeared for the respondent.
Case Title: Nand Kishore & Anr. v. Saleem Khan
Citation: 2022 LiveLaw (Raj) 109
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