Madhya Pradesh High Court
Smt. Uma Tiwari vs Brijmohan on 7 August, 2025
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:18224
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 7 th OF AUGUST, 2025
MISC. APPEAL No. 4643 of 2019
SMT. UMA TIWARI
Versus
BRIJMOHAN AND OTHERS
Appearance:
Shri Santosh Agrawal - Advocate for the petitioner.
Shri Rohit Shrivastava- Government Advocate for respondent
No.4/State.
ORDER
This misc. appeal under Order 43 Rule 1(u) of CPC has been filed by
appellant- defendant No.2 assailing the impugned judgment and decree dated
24-07-2019 passed by Second Additional District Judge, Karera, District
Shivpuri in Regular Civil Appeal No.22-A of 2016, whereby the appeal filed
by respondents no.1 and 2/plaintiffs has been allowed and while allowing the
application of plaintiffs under Order 41 Rule 27 of CPC, the judgment and
decree dated 06-02-2016 passed by Additional Civil Judge, Class-I, Karera,
District Shivpuri in Civil Suit No. 55-A of 2013 has been set aside and the
matter has been remanded to the trial Court for fresh adjudication.
(2) Necessary facts for disposal of present appeal, in short, are that a
civil suit was filed by plaintiffs seeking declaration and injunction. It was
pleaded that they are owners and are in possession of 1/2 share of land
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bearing survey no. 1103, 1104, 1106, 1117, 1672, admeasuring are 2. 53
hectares and land bearing survey nos. 966, 971, 976, 1002, 1003, 1005, 1006
and 1007 admeasuring area 29.39 hectares situated in Village Jujhai, Tehsil
Karera, District Shivpuri. Plaintiffs further sought declaration that the sale
deed dated 14.05.2009 executed in favour of defendant No.2/appellant to be
void. It was pleaded that plaintiffs and defendant No.1 are members of joint
family and Manger of Family was Rajaram (father of defendant No.1) and
grandfather of plaintiff No.1 and father-in-law of plaintiff no.2. During his
lifetime, Rajaram divided property in between his both sons Damodar Prasad
and Vasudev Prasad. Rajaram died on 07-12-1982 and his wife Khesar died
in 1995. Heirs of Rajaram got muted the land in dispute in their favour.
Father of plaintiff no.1 raised an objection and filed an appeal before the
SDO, Karera whereby matter was remanded to Tahsildar. Thereafter,
defendant No.1 given his consent for mutation of name of father of plaintiff
No.1 on 1/4th share and father of plaintiff No.1 fell in ill and died on 21-10-
2009. The Tahsildar again passed an order of mutation in favour of
defendant No.1 and defendant No.1 sold the property in question 1/4th share
to defendant no.2.
(3) Defendants filed written statement and denied plaint averments and
pleaded that plaintiffs and defendants were not members of joint family.
Defendant no.1 earned disputed property from his self-earning and denied the
oral partition and about the consent for mutation in the name of Damodar. It
was further pleaded that Tahsildar has rightly passed order of mutation and
father of plaintiff No.1 did not object the proceedings of Tahsildar nor file
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any appeal or revision. He has sold the property in dispute to defendant No.2
in order to meet household-expenses. It was further pleaded that the partition
dated 05-01-1975 is an unregistered document and on the basis of such
partition, no right is accrued in favour of plaintiffs and such partition is not
admissible in evidence. He has sold the property in question to defendant
No.2 for consideration of Rs.1,43,500/-.
(4) On the basis of pleadings of parties, trial Court framed issues and
after recording the evidence of parties, dismissed the suit filed by the
plaintiffs vide judgment and decree dated 06-02-2016 holding that plaintiffs
failed to prove that the disputed land was of father of plaintiff no.1 and
husband of plaintiff no.2 Damodar Prasad and the so-called partition is not a
registered document, therefore, the same cannot be admissible in evidence
and the so-called consent given before the Tahsildar cannot be a source of
title and it does not make any difference about the title of plaintiffs and
defendant no.2 is in possession since the date of execution of sale deed.
(5) Being dissatisfied, plaintiffs filed a civil appeal before the First
Appellate Court and the first appellate Court by setting aside the impugned
judgment and decree passed by the trial Court, allowed the application of
plaintiffs under Order 41 Rule 27 of CPC and remanded the matter to the
Trial Court for fresh decision. Hence, this misc. appeal.
