AKHILESH SINGH @ AKHILESHWAR SINGHversusLAL BABU SINGH & ORS.

                          [2018] 1 S.C.R. 1085                             1085


         AKHILESH SINGH @ AKHILESHWAR SINGH                                A
                                   v.

                    LAL BABU SINGH & ORS.
                   (Civil Appeal No. 2108 of 2018)
                                                                           B
                        FEBRUARY 21, 2018
          [A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
      Code of Civil Procedure, 1908:
                                                                           C
       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      D
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
                                                                           E
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                  F
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           G
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          H
                                1085
1086            SUPREME COURT REPORTS                      [2018] 1 S.C.R.


 A     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.
 B     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
 C     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-F-
       G]
 D           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
 E
       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
 F     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,
 G     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]
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 AKHILESH SINGH @ AKHILESHWAR SINGH v. LAL BABU                        1087
                  SINGH & ORS.

      5. The submission of the learned counsel for the                 A
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
                                                                       B
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         C
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
                                                                       D
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               E
      423 : [2010] 10 SCR 703 – relied on.

                       Case Law Reference

      [1977] 1 SCR 178           relied on            Para 14
                                                                       F
      [2010] 10 SCR 703          relied on            Para 15

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2108
of 2018.

      From the Judgment and Order dated 08.03.2017 of the High Court   G
of Judicature at Patna in First Appeal No.704 of 1976.

      Moni Cinmoy, Arvind Kr. Pandey, Rakesh Kr. Singh, Ashok Anand,
Advs for the appearing parties.
                                                                       H
1088             SUPREME COURT REPORTS                             [2018] 1 S.C.R.


 A            The Judgment of the Court was delivered by

              ASHOK BHUSHAN, J. 1. This appeal has been filed against
       the judgment of Patna High Court dated 08.03.2017 in First Appeal No.
       704/1976 by which the First Appeal filed by defendants to the suit has
       been allowed setting aside the judgment and decree of the trial court
 B     decreeing the partition suit.
              2. The brief facts of the case which need to be noted for deciding
       this appeal are:-
              Title Suit No. 406/1973 was filed by one Sheo Prasad Singh
 C     (Grandfather of appellant before us) and his three sons seeking partition
       of their 1/4th share in joint family properties described in Schedule B, C
       and D of the plaint. In the plaint, it was pleaded that plaintiffs and
       defendants are descendants of a common ancestor. Kalpoo Singh had
       four sons. Plaintiffs represented branch of Sheo Prasad Singh whereas
       defendants represented other three branches.
 D
                It was pleaded that there was a disruption in the joint family in
       or around 1963. Whereafter, all the branches of Kalpoo Singh separated
       in their mess, business and worship but cultureable land and residential
       houses remained joint. Order passed by Commissioner, Patna Division
       arising out of a proceeding for mutation on respective land was also in
 E     question. Trial court vide its judgment and decree dated 10.08.1976
       decreed the suit of the plaintiff declaring 1/4th share of the plaintiff in the
       properties described in Schedule B, C and D. The defendants Lal Babu
       Singh & Ors. filed First Appeal No. 704 of 1976 against the judgment
       and decree of the trial court. During pendency of the First Appeal, the
 F     defendants-respondents, who were appellant in First Appeal, filed various
       applications under Order LXI Rule 27 Code of Civil Procedure for
       acceptance of additional evidence in the First Appeal. The first application
       under Order LXI Rule 27 was filed on 27.10.1997 for accepting a Sale
       Deed dated 27.08.1992 on the record. Other applications filed for
       accepting additional evidence were I.A. No. 6457 of 1998, I.A. No.
 G     3731 of 2011 and I.A. No. 5195 of 2016. High Court has passed an
       order on the I.A.s that applications shall be heard at the time of hearing
       of the appeal. The First Appeal came to be heard by the High Court on
       08.03.2017. At the time of hearing, unfortunately, nobody appeared on
       behalf of appellant, who was respondent in the First Appeal. The High
       Court after hearing the learned counsel for the defendants-respondents
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 AKHILESH SINGH @ AKHILESHWAR SINGH v. LAL BABU                                  1089
         SINGH & ORS. [ASHOK BHUSHAN, J.]

