Summary
The Supreme Court set aside a first-appellate judgment that admitted additional evidence and simultaneously relied on it to dismiss a partition suit without giving the opposing party an opportunity to rebut or explain alleged admissions. Neither the failure to file a counter-affidavit to the pending applications nor absence at the hearing justified denying that opportunity. The appeal was remitted for fresh decision without any opinion on the partition merits.
Issues
- Whether admission of additional evidence in first appeal required an opportunity to rebut it or explain alleged admissions.
- Whether absence of a counter-affidavit or representation at the hearing dispensed with that opportunity.
- What relief should follow the procedural error.
Provisions considered
- Order XLI Rule 2, Code of Civil Procedure, 1908Its proviso embodied natural justice by requiring an opportunity to contest a new ground; the same fairness supported an opportunity after admission of additional evidence. (¶¶ 12, 13)
Held
- Although Order XLI Rule 27 does not expressly specify the subsequent opportunity, natural justice and fair play require a party affected by admitted additional evidence to have an opportunity to rebut the inference or explain alleged admissions. The Court applied the reasoning of the proviso to Order XLI Rule 2 and the cited precedents. (¶¶ 11, 12, 13, 14, 15)
- The High Court admitted three applications and decided the appeal on the same day by relying on alleged admissions in documents created after the trial decree. Failure to file counter-affidavits while the applications remained undecided was not decisive, and absence at the hearing did not justify denying the opportunity. (¶¶ 8, 9, 10, 13)
- Even undisputed execution of the sale deeds did not eliminate the need to permit explanation of statements relied on as admissions or rebuttal evidence. The procedural error required a fresh appellate decision, without the Supreme Court expressing any view on the merits. (¶ 16)
- Because the first appeal had been pending since 1976, the High Court was expected to complete the fresh process expeditiously, preferably within six months of production of the judgment. (¶ 16)
Result
Appeal allowed; High Court judgment and decree set aside. First appeal remitted for fresh decision after an opportunity to lead rebuttal evidence, preferably within six months of production of the judgment; parties to bear their own costs.