Case Note & Summary
The appellant, Shrikrishna Vasudev Patil, filed an appeal against the judgment and decree dated 27/12/2010 passed by the District Judge-2, North Goa, Panaji, which partly allowed the appeal filed by the respondents (Baburao Vasudev Patil and Sudha Baburao Patil) against the judgment and decree dated 30/01/2010 of the Civil Judge Junior Division, Ponda. The trial court had decreed the suit in favor of the appellant based on a Deed of Settlement dated 24/08/1991, under which plot 'C' was allotted to the appellant, plot 'B' to the respondents, and plot 'A' to their third brother. The respondents had alleged in their written statement that the plan annexed to the Deed of Settlement was altered or modified by the appellant, but they failed to prove this allegation during trial. The trial court framed issues and decreed the suit in favor of the appellant. The respondents appealed to the District Court, which allowed their application under Order XLI Rule 27 CPC for additional evidence and remanded the matter to the trial court for fresh decision after taking the documents on record. The appellant challenged this remand order in the High Court under Order XLIII Rule 1(u) CPC. The High Court formulated the substantial question of law as whether the first appellate court was justified in allowing the application under Order XLI Rule 27 CPC and remanding the matter. The High Court heard arguments from Shri S.D. Lotlikar, Senior Counsel for the appellant, and Shri J.A. Lobo, Advocate for the respondents. The High Court held that the first appellate court exceeded its jurisdiction by allowing additional evidence without satisfying the conditions of Order XLI Rule 27 CPC and by remanding the matter without proper justification. The High Court allowed the appeal, set aside the impugned judgment and decree of remand, and restored the appeal to the file of the first appellate court for fresh disposal in accordance with law.
Headnote
A) Civil Procedure - Remand - Order XLI Rule 27 CPC - Additional Evidence - The first appellate court allowed an application for additional evidence and remanded the matter to the trial court. The High Court held that the appellate court exceeded its jurisdiction as the conditions for admitting additional evidence under Order XLI Rule 27 CPC were not satisfied. The appellate court must record reasons for allowing additional evidence and cannot remand merely to fill gaps in evidence. (Paras 1-3)
Issue of Consideration
Whether the first appellate court was justified in allowing the application under Order XLI Rule 27 CPC for additional evidence and remanding the matter to the trial court.
Final Decision
The High Court allowed the appeal, set aside the impugned judgment and decree of remand dated 27/12/2010 passed by the District Judge-2, North Goa, Panaji, and restored the appeal to the file of the first appellate court for fresh disposal in accordance with law.
Law Points
- Order XLI Rule 27 CPC
- Order XLIII Rule 1(u) CPC
- Section 100 CPC
- Remand
- Additional evidence
- Deed of Settlement
Case Details
2018 LawText (BOM) (06) 130
Appeal From Order No.12 of 2011 with Cross Objection No.2 of 2012
Shri S.D. Lotlikar, Senior Advocate with Ms. A. Naik, Advocate for the Appellant; Shri J. A. Lobo, Advocate for the Respondents
Shri Shrikrishna Vasudev Patil
Shri Baburao Vasudev Patil and Smt. Sudha Baburao Patil
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Nature of Litigation
Appeal from Order challenging a remand order passed by the District Court in a property dispute.
Remedy Sought
The appellant sought to set aside the judgment and decree of remand passed by the District Judge-2, North Goa, Panaji.
Filing Reason
The appellant challenged the first appellate court's decision to allow additional evidence under Order XLI Rule 27 CPC and remand the matter to the trial court.
Previous Decisions
The trial court (Civil Judge Junior Division, Ponda) decreed the suit in favor of the appellant on 30/01/2010. The respondents appealed to the District Court, which partly allowed the appeal and remanded the matter on 27/12/2010.
Issues
Whether the first appellate court was justified in allowing the application under Order XLI Rule 27 CPC for additional evidence and remanding the matter to the trial court.
Submissions/Arguments
Shri S.D. Lotlikar, learned Senior Counsel for the appellant, submitted that the first appellate court erred in allowing the application under Order XLI Rule 27 CPC and remanding the matter, as the respondents had failed to prove their case during trial despite due opportunity.
Ratio Decidendi
The first appellate court exceeded its jurisdiction under Order XLI Rule 27 CPC by allowing additional evidence without satisfying the conditions for its admission and by remanding the matter without proper justification. The appellate court must record reasons for allowing additional evidence and cannot remand merely to fill gaps in evidence.
Judgment Excerpts
This appeal challenges the judgment and decree dated 27/12/2010 passed by the District Judge-2, North Goa, Panaji pursuant to which the learned District Judge partly allowed the appeal filed by the respondents against the judgment and decree dated 30/01/2010 passed by the Civil Judge Junior Division, Ponda and remanded the matter to the Trial Court for deciding the matter afresh after taking the documents on record.
It was the contention of Shri Lotlikar, learned Senior Counsel that pursuant to the Deed of Settlement dated 24/08/1991, the plot 'C' was allotted to the appellant, plot 'B' to the respondent and plot 'A' was allotted to their third brother.
Procedural History
The trial court (Civil Judge Junior Division, Ponda) decreed the suit in favor of the appellant on 30/01/2010. The respondents appealed to the District Court (District Judge-2, North Goa, Panaji), which partly allowed the appeal and remanded the matter on 27/12/2010. The appellant then filed the present Appeal From Order No.12 of 2011 in the High Court of Bombay at Goa, challenging the remand order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XLI Rule 27, Order XLIII Rule 1(u), Section 100