(6) It is contended on behalf of appellant that the first appellate Court
has committed an error in allowing the application under Order 41 Rule 27
of CPC. The case in hand does not warrant any retrial and an opportunity
should be given to the plaintiffs in order to fill up the lacuna. In absence of
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requirements mentioned in Order 41 Rule 27 of CPC, the first appellate
Court has committed an error in allowing such application. Written
Statement was filed on 29th of July, 2013 and evidence of plaintiffs was well
within the knowledge of plaintiffs but they did not choose to take such so-
called document on record in trial. Placing reliance on the decision of
Hon’ble Apex Court in the case of Shivakumar and Others vs.
Sharanabasappa and Others, reported in 2021(11) SCC 277, it is submitted
that order of remand should not be passed in routine manner because
unwarranted order of remand merely elongates life of litigation without
serving cause of justice. The First Appellant ought to have decided the
appeal on its own merit rather to remand the matter by setting aside the
judgment and decree passed by trial Court.
(7) Heard learned Counsel for the appellant.
(8) For ready reference and convenience, Rule 27 of Order 41 of the
CPC is reproduced below :
27. Production of additional evidence in Appellate
Court.- (1) The parties to an appeal shall not be entitled
to produce additional evidence, whether oral or
documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred
has refused to admit evidence which ought to have been
admitted, or
[(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge
or could not, after the exercise of due diligence, be
produced by him at the time when the decree appealed
against was passed, or]
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause,
the Appellate Court may allow such evidence or
document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to beSignature Not Verified
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produced by an Appellate Court, the Court shall record
the reason for its admission.
(8) In this case, the provisions of Order 41 Rules 23,
23-A and 25 of CPC are also pertinent. Rules 23, 23-A
and 25 of Order 41 CPC are reproduced as under:
23. Remand of case by Appellate Court.- Where the
Court from whose decree an appeal is preferred has
disposed of the suit upon a preliminary point and the
decree is reversed in appeal, the Appellate Court may, if
it thinks fit, by order remand the case, and may further
direct what issue or issues shall be tried in the case so
remanded, and shall send a copy of its judgment and
order to the Court from whose decree the appeal is
preferred, which directions to re-admit the suit under its
original number in the register of civil suits, and
proceed to determine the suit; and the evidence (if any)
recorded during the original trial shall, subject all just
exceptions, be evidence during the trial after remand.
[23A. Remand in other cases. -Where the Court from
whose decree an appeal is preferred has disposed of the
case otherwise than on a preliminary point, and the
decree is reversed in appeal and a re-trial is considered
necessary, the Appellate Court shall have the same
powers as it has under rule 23.]
25. Where Appellate Court may frame issues and refer
them for trial to Court whose decree appealed
from.-Where the Court from whose decree the appeal is
preferred has omitted to frame or try any issue, or to
determine any question of fact, which appears to the
Appellate Court essential to the right decision of the
suit upon the merits, the Appellate Court may, if
necessary, frame issues, and refer the same for trial to
the Court from whose decree the appeal is preferred,
and in such case shall direct such Court to take the
additional evidence required; and
such Court shall proceed to try such issues, and shall
return the evidence to the Appellate Court together with
its findings thereon and the reasons therefor [within
such time as may be fixed by the Appellate Court or
extended by it from time to time].
(9) The Hon’ble Apex Court in case of Basayya I. Mathad Vs.
Rudrayya S. Mathad and Others, (2008) 3 SCC 120, has held that parties to
the lis are not entitled to produce additional evidence as a matter of course or
routine. For the said purpose, they must satisfy the conditions stated in Order
41 Rule 27 of CPC. Para 12 of the judgment is relevant which is as under :
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12. It is clear that parties to the lis are not entitled to produce
additional evidence as of course or routine but must satisfy
the conditions stated in sub-clauses (a) and (aa). Admittedly,
such recourse has not been resorted to either by the party
concerned or were those principles adhered to by the High
Court. Para 3 of his order shows that the learned Judge
verified the document produced on his direction without
complying with the mandate as provided under Rule 27 of
Order 41. Hence, we are of the view that the finding of the
learned Judge based on a document produced at the time of
argument dehors Rule 27 referred above cannot be sustained
in the eye of the law. In such circumstances, his ultimate
conclusion treating the suit property as a family property
partible among the members of the family is also liable to be
set aside. In fact, sub-clause (2) of Rule 27 mandates that
wherever additional evidence is allowed to be produced by
an appellate court, it shall record the reason for its admission.
