Full Judgment Text
REPORTABLE
2025 INSC 1027
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.10458 OF 2010
IQBAL AHMED (DEAD) BY LRS. & ANR. ... APPELLANTS
VERSUS
ABDUL SHUKOOR ... RESPONDENT
J U D G M E N T
ATUL S. CHANDURKAR, J.
1. The short issue involved in this Civil Appeal is whether it
is necessary for the Appellate Court to consider the
pleadings of the parties before adjudicating the prayer
made for leading additional evidence under the provisions
of Order XLI Rule 27(1) of the Code of Civil Procedure,
1908?
2. The appellants are the unsuccessful plaintiffs, who are
Signature Not Verified
aggrieved by the reversal of the decree for specific
Digitally signed by
Jayant Kumar Arora
Date: 2025.08.22
17:50:13 IST
Reason:
performance of agreement dated 20.02.1995, that was
Civil Appeal No.10458 of 2010 Page 1 of 14
granted by the Trial Court. The Appellate Court has
reversed the said decree after taking into consideration the
additional evidence led by the respondent - defendant.
2.1 It is the case of the appellants - plaintiffs that on
20.02.1995, the respondent - defendant entered into an
agreement to sell his house property for a consideration of
₹10,67,000. An amount of ₹2,50,000 was paid on the date
of the agreement, while further amount of ₹2,50,000 was
paid on 30.03.1995. The agreement was to be completed
within a period of one and a half years. As per the said
agreement, if the defendant was not in a position to deliver
vacant possession, the consideration payable was to be
₹8,67,000.
2.2 The plaintiffs on 18.04.1996 issued a notice to the
defendant calling upon him to execute the sale deed.
There was no response to this notice. Thereafter on
11.07.1996, a telegraphic notice was issued by the
plaintiffs. The plaintiffs thereafter on 19.07.1996 filed the
suit for specific performance of the agreement dated
20.02.1995.
2.3 In the plaint, it was pleaded by the plaintiffs that they had
disposed of other immovable properties for purchasing the
Civil Appeal No.10458 of 2010 Page 2 of 14
suit property, which they intended to use for their
occupation. It was further pleaded that the plaintiffs were
always ready and willing to perform their part of the
agreement and that the balance consideration was
available with them.
2.4 In the written statement filed by the defendant, the case
set up by the plaintiffs was denied. According to the
defendant, he had borrowed an amount of ₹1,00,000 for
expansion of his business from the plaintiff No.1 and that
on 18.02.1995, his signatures were obtained on blank
stamp papers. While he admitted his signatures at two
places on the stamp papers, he denied the other
signatures. As regards the plaintiffs’ case that they had
sold their immovable properties for purchasing the suit
property, the defendant stated that it was not within his
knowledge that the plaintiffs had done so.
2.5 The plaintiff No.1 examined himself and two other
witnesses. The defendant examined himself before the
Trial Court. On consideration of the aforesaid evidence,
the Trial Court held that the plaintiffs had proved that an
agreement to sell dated 20.02.1995 was entered into by
the defendant. It was further held that the plaintiffs had
Civil Appeal No.10458 of 2010 Page 3 of 14
proved their readiness and willingness. The Trial Court
exercised discretion in favour of the plaintiffs and after
disbelieving the evidence led by the defendant, decreed
the suit for specific performance on 19.02.2000.
2.6 The defendant being aggrieved by the aforesaid decree
challenged the same by filing an appeal under Section 96
of the Code of Civil Procedure, 1908 (for short “the Code”),
During pendency of the appeal, an application under
provisions of Order XLI Rule 27(1) of the Code was filed
by the defendant. He sought to produce additional
documentary evidence in support of the appeal. The
documents intended to be produced were:-
“1. Certified copy of extract of the house tax
demand register pertaining to House Property
bearing No.13, Old. No. 29/30, E No. 6th Street,
HKB Road, Bangalore 550 001.
2. Certified copy of the Encumbrance
Certificate pertaining to House Property
bearing No.13, Old No.29/30, E No. 5th Street,
HKB Road, Bangalore 550 001.
3. Certified copy of the sale deed dated 22nd
day of October 1948. E No. 5th Street, HKB
Road, Bangalore 550 001.
Civil Appeal No.10458 of 2010 Page 4 of 14
4. Certified copy of the City Survey
Endorsement.”
2.7 The application was opposed by the plaintiffs. The Division
Bench of the High Court while considering the appeal
proceeded to hold that in view of the pleadings in
paragraph 9 of the plaint, wherein the plaintiffs had stated
that they had sold the immovable properties for purchasing
the suit property and that the defendant had subsequently
got information that no such sale had taken place, it was
necessary to permit additional evidence to be led. After
considering the same, the High Court was of the view that
the agreement dated 20.02.1995 was not proved and that
the case set up by the plaintiffs was not true. On that basis,
the High Court reversed the decree for specific
performance and directed the defendant to return the
amount of ₹1,00,000 borrowed by him from the plaintiff
No.1.
