Jamna Lal vs Ashok and Others

Narendra Kumar Jain, J.—Heard learned Counsel for the parties.

This is plaintiff''s regular first appeal u/s 96 of the CPC directed against the impugned judgment and decree dated 31st March, 1992 passed by the Special Judge, Decoity Affected Area, Karauli and Additional District & Sessions Judge, Karauli in Civil Suit No. 27/1992, whereby the trial court dismissed the plaintiff''s suit for recovery of a sum of Rs. 27,313.53p.

The plaintiff filed a suit for recovery against defendants in the trial court on the basis of written agreement dated 22nd November, 1976, Ex.-1, which was denied by the defendants, who were legal representative of late Shri Shiv Charan, who, according to plaintiff, executed the agreement Ex. 1. The trial court framed nine issues. During the course of arguments, the counsel for the defendants did not press issues No. 4 to 8, therefore, trial court decided only issues No. 1 to 3 and on the basis of finding thereon, dismissed plaintiff''s suit.

The learned Counsel for the appellant contended that finding of trial court in respect of issues No. 1 to 3 is absolutely illegal and perverse. Ex. 1, written agreement, was signed by late Shri Shiv Charan and his signature was fully proved from the statement of PW-1, Jamna Lal, who specifically stated on oath before the Court that Ex. 1 written agreement was executed and signed by Shiv Charan and his signatures are A to B. The trial court committed an illegality in not believing the aforesaid statement of PW-1 only on the basis that defendants'' witnesses denied the signature of Shiv Charan and they stated that Ex. 1 was not executed by Shiv Charan. It was contended that although the finding of trial court in respect of issues No. 1 to 3 are liable to be set-aside on the basis of present evidence available on record, but in addition to it, the appellant has moved one application before this Court under Order 41 Rule 27 CPC way back on 31st August, 1992 / 1st September, 1992 along-with three documents which may further prove the signature of Shiv Charan on written agreement Ex. 1. It has been mentioned in the application that although from the evidence available on record, the signature of Shiv Charan on Ex. 1 is fully proved, but in view of the fact that the trial court has observed that plaintiff should have proved the signature of Shiv Charan Ex. 1 by producing other evidence as deceased Shiv Charan was his relative, therefore, these documents may be taken on record. The details of these documents are as under-

(i) Photocopy of agreement dated 25.10.1976,

(ii) Certified copy of the pro-note dated 5.12.1976,

(iii) Certified copy of the judgment dated 4th July, 1991 in civil suit No. 6/1985 passed by the Additional District & Sessions Judge, Karauli wherein signature of Shiv Charan on the pro-note were found to be proved.

The learned Counsel for the appellant, therefore, contended that although the execution and signature of Shiv Charan on Ex. 1 is proved from the evidence led by the plaintiff, but if this Court is not satisfied, then the application under Order 41 Rule 27 CPC may be allowed and case be remanded back to the trial court with a direction to allow the plaintiff to place on record these documentary evidence and case be decided afresh.

The application under Order 41 Rule 27 CPC was listed before this Court on 23rd February, 1994 and it was ordered that the application will be heard at the time of final hearing of the appeal.

No reply to the above application has been filed by the respondents since 1992.

The learned Counsel for the respondents defended the impugned judgment and prayed for dismissal of the appeal as well as the application.

I have considered the submissions of learned Counsel for the parties and examined the impugned judgment as well as the record of the trial court. From the finding of the trial court in respect of issues No. 1 to 3, it is clear that issue No. 1 has been decided only on the basis of denial of signature of Shiv Charan on Ex. 1 agreement by defendants'' witnesses. The trial court has also observed that plaintiff was relative of late Shri Shiv Charan Lal and it could have produced more evidence including the documentary evidence to prove that signature of Shiv Charan Lal on Ex. 1 is same with his signature on other admitted documents. The appellant has filed an application under Order 41 Rule 27 CPC alongwith three documents. The second and third document, copy of pro-note and copy of judgment dated 4th July, 1991 are certified copies of the documents. The copy of the judgment dated 4th July, 1991 is a public document and a judicial notice of it can be taken. It is relevant to mention that the application was filed way back in the year 1992 and no reply to it has been filed by the defendant-respondents.

I have considered the contents of the application in the light of arguments of learned Counsel for both the parties and after considering the same in the light of three documents placed on record, I am of the view that these documents are relevant and material and will be helpful for proper adjudication of the present case and in these circumstances, the application filed by the appellant under Order 41 Rule 27 CPC deserves to be allowed and the same is hereby allowed.

The documents have not been exhibited in the case and they were not put for crossexamination of the opposite party, therefore, it will be just and proper in the interest of justice to remand the matter to the trial court for fresh decision with the direction to allow the plaintiff to place on record these documents in evidence in accordance with law.

Consequently the appeal is allowed. The impugned judgment and decree dated 31st March, 1992 passed by the trial court is setaside and case is remanded back to the trial court for fresh decision on merits.

The registry is directed to send the above referred three documents filed with the application under Order 41 Rule 27 CPC, alongwith the record of the case, to the trial court concerned immediately with a direction to take the documents on record, however, the same will be exhibited and proved by the plaintiff in accordance with law. It will be open for the defendants to lead evidence or file any other document in rebuttal thereof.

The cost is made easy.