Code of Civil Procedure, 1908:
Or. LXI, r.2 proviso and r.27 – Additional evidence – In appellate court – Accepted and simultaneously judgment pronounced in the main case, without giving opportunity to the opposite party to lead evidence in rebuttal or to give an opportunity to explain – Held: Proviso to r. 2 of Order LXI engrafts rule of natural justice and fair play, by providing that the court is obliged to grant a sufficient opportunity to the contesting party, if any new ground is allowed, which may affect the contesting party – In the present case High Court (appellate court) in the interest of justice, was obliged to grant opportunity to the respondents in the appeal either to lead evidence in rebuttal or to explain the alleged admissions in the additional documents – Matter remitted to High Court to decide the appeal afresh after giving opportunity to opposite party to lead evidence in rebuttal – Principles of Natural Justice.
Allowing the appeal, the Court
HELD: 1. Order LXI, Rule 27 of the CPC, which deals with the provision of additional evidence in Appellate Court provides for the grounds and circumstances on which the Appellate Court may allow such evidence or documents or witnesses to be examined. Order LXI, Rule 27 sub-rule(2) further provides that wherever additional evidence is allowed to be produced by an Appellate Court, the court shall record a reason for its admission. Order LXI, Rule 27 is silent as to the procedure to be adopted by the High court after admission of additional evidence. Whether after admission of additional evidence, it is necessary for the Appellate Court to grant opportunity to the other party to lead evidence in rebuttal or to give any opportunity is not expressly provided in Order LXI, Rule 27. [Para 11] [1092-A-C]
2. Order LXI, Rule 2 CPC provides that the appellant shall not, except by leave of the court, be allowed to urge any ground in the appeal, which is not set forth in the memorandum of appeal. The proviso to Order LXI, Rule 2 engrafts a rule, which obliged the Court to grant a sufficient opportunity to the contesting party, if any new ground is allowed to be urged by another party, which may affect the contesting party. The provision engrafts rule of natural justice and fair play that contesting party should be given opportunity to meet any new ground sought to be urged. When Appellate Court admits the additional evidence under Order LXI, Rule 27, there is no reason for not following the same course of granting an opportunity to the contesting party, which may be affected by acceptance of additional evidence. [Para 13] [1092-FG]
3. In the present case, additional evidence, which were brought on the record were registered sale deeds, which were executed by present appellant and his other co-sharers and what was relied before the High Court was that the appellant admitted in the sale deeds that the partition has been taken place in the family. The main issue in the First Appeal before the High Court was as to whether the finding of the trial court that no partition by metes and bounds taken place in the family is correct or not. The additional evidence which was admitted has been relied by the High Court while allowing the appeal. It was in the interest of justice that High Court ought to have allowed opportunity to the plaintiffs, who were respondents to the First Appeal to either lead an evidence in rebuttal or to explain the alleged admissions as relied by the defendants. [Para 13] [1093-A-B]
4. The mere fact that no counter affidavit was filed to the I.A.s was not decisive. Since I.A.s having not been admitted, occasion for counter affidavit did not arise at any earlier point of time. The High Court on the same day, has allowed the I.A.s as well as the First Appeal. The fact that contesting respondents to the First Appeal, were not represented at the time of hearing of the First Appeal, was not a reason for not giving opportunity to them to lead evidence in rebuttal. [Para 13] [1093-C-D]
5. The submission of the learned counsel for the respondents that execution of sale deeds was never denied by the present appellant before the High Court, hence no error has been committed by the High Court in relying on the contents in the sale deed cannot be accepted. Even if, execution of sale deeds was not denied, the Appellate Court before which any statement in sale deeds is relied, ought to have given an opportunity to lead evidence in rebuttal or to explain the admission. Opportunity to explain the admission contained in the sale deeds was necessary to be given to the contesting party in the facts of the present case. The High Court erred in simultaneously proceeding with the hearing of the appeal after admitting additional evidence on record. The High Court ought to have given opportunity to contesting respondents in the First Appeal to lead evidence in rebuttal or to explain the alleged admission as contained in the sale deed, which having not been done, the order and judgment of the High Court deserves to be set aside. [Para 16] [1095-A-C]
Land Acquisition Officer, City Improvement Trust Board v. H. Narayaniah & Ors. (1976) 4 SCC 9 : [1977] 1 SCR 178 ; Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries) & Ors. (2010) 8 SCC
423 : [2010] 10 SCR 703 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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