3. Mr. Raghavendra Srivatsa, learned Senior Advocate for
the appellants - plaintiffs submitted that the High Court was
not justified in reversing the decree passed by the Trial
Court. The plaintiffs had pleaded and proved their
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readiness and willingness to perform their part of the
contract in accordance with the agreement dated
20.02.1995. The Trial Court after examining entire
evidence on record, rightly held that the agreement dated
20.02.1995 had been duly proved and that the High Court
erred in reversing this finding. The defendant having
admitted his signatures on the said agreement, it was not
permissible for the High Court to have compared the
signatures and thereafter take a different view from the
one taken by the Trial Court. The additional evidence
sought to be led by the defendant was accepted without
granting any opportunity to the plaintiffs to counter the
same. It was further submitted that there was considerable
delay on the part of the High Court in delivering the
impugned judgment, after the parties were heard and the
judgment was reserved. Reliance in this regard was
placed on the decisions in Anil Rai Vs. State of Bihar,
(2001) 7 SCC 318 and Ratilal Jhaverbhai Parmar and
Others Vs. State of Gujarat and Others, 2024 INSC 801.
It was thus submitted that the Appellate Court had erred in
reversing the well-reasoned judgment of the Trial Court.
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4. Per contra, Ms. Mahalakshmi Pavani, learned Senior
Advocate for the respondent – defendant supported the
impugned judgment. According to her, the High Court was
justified in reversing the finding that the agreement dated
20.02.1995 had been proved. It was clear from the
deposition of the defendant, who had accepted his
signatures at three places but had denied the other
signatures on the document dated 20.02.1995. The High
Court was justified in undertaking the exercise of
comparing the signatures in exercise of the power
conferred by Section 73 of the Indian Evidence Act, 1872
(for short “the Act of 1872”). Since it came to the
knowledge of the defendant that the plaintiffs had not sold
any immovable property as pleaded by them, the
application seeking permission to lead additional evidence
under provisions of Order XLI Rule 27 of the Code had
been moved by the defendant. The same was rightly
allowed by the High Court and after considering the public
documents obtained from the State authorities, the same
were taken into consideration. Since the High Court had
considered the entire evidence in the proper perspective,
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there was no reason to interfere with the impugned
judgment. It was, thus, urged that the appeal was liable to
be dismissed.
5. Having heard the learned Senior Advocates for the parties
and having perused the documentary evidence on record,
it would be first necessary to consider whether the High
Court was justified in permitting the defendant to lead
additional evidence in the appeal as this is the principal
reason that the decree passed by the Trial Court has been
reversed by the High Court in view of the additional
evidence brought on record by the defendant.
5.1 In paragraph 9 of the plaint, it was specifically pleaded by
the plaintiffs that they had disposed of their valuable
immovable properties in order to purchase the suit
property, which they required for their bona fide use and
occupation. In the written statement, the defendant in
paragraph 11 stated that as regards the averments
contained in paragraph 9 of the plaint, it was not within the
knowledge of the defendant that the plaintiffs had sold their
valuable immovable properties so as to invest the return of
the same in purchasing the suit property.
Civil Appeal No.10458 of 2010 Page 8 of 14
5.2 The plaintiff No.1 in his deposition stated that since he
wanted to purchase the suit property for his residence and
he did not own any property in Bengaluru, he had sold a
house one month prior to the date of the agreement of sale
so as to make the payment to the defendant. In his cross-
examination, he stated that about two months prior to
20.02.1995, he was authorised by the plaintiff No.2 to sell
his property located at Benson Town. Some portion of that
property was accordingly sold to Mr. R. Maqbool for ₹7
lakhs while the remaining portion was sold to Mr. Gulzar
Ahamed for ₹2.5 lakhs. He further stated about the manner
in which the proceeds from the sale were invested.
5.3 The Trial Court on the basis of the evidence of the plaintiff
No.1 and other witnesses, as well as the evidence of the
defendant, accepted the case of the plaintiffs and granted
a decree for specific performance.
5.4 In the grounds raised by the defendant in the appeal filed
before the High Court, a challenge was raised to the
document dated 20.02.1995, by stating that it was not an
agreement of sale, but that the said document had been
executed by way of security since the defendant had
obtained a loan of ₹1,00,000 from the plaintiff No.1.
