Case Note & Summary
The appellant, Gopal Jainarayan Karwa, filed a Second Appeal against the judgment and order dated 19.9.1998 passed by the learned 2nd Additional District Judge, Wardha, in Regular Civil Appeal No. 136/1994, whereby the appeal was dismissed. The appellant had originally instituted Regular Civil Suit No. 115/1981 on 7th April, 1981, seeking relief in respect of agricultural land admeasuring 7 acres described as agricultural field No. 424344455556/4, situated at Mouza DhivriPipri, Tq. Hinghanghat, District Wardha. The suit was dismissed by the learned Civil Judge, Junior Division, Hinghanghat, by judgment and order dated 7th May, 1994. The appellant contended that he had purchased the land under a registered sale deed and became its owner. The Second Appeal was admitted on the substantial question of law whether the judgments of the courts below were vitiated for failure to consider material evidence, namely a decree passed in Regular Civil Suit No. 241/1973 on 26.2.1975 and a possession receipt (Exh.37) which was a public document. The appellant's counsel argued that the non-consideration of this evidence entitled the appellant to a decree. The court, after hearing the appellant's counsel and noting that no one appeared for the respondent, allowed the appeal, set aside the impugned judgments, and remanded the matter to the trial court for fresh consideration of the evidence, particularly the decree and the possession receipt. The court directed the trial court to decide the suit afresh within six months.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 CPC - The court considered whether the judgments of the lower courts were vitiated for failure to consider material evidence, namely a prior decree and a possession receipt which was a public document. The High Court held that the failure to consider such evidence constituted a substantial question of law warranting interference. (Paras 3-4) B) Evidence Act - Public Document - Possession Receipt - Section 74 Evidence Act - The possession receipt (Exh.37) was a public document and its non-consideration by the courts below vitiated their judgments. The court held that such evidence was material and ought to have been considered. (Paras 3-4)
Issue of Consideration
Whether the judgments passed by the Courts below are vitiated for failure to consider the material evidence i.e. decree passed in Regular Civil Suit No. 241/1973 on 26.2.1975 as well as the possession receipt (Exh.37) which was a public document and was entitled the appellant's suit to be decreed.
Final Decision
Second Appeal allowed. Impugned judgment and order dated 19.9.1998 passed in Regular Civil Appeal No. 136/1994 and judgment and order dated 7.5.1994 passed in Regular Civil Suit No. 115/1981 are set aside. The matter is remanded to the trial court for fresh consideration of the evidence, particularly the decree in Regular Civil Suit No. 241/1973 and possession receipt (Exh.37). The trial court to decide the suit afresh within six months from the date of receipt of the order.
Law Points
- Substantial question of law
- Consideration of material evidence
- Public document
- Vitiated judgment
