AKHILESH SINGH @ AKHILESHWAR SINGH versus LAL BABU SINGH & ORS.

Citation: [2018] 1 S.C.R. 1085 · Decided: 21-02-2018 · Supreme Court of India · Bench: A.K. SIKRI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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1085
AKHILESH SINGH @ AKHILESHWAR SINGH
v.
LAL BABU SINGH & ORS.
(Civil Appeal No. 2108 of 2018)
FEBRUARY 21, 2018
[A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
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
                                      [2018] 1  S.C.R. 1085
  1085
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SUPREME COURT REPORTS
[2018] 1 S.C.R.
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-F-
G]
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]
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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, h

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