Case Note & Summary
The dispute arose from a writ petition challenging an order passed by the first appellate court in a pending first appeal. The petitioners were the original plaintiffs in a suit for declaration of ownership and injunction, defending an appeal filed by the contesting respondents. They sought to produce a certified copy of a decree passed in Regular Civil Suit No.144/1969 by filing an application Exh-40 under Order XLI Rule 27 of the Code of Civil Procedure, 1908. The first appellate court rejected that application, leading to the present writ petition. The material facts show that a prior suit, Regular Civil Suit No.144/1969, was decided in 1969. The present suit was filed in 1997, and the plaint contained an averment regarding the existence of the previous litigation and decree. The petitioners did not produce the certified copy at an earlier stage but applied before the appellate court. The appellate court rejected the application, prompting the petitioners to approach the High Court. The core legal issue was whether the appellate court erred in deciding the application separately rather than along with the appeal, and whether the belated production of the certified copy should be allowed. The petitioners argued that the application should have been heard with the appeal; deciding it separately deprived them of necessary evidence and amounted to prejudging the issue. They relied on the decision in Sayyad Iqbal Sayyad Ismail Ustad v. Audumbar Ranganath Kotalwar. The respondents contended that the application suffered from delay and laches, lacked the specific grounds required under Order XLI Rule 27, and cited Roop Chand v. Gopi Chand Thelia and Lekhraj Bansal v. State of Rajasthan in support of rejection. They sought dismissal or, in the alternative, imposition of costs. The High Court recognized that Order XLI Rule 27 lays down specific circumstances under which additional evidence can be allowed at the appellate stage, and the decisions in Roop Chand and Lekhraj were relevant. However, the court observed that the plaint's averment about the prior decree showed that the petitioners were not hiding anything and that the respondents had notice of the decree. The appellate court's approach of examining the worth of the document separately was not proper. The appropriate course, as laid down in Malayalaym Plantations Ltd. v. State of Kerala, Union of India v. Ibrahim Uddin, and A. Andisamy Chettiar v. A. Subhuraj Chettiar, was to decide the application along with the appeal. The court distinguished Roop Chand and Lekhraj on the ground that those cases involved production of documents at the second appellate stage, not the first appellate stage. Accordingly, the High Court allowed the writ petition, quashed the impugned order, directed the first appellate court to decide application Exh-40 along with the main appeal without being influenced by earlier observations, and imposed costs of Rs.3000 to be deposited by the petitioners and withdrawable by the contesting respondents. The Rule was made absolute.
Headnote
A) Civil Procedure - Additional Evidence at Appellate Stage - Order XLI Rule 27 CPC - Appellate Court Must Decide Application Along With Appeal - Code of Civil Procedure, 1908, Order XLI Rule 27 - The first appellate court rejected petitioners' application to produce a certified copy of a prior decree separately, prejudging the document's worth. High Court held that the application should be decided along with the main appeal, as the plaint had already referred to the prior litigation, putting respondents on notice. Held: impugned order quashed and appellate court directed to decide application with appeal (Paras 7-14). B) Civil Procedure - Delay and Laches in Additional Evidence - Belated Production of Certified Copy of Public Document - Code of Civil Procedure, 1908, Order XLI Rule 27 - Although the decree was passed in 1969 and suit filed in 1997, no attempt was made earlier, but the plaint's averments demonstrated no intent to hide. Absent serious prejudice, belated production of certified copy of public document was permissible subject to costs. Held: petitioners directed to deposit Rs.3000 costs (Paras 8-13).
Issue of Consideration
Whether the first appellate court erred in rejecting the petitioners' application (Exh-40) under Order XLI Rule 27 of the Code of Civil Procedure, 1908, to produce a certified copy of a decree in Regular Civil Suit No.144/1969, without deciding it along with the appeal
Final Decision
The writ petition was allowed. The impugned order was quashed and set aside. The first appellate court was directed to decide application Exh-40 along with the main appeal without being influenced by its earlier observations or the observations of the High Court. The petitioners were directed to deposit costs of Rs.3000/- in the first appellate court, which the contesting respondents were entitled to withdraw. The Rule was made absolute.
Law Points
- Under Order XLI Rule 27 CPC
- an application for additional evidence at appellate stage should ordinarily be decided along with the main appeal
- belated production of a certified copy of a public document may be permitted where existence was pleaded and no serious prejudice is caused
- costs may be imposed to compensate delay
- decisions of Supreme Court in Roop Chand and Lekhraj distinguished as they involved second appellate stage