It is needless to mention that the High Court neither followed
those conditions for production of additional evidence nor
recorded the reason for basing reliance on the same.
(10) In the case of Sunder Lal and Son vs. Bharat Handicrafts Private
Ltd., AIR 1968 SC 406 , it has been held by the Hon’ble Apex Court that if
document is in the possession of party and no explanation is given for not
producing it in the original Court, the plea that the party did not realize the
importance of document in trial Court would not bring case within the
expression “other substantial cause” in Order 41 Rule 27 CPC.
(11) In case of Pramod Kumar Jain & Ors. Vs. Smt. Kushum Lashkari
& Ors. I.L.R. [2020] M.P. 163, the Coordinate Bench of this Court has held
that provision of Order 41 Rule 27 CPC does not authorize any lacuna or
gaps in evidence to be filled up at the stage of appeal. It is the duty of the
litigant party to show due diligence.
(12) In case of Sudesh Kohli (Smt.) Vs. Smt. Chandarani Mishra &
Anr., I.L.R. [2019] M.P. 1441, the Coordinate Bench of this Court has held
that the trial Court, very elaborately/categorically appreciated each and every
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evidence, oral/documentary and left no issues unanswered or undecided.
Appellate Court has not given any specific reason as to why findings of trial
Court is not proper. Appellate Court, instead of remand, could have decided
the same on merits and thus has not exercised its discretion as conferred
under Order 41 Rule 23-A CPC. It has further held that power of remand
cannot be exercised to fill up lacuna of one or other party and can only be
exercised for curing a radical defect in trial or hearing in appeal resulting in
miscarriage of justice.
(13) In the case of Asharfi Devi (Smt.) vs. Hari Prasad & Ors., 2011
(4) I.L.R. Short Note 121, it has been held that where there is no evidence
that will is a forged document, then at the stage of appeal, prayer for getting
the signatures examined by handwriting expert cannot be allowed.
(14) In case of J. Balaji Singh v. Diwakar Cole, AIR 2017 SC 2402,
Hon’ble Apex Court in Para 16 & 17 has held as infra :
16. In our considered view, the only error which the first
appellate court committed was that it went on to record the
findings on merits. In our view, it was not necessary to do so
while passing the order of remand. The reason is that once
the first appellate court formed an opinion to remand the
case, it was required to give reasons in support of the remand
order as to why the remand is called for in the case. Indeed,
the remand was made only to enable the trial court to decide
the case on merits. Therefore, there was no need to discuss
much less record findings on several issues on merits. It was
totally uncalled for.
17. So far as the impugned order is concerned, the High
Court, in our view, committed jurisdictional error when it
also again examined the case on merits and set aside the
judgment of the first appellate court and restored the
judgment of the trial court. The High Court, in our opinion,
should not have done this for the simple reason that it was
only examining the legality of the remand order in an appeal
filed under Order 43 Rule 1(u) of the Code. Indeed, once the
High Court came to a conclusion that the remand order wasSignature Not Verified
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bad in law, then it could only remand the case to the first
appellate court with a direction to decide the first appeal on
merits.
(15) In case of Jagnnath & Anr. Vs. Karuna @ Chetna and other,
2018(3) M.P.L.J. 98, the Coordinate Bench of this Court has held that
Appellate Court is required to first address on justifiability of reversing
findings of trial Court. Before exercising jurisdiction under Order 41, Rules
23 and 23-A, Appellate Court should ascertain requirement for remand.
(16) In the case of Vipin Kumar and others vs. Sarojani, 2013 (1)
M.P.L.J. 480, the Coordinate Bench of this Court has elaborately discussed
the provisions of Order 41 Rules 23 to 27 CPC and has held in paragraph
No. 17 as under:
”17. It is made clear here that for future while directing
remand by the lower Appellate Court certain guidelines are
required to be observed while passing judgment and order
directing remand. It is directed that the lower Appellate
Courts in the State shall observe the contingencies in which
remand is permissible otherwise the appeals be decided on
merit. The contingencies wherein remand can be directed is
observed as thus:
(1) If the suit has been decided on a preliminary issue and the
decree is reversed by Appellate Court then while passing the
order of remand the Appellate Court may direct to try the
issue or issues after taking the evidence already on record or
after the remand, if any, on restoring the suit to its original
number.