allowed I.A. No. 6457 of 1998, I.A. No. 3731 of 2011 and I.A. No. 5195           A
of 2016 by accepting the additional evidence, which was sought to be
brought on record. Simultaneously, the High Court proceeded with the
hearing of the appeal and relying on additional evidence allowed the
First Appeal setting aside the judgment and decree of the trial court.
The appellant aggrieved by the judgment of the High court has come up
                                                                                 B
in this appeal.
       3. Learned counsel for the appellant contended that in event the
High Court decided to admit the additional evidence under Order XLI
Rule 27 CPC, the High Court ought to have given opportunity to the
plaintiff-respondent to rebut the additional evidence brought on record
by the defendants. The High Court having not given any such opportunity          C
to plaintiff has committed serious error of procedure, which has caused
great prejudice to present appellant vitiating the entire judgment of the
High Court. It is submitted that the High Court in the additional evidence
has relied on certain admissions by the appellant and other co-sharers
whereas the appellant was not given any opportunity by the Court to              D
lead evidence in rebuttal and explain the additional evidence relied by
defendants-respondents. Learned counsel submits that the reliance on
such additional evidence without giving opportunity to lead evidence in
rebuttal had vitiated the entire procedure adopted by the High Court,
vitiating the judgment and decree of the High Court.
                                                                                 E
       4. Learned counsel for the respondents refuting the submission
of the counsel for appellant contends that the High Court has rightly
relied on the admissions contained in the additional evidence, which was
admitted by the High Court since although respective I.A.s were filed
long before but neither any counter affidavit to the I.A.s nor any
explanations were ever submitted by the plaintiff appellant. The High            F
Court thus has no choice except to proceed to decide appeals relying on
the additional evidence admitted in the Court. It is submitted that the
execution of sale deeds which were relied, was never disputed nor the
statements contained in the sale deeds were even disputed by plaintiff-
appellant before the High Court. Hence, no error has been committed              G
by the High Court in relying on the additional evidence. He submits that
the High Court itself has noticed in the order that I.A.s filed by defendants-
respondents for accepting additional evidence were never objected by
filing a counter affidavit by the plaintiff.

                                                                                 H
1090             SUPREME COURT REPORTS                              [2018] 1 S.C.R.


 A            5. Learned counsel further submits that there being clear
       admissions in the sale deeds, which were brought on the record that
       there has been partition in the family, suit of the plaintiff for partition has
       rightly been dismissed.
             6. We have considered the submissions of the learned counsel for
 B     the parties and perused the records.
             7. The submission which has been pressed before us by the learned
       counsel for the appellant that the High Court ought to have granted
       opportunity to the plaintiffs-appellants, who were respondents in the First
       Appeal before the High Court after accepting the additional evidence as
 C     prayed by defendant-appellant in the First Appeal; we thus confine our
       consideration to this issue alone.
              8. The record reveals that additional evidence, which was sought
       to be taken on record by the defendants, who were appellants before
       the High Court were all the evidences, which came into existence after
 D     the decree of the trial court. The applications filed under Order
       LXI Rule 27 CPC have been considered by the High Court in Paragraphs
       22 to 25 of its judgment. The application dated 27.10.1997 having been
       rejected by the High Court, no further comment is needed. After referring
       to the other I.A.s in Paragraphs 23, 24 and 25 of the judgment, the High
       Court allowed the three I.A.s, namely, I.A. No. 6457 of 1998, I.A. No.
 E     3731 of 2011 and I.A. No. 5195 of 2016 and relying on the additional
       evidence, brought on the record and referring to admissions in the said
       documents, the High Court has allowed the First Appeal by setting aside
       the judgment and decree of the trial court. In Para 26, 30 and 31, following
       has been stated:-
 F            “26. It may be mentioned here that all these documents were not
              available during the trial and moreover, these documents are the
              documents of the plaintiffs-respondents and the appellants had no
              knowledge earlier. During the pendency of this appeal, these docu-
              ments have been executed by the plaintiffs-respondents wherein
 G            they clearly admitted the previous partition between four branches
              i.e. sons of Kalpoo Singh and even they admitted inter se partition
              between themselves. It is not their statement in the sale deeds or
              the plaint or the application that partition is effected after disposal
              of partition suit. In all the sale deeds, the application, the plaintiffs

