Case Note & Summary
The matter arose from a dispute over partition, possession, and injunction concerning agricultural lands and house properties. The appellant, an elderly woman aged 76, was the original plaintiff in Regular Civil Suit No.273 of 2013, while respondent Nos.1 to 3 were contesting defendants and others were formal parties. The trial court partly decreed the suit on 10.01.2019, awarding the plaintiff half share in the properties described in plaint paragraphs 1A and 1B and restraining respondents from alienating the suit property. Aggrieved by that decree, respondent Nos.1 to 3 preferred Regular Civil Appeal No.74 of 2019. During pendency of the appeal, they filed application Exh.21 for amendment of the written statement, which the lower appellate court allowed on 17.09.2021. They also filed application Exh.27 under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for additional evidence, and the present appellant filed application Exh.36 for amendment of the plaint. Initially, Exh.27 was kept pending and directed to be decided at final hearing. The appellant challenged the orders below Exhs.21 and 27 by filing Writ Petition No.11528 of 2021 in the Bombay High Court. During that writ petition, the appellant filed an affidavit marked Exh.X, stating that she accepted the theory put forth by respondent No.1 in amended paragraph 9A, relinquished her right, title, and interest in respect of lands Gut Nos.645/1 and 645/2 and house property Nos.452/1 and 207, and that she had no claim in Gram Panchayat House No.207. On the basis of that affidavit, the High Court by order dated 30.08.2022 disposed of the writ petition, observing that additional evidence was not required and directing the appellate court to decide the appeal on merits expeditiously. Despite this, the lower appellate court by the impugned order allowed both applications Exh.27 and Exh.36 and remanded the matter to the trial court for a de novo trial. The appellant challenged that remand before the High Court in this appeal. The core legal issue was whether the lower appellate court erred in allowing additional evidence and remanding the matter despite the earlier High Court order and the plaintiff's affidavit relinquishing claims; whether the subsequent relinquishment of Gut No.644 removed the last remaining controversy; and whether the consequential amendment of plaint Exh.36 required remand. The appellant argued that the impugned order was contrary to the co-ordinate Bench order and misinterpreted it; no additional evidence was needed because the plaintiff had given up claims to the relevant properties; and during the hearing she also gave up claim to Gut No.644 through counsel's solemn statement. The respondents argued that Gut No.644 was not covered by affidavit Exh.X and was referred to in Exh.27; the lower appellate court rightly exercised jurisdiction under Order 41 Rules 27 and 28; and no prejudice would be caused by remand. The High Court considered the undisputed facts, reproduced the earlier writ petition order, and found that the lower appellate court's interpretation was perverse. The court held that the entire controversy stood settled to the extent of amended paragraphs 9A and 9B because the plaintiff had expressly given up her claims. The application Exh.36 was merely consequential and formal, in consonance with affidavit Exh.X and the earlier High Court order. Even regarding Gut No.644, the counsel's solemn statement and undertaking to file affidavit removed the only remaining factual dispute. The court emphasized that it must be consistent with the co-ordinate Bench's view and that remand was unwarranted because new facts pleaded after trial were not facts in issue requiring a trial. Accordingly, the appeal was allowed, the impugned judgment and order were quashed and set aside, application Exh.36 stood allowed, no remand was required, and the appellate court was directed to decide the appeal within six months. The civil application was disposed of accordingly, and the appellant was permitted to claim return of court fees.
Headnote
A) Civil Procedure - Additional Evidence in Appeal - Order 41 Rule 27 Code of Civil Procedure, 1908 - Additional Evidence Not Required After Plaintiff Relinquishes Claims in Amended Written Statement - In a partition suit appeal, the original plaintiff filed affidavit Exh.X giving up her claim to properties mentioned in amended written statement paragraphs 9A and 9B, namely Gut Nos.645/1, 645/2 and House Nos.452/1 and 207; the High Court's earlier order in Writ Petition No.11528 of 2021 directed the appellate court to decide the appeal on merits without additional evidence; the lower appellate court misinterpreted that order and allowed Exh.27, remanding for de novo trial; Held that the remand was perverse and unwarranted because no facts in issue required trial and the appellate court was competent to decide the appeal (Paras 5-6, 11-12, 15-16). B) Civil Procedure - Relinquishment of Claim During Appeal - Order 41 Rule 27 Code of Civil Procedure, 1908 - Counsel's Solemn Statement and Undertaking Removes Last Factual Dispute - During the appeal hearing, appellant counsel stated on instructions that the client gave up claim to Gut No.644, which was not mentioned in affidavit Exh.X but was referred to in application Exh.27; this undertaking removed the only remaining controversy; Held that even for that purpose remand was not necessary and the appellate court could decide the appeal on existing material (Paras 8, 10, 14).
Issue of Consideration
Whether the lower appellate court erred in allowing additional evidence application Exh.27 and remanding the matter for de novo trial despite the earlier High Court order and the plaintiff's affidavit relinquishing claims to certain suit properties; whether the plaintiff's subsequent relinquishment of Gut No.644 removed the last remaining controversy; whether the consequential amendment to the plaint Exh.36 required remand.
Final Decision
Appeal from Order allowed. Impugned judgment and order of lower appellate court quashed and set aside. Application Exh.36 stands allowed. Clarified that no remand of the matter for any purpose shall be required. The Appellate Court directed to decide the appeal within six months from the date of order. Civil Application No.9763 of 2023 disposed of accordingly. Appellant permitted to claim return of court fees.
Law Points
- Order 41 Rule 27 of CPC permits additional evidence only when required
- once plaintiff relinquishes claims in amended written statement
- no factual dispute remains warranting additional evidence or remand
- lower appellate court must be consistent with earlier coordinate bench order
- appeal can be decided on merits without de novo trial even after amendment of pleadings