(2) If an appeal is preferred against the judgment and decree
passed by the trial Court other than the preliminary issue and
Appellate Court reversed such finding in appeal and further
found that re- trial is necessary then by recording such
finding the power as specified in clause (1) may be exercised
by the Court directing wholesale remand.
(3) If the Appellate Court found from the decree against
which an appeal is preferred the trial Court has omitted to
frame or try any issue or to determine the question of fact
which appears essential to right decision of the suit on merit,
then the Appellate Court may frame issues and refer the same
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preferred directing to take additional evidence if required.
The Appellate Court shall further direct that after trying the
said issue the evidence be returned to it with a finding and
reasons therefor. In such contingencies the time to return
back the evidence and the finding ought to be fixed by the
Appellate Court. Thereafter the Appellate Court after inviting
objections may determine the appeal on merit.
(4) On production of the additional evidence and after taking
them on record, if the Appellate Court is satisfied to take
some witness to prove the document then the remand may be
directed for taking such evidence or witness on record
specifying the points for it. On taking additional evidence on
record by all the times the remand is not necessary if the
document is admissible in evidence and not objected by other
side, the Court may pass the order on merit deciding the
appeal.
(5) It is to be made clear here that if the evidence on record is
sufficient to enable the Court to pronounce the judgment
after re-settling the issue, the Appellate Court should not
remand in routine and the appeals must be decided on merit.
(6) If the Appellate Court is of the opinion to direct for
remand in any of the contingencies as specified hereinabove
under clause (1) to (4), it is the duty of the Court to fix the
date for appearance of the parties before the trial Court with a
view to curtail the delay on directing such remand and if the
remand in the above clause (3) findings be also called within
the time specified.
Order accordingly”
(17) As held in the case of J. Balaji Singh (supra), when additional
evidence is produced and taken on record, and the appellate court finds it
appropriate to remand the case due to the additional evidence having an
impact on the entire matter, it becomes incumbent upon the trial court to
decide the case afresh. In such circumstances, the First Appellate Court
should not go on to record the findings on merits. It is not necessary to do so
while passing the order of remand, because once the First Appellate Court
formed an opinion to remand the case, it is required to give reasons in
support of the remand order as to why the remand is called for in the case.
Indeed, the remand is made to enable the trial court to decide the case on
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merits. Therefore, there is no need to discuss much less record findings on
several issues on merits.
(18) Having considered the law laid down in the aforesaid cited cases
as well as provisions of Order 41 Rule 23, 23-A, 25 and 27 of CPC, it is
found that the impugned judgment and decree is not sustainable, as the
admission of the application under Order 41 Rule 27 of CPC has been
allowed dehors the provisions in this regard. Further, the written
statement/reply is not a public document as has been held by this Court
(Principal Seat) in the case of Smt. Khursheed Bano vs. Smt. Rukhsana Bano
and Others, decided on 22nd of November, 2023 in First Appeal No. 323 of
2016. It is also found from paragraph 27 of the impugned judgment and
decree that the First Appellate Court held that the trial Court has not properly
marshalised the evidence of both the parties. It is not a ground for remand. It
is the duty of the First Appellate Court to go through the evidence adduced
by both the parties on the basis of fact and law. Application under Order 41
Rule 27 of CPC, the plaintiff have not given any substantial reason as to why
they are unable to produce the document before the trial Court which was in
their possession. Considering para 20 of impugned judgment and decree
passed by the First Appellate Court, it is found that the the First Appellate
Court remanded the matter assuming that the document is material for the
just decision of the case and allowed the application. However, in the
considered opinion of this Court, there is no sufficient ground to allow the
application filed by plaintiffs under Order 41 Rule 27 of CPC. The First
appellate Court, dehors the said provisions, therefore, the admission of the
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application and remand of matter to the trial Court are not sustainable.
(19) In view of above, the impugned judgment and decree dated 24-
07-2019 passed by the First Appellate Court is set aside and the matter is
remanded back to the First Appellate Court for deciding the regular civil
appeal on its own merit. The regular civil appeal is restored for
reconsideration by the First Appellate Court in accordance with law. Parties
are directed directed to appear before the First Appellate Court on 04th
September, 2025.
(20) With the aforesaid, the instant misc. appeal stands disposed of.
(HIRDESH)
JUDGE
MKB
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