 H
 AKHILESH SINGH @ AKHILESHWAR SINGH v. LAL BABU                                 1091
         SINGH & ORS. [ASHOK BHUSHAN, J.]

      themselves admitted previous partition between the parties i.e.           A
      prior to institution of the suit for partition. The appellants claimed
      previous partition in the year 1958-59 whereas the plaintiffs
      admitted in the plaint filed by them for inter se partition that there
      had already been partition between four brothers in 1965. Now,
      therefore, only dispute between the parties is in which year partition
                                                                                B
      took place. It may be mentioned here that this partition suit is of
      the year 1973. Therefore, whether partition took place in 1958-59
      or in the year 1965, it is irrelevant because prior to the present
      partition suit the parties have already partitioned the suit property.
      30. In view of my above discussion, the three I.As. filed by the
      appellants are hereby allowed and on the basis of the evidences           C
      discussed above, I come to the conclusion that the appellants have
      been able to prove that there had already been partition as claimed
      by the defendants-appellants. There is no unity of title and
      possession between the parties. It appears that the court below
      has not properly appreciated the evidences as discussed above             D
      and moreover, the documentary evidences produced by the
      appellants by way of additional evidences were not available during
      trial. Thus, the finding of the learned trial court is hereby reversed.
      31. In the result, this First Appeal is allowed. The impugned
      judgment and decree are set aside. The plaintiffs-respondent’s            E
      suit for partition is hereby dismissed.”
      9. It is also relevant to note that the High Court in its judgment in
Para 11 has stated that applications were directed to be heard at the
time of hearing and although the I.A.s had been filed long ago nor any
counter-affidavit or any reply has been filed and nobody appeared to            F
controvert the case of the appellant.
       10. As noticed above, the High Court while allowing the I.A.s and
accepting the additional evidence on record proceeded to pronounce the
judgment simultaneously. The question to be answered in this appeal is
as to whether the High Court ought to have granted an opportunity to            G
the defendant-appellant, who was respondent in the First Appeal to lead
evidence in rebuttal or to give an opportunity to explain the alleged
admissions, which were relied by the defendant-appellant before the
High Court.

                                                                                H
1092             SUPREME COURT REPORTS                            [2018] 1 S.C.R.


 A            11. 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
 B
       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
 C     LXI Rule 27.
              12. One provision, which is part of Order LXI, which also needs
       to be noted is Order LXI Rule 2, which is as follows:-
              2. Grounds which may be taken in appeal.- The appellant
       shall not, except by leave of the court, urge or be heard in support of any
 D     ground of objection not set forth in the memorandum of appeal; but the
       appellate court, in deciding the appeal, shall not be confined to the grounds
       of objections set forth in the memorandum of appeal or taken by leave
       of the court under this rule:Provided that the Court shall not rest its
       decision on any other ground unless the party who may be affected
 E     thereby has had a sufficient opportunity of contesting the case on that
       ground.
               13. Order LXI Rule 2 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
 F     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
 G     LXI Rule 27, we fail to see any reason for not following the same course
       of granting an opportunity to the contesting party, which may be affected
       by acceptance of additional evidence. 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
 H
 AKHILESH SINGH @ AKHILESHWAR SINGH v. LAL BABU                               1093
         SINGH & ORS. [ASHOK BHUSHAN, J.]

