Gangacharan Jaiswal vs Shekh Altaf, Shekh Azaz Ahmad and Sekh Ahfaz Ahmad

Hon''ble Shri Justice A.K. Shrivastava

Feeling aggrieved by the judgment dated 31.07.2009 passed by learned Second Additional District Judge, Betul in Civil Appeal No. 23-A/2008 whereby judgment and decree passed by learned Civil Judge, Class-I, Betul in Civil Suit No. 7-A/2007 decided on 06.08.2007 has been set aside by allowing the application under Order XLI Rule 27 CPC and the case has been remanded back to learned Trial Court to re-decide the suit. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal since they have been stated in para 3 and 4 of the impugned judgment. Suffice it to say that a suit for declaration and injunction in respect of certain immovable property, the description whereof has been mentioned in the plaint and which is the subject matter of the suit has been filed by the plaintiffs on the ground of title as well as possession. According to the plaintiffs they are the owner of the suit property and defendant is illegally interfering in their possession and is also challenging their title. The defendant (appellant herein) filed written-statement and denied the plaint averments including the title of the plaintiffs.

Learned Trial Court framed necessary issues and after recording the evidence of the parties, dismissed the suit. The plaintiffs preferred first appeal before learned First Appellate Court and also filed an application under Order XLI Rule 27 CPC. Learned First Appellate Court after hearing the first appeal on merits and appreciating the oral and documentary evidence of the parties vis-�-vis to each other found that application under Order XLI Rule 27 CPC is required to be allowed and eventually by allowing that application, set aside the impugned judgment and decree and remanded the matter to learned Trial Court to re-decide the suit.

In this manner, this appeal has been filed by the defendant.

The contention of Shri Bhave, learned Senior Counsel is that as per plaintiffs'' own showing the documents which were filed by them in the First Appellate Court were filed because after going through the judgment of learned Trial Court they felt that those documents are necessary and thus the application is beyond the ambit and scope of Order XLI Rule 27 CPC. Learned Senior Counsel further submits that suit is also barred by time and therefore learned First Appellate Court ought to have dismissed the suit on the ground of limitation as well while dismissing the appeal of plaintiffs.

On the other hand Shri Tripathi, learned counsel appearing for plaintiffs/respondents argued in respect of impugned judgment and submitted that cogent reasons have been assigned by learned First Appellate Court in remanding the matter and therefore there is no ground to interfere in the judgment. Learned counsel further submits that the documents of title despite due diligence, could not be filed in the Trial Court when the suit was pending and therefore they were filed in the Appellate Court alongwith application under Order XLI Rule 27 CPC. Learned counsel submits that argument of learned Senior Counsel for appellant should be read in context of para 3 of the application wherein it has been specifically mentioned that despite due diligence the documents could not be filed in the Trial Court and therefore it was filed in the Appellate Court when after searching them they were found. Learned counsel submits that even if in these facts and circumstances in para 7 of the application under Order XLI Rule 27 CPC of it is mentioned that the plaintiffs felt it necessary to file those documents at appellate stage, is only a typographical error. Hence, it has been prayed that this appeal be dismissed.

Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed.

On bare perusal of the impugned judgment it is gathered that by allowing the application under Order XLI Rule 27 CPC learned First Appellate Court set aside the judgment and decree of the learned Trial Court. The main ground for dismissal of the suit of plaintiffs is that the document of title was not filed in the Trial Court. On bare perusal of the application under Order XLI Rule 27 CPC and by paying heed to averments made in para 3 of that application, it is gathered that despite due diligence the plaintiffs could not obtain the original document of title which is necessary for real adjudication of the suit and to determine the right of the parties. Although in reply to application under Order XLI Rule 27 CPC the averments made in the application are denied by the defendant/appellant. In specific words in para 3 of the application it has been stated by the plaintiffs that on searching the old record they were able to find out the documents. In this view of the matter, looking to the reasons assigned by learned First Appellate Court in allowing application under Order XLI Rule 27 CPC I find that learned First Appellate Court did not commit any error in setting aside the impugned judgment and decree of the learned Trial Court. For the reasons stated by learned First Appellate Court I find that looking to the limited scope of Order XLI Rule 27 (aa) CPC the plaintiffs have made out their case to allow the application.

So far as the point of limitation is concerned, suffice it to say that learned Senior Counsel frankly submitted that this point was never raised in either of the Courts below and therefore for the first time when the case is remanded by learned First Appellate Court to learned Trial Court this Court is refraining to deal this ground and it is open for the Trial Court to decide this point. This appeal being bereft of any substance, is hereby dismissed. No costs.