RANCHI, India, Dec. 25 -- Jharkhand High Court issued the following order on Nov. 25:

1. This second appeal has been filed against the Judgment dated 05.03.2019 (Decree sealed and signed on 15.03.2019) passed by the learned District Judge-I, Deoghar in Title Appeal No.26 of 2007 setting aside the Judgment of the Trial Court dated 25.01.2006 (Decree sealed and signed on 14.02.2006) passed by the learned SubJudge-III, Deoghar in Title Suit No.101 of 1996. The suit was decreed and the defendant was directed to execute the sale deed of the suit property after receiving the balance consideration amount within one month from the date of order failing which the same would be executed through the process of court.

2. The suit was decreed and the 1st appeal was allowed and consequently, the plaintiff is the appellant and the respondents are the legal heirs of the original defendant of the suit.

3. This second appeal was admitted for final hearing vide order dated 16.09.2019 on following substantial questions of law: -

(i) Whether in a suit of specific performance there cannot be a judgment of reversal of the decree of trial court stands satisfied by execution through the process of court even prior to institution of appeal and there does not exist any decree in the eyes of law to be set aside/reversed the order of the trial court reversed by the appellate court?

(ii) Whether the 1st Appellate court has committed an error of law by reversing the judgment & decree of the Trial Court on the basis of additional evidence led by appellant/defendant without granting opportunity of rebuttal to the respondent/plaintiff?

(iii) Whether the 1st appellate court has committed serious jurisdictional error in not resorting to the provisions of Order 41 Rule 23A or Order 41 Rule 25 CPC after passing a judgment of reversal on the basis of additional evidence under Order 41 Rule 27?

Arguments on behalf of the appellant

4. The suit was for Specific Performance of Contract and the judgment was passed in favour of the plaintiff on 25.01.2006. The decree was drawn on 14.02.2006 and the decree stood satisfied on 07.09.2006 as the court concerned had directed to execute the sale deed in favour of the plaintiff. The plaintiff had certainly deposited the balance consideration amount for the purposes of execution of the sale deed.

5. The learned counsel for the appellant submitted that much after satisfaction of the decree, the appeal was filed before the First Appellate Court on 15.09.2007 and delay in filing the appeal was also condoned. However, at the 1 st appellate stage, certain documents were exhibited as additional evidence, particularly the document regarding revocation of the judgment passed in Probate Case No.141 of 1993 and the probate was revoked and it was converted into a Title Suit and Title Suit was numbered as Title Suit No.2 of 2000 which as per the impugned judgment is still pending. The learned counsel submitted that the probate granted in Probate Case No.141 of 1993 was revoked vide order dated 10.08.1999 and the order of revocation was brought on record at the 1 st appellate stage, but no opportunity was granted to the appellant to rebut the said additional evidence. The learned counsel further submitted that the appellate court has set aside the decree by referring to the fact that the probate granted in Probate Case No.141 of 1993 was revoked vide order dated 10.08.1999. The learned counsel submitted that in absence of grant of any opportunity of rebuttal by the plaintiff, who was the respondent in the first appellate court, the 2nd substantial question of law is fit to be answered in favour of the appellant.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=%2FE3WiyNUWFIaR1oBGE62Wkb6mwhHJbQwzFoisux5EKPzENhsf4APNwgi3m2uZW%2B0&caseno=SA/127/2019&cCode=1&cino=JHHC010144582019&state_code=7&appFlag=)

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