what was relied before the High Court was that the appellant admitted         A
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
                                                                              B
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. 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    C
point of time. The High Court on the same day, i.e. 08.03.2017 has
allowed the I.A.s as well as the First Appeal. The fact that contesting
respondents to the First Appeal, who are appellant before us 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.
                                                                              D
       14. A three-Judge Bench of this Court in Land Acquisition
Officer, City Improvement Trust Board Vs. H. Narayanaiah & Ors.,
(1976) 4 SCC 9 had occasion to consider Order LXI Rule 27 in context
of admission of additional evidence by Appellate Court. This Court had
observed that in event the High Court admits an additional evidence, an
opportunity should have been given to the other party to rebut any            E
inference arising from its existence by leading evidence. In Para 28 of
the judgment, following has been laid down:-
      “28. The Karnataka High Court had, however, not complied with
      provisions of Order 41 Rule 27 of the CPC which require that an
      appellate court should be satisfied that the additional evidence is     F
      required to enable it either to pronounce judgment or for any other
      substantial cause. It had recorded no reasons to show that it had
      considered the requirements of Rule 27 Order 41 of the CPC We
      are of opinion that the High Court should have recorded its reasons
      to show why it found the admission of such evidence to be               G
      necessary for some substantial reason. And if it found it necessary
      to admit it, an opportunity should have been given to the
      appellant to rebut any inference arising from its existence by
      leading other evidence.”
                                               (emphasis supplied by us)      H
1094            SUPREME COURT REPORTS                          [2018] 1 S.C.R.


 A            15. To the same effect is another judgment of this Court in the
       case of Shalimar Chemical Works Limited Vs. Surendra Oil and
       Dal Mills (Refineries) & Ors., (2010) 8 SCC 423. In this case also,
       the Court had occasion to consider Order LXI Rule 27, this Court has
       again laid down that when documents are taken in additional evidence,
       an opportunity ought to have been given to other party to lead evidence
 B
       in rebuttal. In the above case also, the High Court simultaneously
       proceeded to decide the appeal alongwith admitting additional evidence
       on record. In Paragraphs 16 to 18 following has been laid down:-
             “16. The learned Single Judge rightly allowed the appellant’s plea
             for production of the original certificates of registration of trade
 C           mark as additional evidence because that was simply in the interest
             of justice and there was sufficient statutory basis for that under
             clause (b) of Order 41 Rule 27. But then the Single Judge seriously
             erred in proceeding simultaneously to allow the appeal and not
             giving the respondent-defendants an opportunity to lead evidence
 D           in rebuttal of the documents taken in as additional evidence.
             17. The Division Bench was again wrong in taking the view that
             in the facts of the case, the production of additional evidence was
             not permissible under Order 41 Rule 27. As shown above, the
             additional documents produced by the appellant were liable to be
             taken on record as provided under Order 41 Rule 27(b) in the
 E
             interest of justice. But it was certainly right in holding that the
             way the learned Single Judge disposed of the appeal caused serious
             prejudice to the respondent-defendants. In the facts and
             circumstances of the case, therefore, the proper course for the
             Division Bench was to set aside the order of the learned Single
 F           Judge without disturbing it insofar as it took the originals of the
             certificates of registration produced by the appellant on record
             and to remand the matter to give opportunity to the respondent-
             defendants to produce evidence in rebuttal if they so desired. We,
             accordingly, proceed to do so.
 G           18. The judgment and order dated 25-4-2003 passed by the Division
             Bench is set aside and the matter is remitted to the learned Single
             Judge to proceed in the appeal from the stage the originals of the
             registration certificates were taken on record as additional
             evidence. The learned Single Judge may allow the respondent-
             defendants to lead any rebuttal evidence or make a limited remand
 H           as provided under Order 41 Rule 28.”
 AKHILESH SINGH @ AKHILESHWAR SINGH v. LAL BABU                               1095
         SINGH & ORS. [ASHOK BHUSHAN, J.]

       16. The submission of the learned counsel for the respondents          A
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
                                                                              B
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. We thus are of the opinion that 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             C
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. The High Court may now proceed to
decide the appeal afresh after giving an opportunity to the present
                                                                              D
appellant to lead evidence in rebuttal. The appeal before the High Court
being pending since 1976, we expect that the High Court should conclude
the entire process expeditiously preferably within a period of six months
from the date of production of this judgment before the High Court. We
make it clear that we have not expressed any opinion on merits of the
case and it is for the High Court to consider the First Appeal on merits      E
afresh and take a decision in accordance with law. In result, this appeal
is allowed, judgment and decree of the High Court is set aside. The
First Appeal be decided by the High Court afresh as observed above.
Parties shall bear their own costs.
                                                                              F
Kalpana K. Tripathy                                         Appeal allowed.




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