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1994 DIGILAW 153 (CAL)

Bangshidbar Pal v. Anil Kumar Pal

1994-04-27

ASHOK KUMAR CHAKRABORTY, SAMIR KUMAR MOOKHERJEE

body1994
Judgment : This application under Section 115 of the Code of Civil Procedure is directed against Order No. 24 dated 4.4.91 passed by Addl. Judge 4th Court, Burdwan in Title Appeal No. 126/22 of 1989 by which he rejected the application of the plaintiff-petitioner under Order 14 Rule 27 C.P.C. 2. Facts of the case are as follows:- Petitioner as plaintiff filed Title Suit No. 21 of 1985/24 of 1979 for recovery of khas possession and means profits from the defendant-opposite party on the revocation of the licence in respect of the suit property granted in his favour. Opposite party-defendant No.1 claimed the property as the heir of his mother Paritosh Bala Dasi under whom the plaintiff also claimed his right, title and interest therein alongwith other grounds. The suit was dismissed on contest on 14.8.89 and an appeal was preferred being Title Appeal No. 126/22 of 1989 before the Learned District Judge, Burdwan which was transferred to the Learned Addl. District Judge and the matter is still pending decision. During the pendency of this appeal this application under Order 41 Rule 27 of the Code of Civil Procedure praying for producing the birth certificate of the defendant as an additional evidence in appeal was filed. It was alleged that one of the material issues involved in the suit was whether defendant No.1 is the son of the second wife of Ratan Chandra Pal and in that context the date of the birth of defendant No.1 was very much. material for adjudication of the issue. It was further alleged that the birth certificate could not be traced out before inspite of the petitioner's due diligence and honest efforts. It was further stated that the opposite party has succeeded in collecting the said birth certificate on 8.9.90 from Burdwan Municipality. 3. By the impugned order Learned Court of Appeal below dismissed the said application on the ground that there was lack of diligence on the part of the opposite party to procure the document and that Order 41 Rule 27 of the Code of Civil Procedure shall not come to the aid of the petitioner as there are enough materials on record to pronounce judgment on the above mentioned issue. 4. Mr. Shyama Prasanna Roy Chowdhury, learned Advocate appearing for the petitioner challenged the above finding of the Ld. 4. Mr. Shyama Prasanna Roy Chowdhury, learned Advocate appearing for the petitioner challenged the above finding of the Ld. Court of Appeal below on the ground that the aforesaid order was passed without proper appreciation of the provisions of Order 41 Rule 27 of the Code of Civil Procedure He, however, did not seriously challenge the finding of the Ld. Court of appeal below from the view point of sub-Clauses (a) and (aa) of Sub-rule 1 of Rule 27 of the Cede of Civil Procedure. He, however, contended seriously that the provisions of Sub-Clause (b) of Clause 1 of Rule 27 for the purpose of production of additional evidence. For this purpose he referred to the decisions reported in (1) AIR 1963 SC 1526 , (2) AIR 1965 SC 1008 and (3) 80 CWN 788. It was contended with reference to these decisions that there being some inherent lacuna or defect in the judgment under appeal that the Court ought to have granted leave to produce the evidence for satisfactory and final disposal of the suit. He further submitted that production of the document and the evidenciary value thereof are two entirely different things and the latter will be considered after the evidence is admitted in the point. According to him the Court ought not to have shut the evidence, which being a birth certificate, is very much essential for deciding the question in issue, namely whether defendant No.1 was a son of Paritosh Bala Dasi. He also submitted that under the provisions of Order 41 Rule 27 the Court was not entitled to look into the nature of document as it is not entitled to prescribe oral evidence to be adduced in passing an order under the provision. 5. Mr. Sudhish Dasgupta, learned advocate appearing for the opposite party submitted that the Court shall have look into the document itself for determining the nature of the evidence to be adduced before passing an order under Order 41 Rule 27 (1) (b) of the Code of Civil Procedure. He further submitted that under the said provision it is only for clearing any obscurity in the evidence and for filling up of the gap or void in the judgment itself which makes it difficult, if not impossible, to pronounce a judgment effectively that the Court can allow such evidence to be taken. He further submitted that under the said provision it is only for clearing any obscurity in the evidence and for filling up of the gap or void in the judgment itself which makes it difficult, if not impossible, to pronounce a judgment effectively that the Court can allow such evidence to be taken. He also referred to the provisions of Order 41 Rule 27(1) where it is stated "the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the Appellate Court". And only in certain case as provided in that rule that production of additional evidence in the Appellate Court may be permitted. He also pointed out with reference to the birth certificate that certificate having been issued under the provisions of Sections 12 and 17 of the Registrations of Births and Deaths Act, 1969, it stands self-condemned since the certificate under this act is in relation to the date of birth occurring long before the act came into force ill 1969. In other words, the certificate being in relation to a birth taking place in 1940 no certificate under the provisions of the act of 1959 could have been issued and accordingly stand self-condemned Regarding the birth of