Civil Appeal No.10458 of 2010 Page 9 of 14
5.5 As stated above, during pendency of the appeal before the
High Court, the defendant filed the application under the
provisions of Order XLI Rule 27(1) of the Code. The High
Court was of the view that in the light of the pleadings in
paragraph 9 of the plaint as well as the evidence of the
plaintiff No.1, the documents in the form of extracts of the
house tax demand register, encumbrance certificate,
certified copy of the sale deed and certified copy of the City
Survey Endorsement were material documents that were
required to be taken into consideration as additional
evidence. It was further stated that being public
documents, the same ought to be accepted under Section
74 of the Act of 1872, being maintained by the authorities
in discharge of their duties in normal course. For these
reasons, the High Court was of the view that it was not
necessary to remand the proceedings to the Trial Court for
recording additional evidence and that the said documents
could be considered by it. The decree for specific
performance was accordingly reversed and instead the
defendant was directed to return an amount of ₹1,00,000
to the plaintiff No.1.
Civil Appeal No.10458 of 2010 Page 10 of 14
6. Considering the averments in paragraph 9 of the plaint and
the response of the defendant to the said averments in
paragraph 11 of the written statement, it is clear that while
the plaintiffs asserted that they had sold the immovable
properties located at Benson Town for arranging the funds
to undertake the transaction, the defendant stated that he
was unaware of this factual aspect.
7. In the application preferred under Order XLI Rule 27(1) of
the Code, the defendant stated that he got the information
that there was no such sale by the plaintiffs in the last week
of June, 2000. After making inquiries in the office of the
Sub-Registrar, he got such information and obtained
certified copies of extracts of said documents. It can be
seen that the High Court has proceeded to consider the
application under provisions of Order XLI Rule 27(1) of the
Code without examining as to whether the additional
evidence sought to be led was supported by the pleadings
of the defendant in the written statement.
8. In our opinion, before undertaking the exercise of
considering whether a party is entitled to lead additional
evidence under Order XLI Rule 27(1) of the Code, it would
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be first necessary to examine the pleadings of such party
to gather if the case sought to be set up is pleaded so as
to support the additional evidence that is proposed to be
brought on record. In absence of necessary pleadings in
that regard, permitting a party to lead additional evidence
would result in an unnecessary exercise and such
evidence, if led, would be of no consequence as it may not
be permissible to take such evidence into consideration.
Useful reference in this regard can be made to the
decisions in Bachhaj Nahar Vs. Nilima Mandal and Anr.,
AIR 2009 SC 1103 and Union of India Vs. Ibrahim Uddin
and Anr., (2012) 8 SCC 148. Thus, besides the
requirements prescribed by Order XLI Rule 27(1) of the
Code being fulfilled, it would also be necessary for the
Appellate Court to consider the pleadings of the party
seeking to lead such additional evidence. It is only
thereafter on being satisfied that a case as contemplated
by the provisions of Order XLI Rule 27(1) of the Code has
been made out that such permission can be granted. In
absence of such exercise being undertaken by the High
Court in the present case, we are of the view that it
Civil Appeal No.10458 of 2010 Page 12 of 14
committed an error in allowing the application moved by
the defendant for leading additional evidence.
9. As we have found that the application for leading
additional evidence has been considered by the Appellate
Court without examining the aspect as to whether the
additional evidence proposed to be led was in consonance
with the pleadings of the defendant and whether such case
had been set up by him coupled with the fact that the
additional evidence taken on record has weighed with it
while reversing the decree, the matter requires re-
consideration by the High Court. Since we find that the
matter requires re-consideration at the hands of the High
Court afresh, we have not gone into the aspect of delay in
deciding the appeal by the High Court as was urged on
behalf of the appellants.
10. For the aforesaid reasons, we find the judgment under
challenge to be unsustainable in law. The appeal requires
to be re-considered along with the application filed by the
defendant under provisions of Order XLI Rule 27(1) of the
Code afresh. Accordingly, the judgment and order dated
30.12.2008 passed in RFA No.440 of 2000 is set aside.
Civil Appeal No.10458 of 2010 Page 13 of 14
The proceedings are remanded to the High Court to re-
consider the same afresh in accordance with law. Since
the suit was filed in 1997, we request the High Court to
expedite the consideration of RFA No.440 of 2000. It is
clarified that we have not expressed any opinion on the
merits of the matter.
11. The Civil Appeal is allowed in the aforesaid terms, leaving
the parties to bear their own costs.
12. Pending application(s), if any, also stand disposed of.
……..…...…………………………………J
[PAMIDIGHANTAM SRI NARASIMHA]
……..…...…………………………………J
[ATUL S. CHANDURKAR]
NEW DELHI;
AUGUST 22, 2025.
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