child he referred to Section 14 where it was made incumbent that where the birth of any child has been registered without name the parent or guardian of such child shall within the prescribed period give information regarding the name of the child to the Registrar either orally or in writing. Here in this case nothing like that was done. He also pointed that while procuring the certificate of Paritosh Bala Dasi on 14.4.83 the petitioner knew that the birth certificate of the defendant No.1 was also necessary and non-production thereof shows the lack of diligence in the matter. He also referred to the decision reported in (4) AIR 1957 Nagpur 15 where it was held that Order 41 Rule 27 can be taken when the evidence sought to be introduced is conclusive and clinching in nature and that provisions should not be availed by any party to remove lacuna in presenting his case at the proper stage and filling gaps. He also referred to the rulings reported in (5) AIR 1957 SC 912 and (6) AIR 1976 SC 1053 where it was stated that the additional evidence should not be allowed to fill up lacuna in evidence and the true test is whether the Court could pronounce judgment on the available materials on record. 6. Heard the submissions of the learned advocate on both sides. Under Clause 1 of Rule 27 of Order 41 of the Code of Civil Procedure it is clear from the rule itself that in ordinary circumstances parties to an appeal shall not be entitled to produce additional evidence, either oral or documentary, in the Appellate Court. It is only in those circumstances as provided in Sub-clauses (a), (aa) and (b) of Clause 1 of Rule 27 that the Appellate Court may allow such additional evidence or document to be produced or witness to be examined Sub-rule 2 of Rule 27 further provides that wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reasons for its submission. In the instant case, obviously there cannot be any application of Sub-rule (a) as the document was not produced before the Learned Trial Court and so there is no question of refusal to admit the same. The provisions of Sub-clause (aa) also has no application to the facts of the case as lack of diligence on the part of the petitioner is written large on the face on the record. The birth certificate being a public document that could have been procured immediately before or after the filling of the suit in 1982. It was not that the petitioner did not know that he would not be required to produce the birth certificate of the defendant because one of the vital issues in the suit was whether defendant is also son of Paritosh Bala Dasi. The absence of diligence becomes at once apparent when the petitioner produced the death certificate of Paritosh Bala Dasi in 1983. As stated earlier, Mr. Roy Chowdhury did not seriously contended that the document ought to have been taken under the provisions of Sub-Clauses (a) and (aa). The main thrust of his argument was that the document, namely, the birth certificate of the defendant ought to have been admitted under sub-clause (b) of Clause 1 of Rule 27. As stated earlier, Mr. Roy Chowdhury did not seriously contended that the document ought to have been taken under the provisions of Sub-Clauses (a) and (aa). The main thrust of his argument was that the document, namely, the birth certificate of the defendant ought to have been admitted under sub-clause (b) of Clause 1 of Rule 27. Sub-clause (b) of Rule 27 runs as follows :- "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." It is clear on plain reading of sub-clause (b) of Rule 27 that the requirement must be of the Appellate Court itself and not of the parties for enabling it to pronounce judgment or for any other substantial cause According to Mr. Roy Chowdhury the Court could not pronounce judgment satisfactorily or could do justice to the parties without allowing the said document to be produced as additional evidence. According to Mr. Sudhish Dasgupta the Appellate Court did not require the said document to be produced as there is sufficient materials on record to decide the issue. 7. It is well-settled that the requirement must be of the Court and not of any party to the suit. When the Court is of opinion that without fresh evidence it cannot pronounce judgment then only it is to be allowed and the rule is clearly not intended to allow a litigant who had been unsuccessful in the lower Court to patch up the weak points of his case and to fill up the omission in appeal. In the decisions of Venkataramiah v. Seetharama reported in AIR 1963 SC 1526 it was held that the additional evidence may be allowed not only to enable the Court to pronounce judgment but for "any other substantial cause". Which may include such situation when the Court considers that in interest of justice as something remaining obscure shou1d be filled up, so that it can pronounce judgment in a more satisfactory manner though it may be able to pronounce judgment on the state of the record, as it is. Such requirement of the Court to enable to pronounce judgment or for any substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of evidence. Mr. Such requirement of the Court to enable to pronounce judgment or for any substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of evidence. Mr. Roy Chowdhury referred to the decision reported in AIR 1963 SC 1526 in support of his contention. In this case certain documents were admitted by the High Court as additional evidence without objection and so the Supreme Court accepted the same but not without reservation as it appears from paragraph 16 of the decision. Mr. Roy Chowdhury also referred to the decision reported in AIR 1965 SC 1008 where it has been held that it is to be allowed only for removing inherent lacuna in the evidence. It was held in the same decision that the Court is not to allow a fresh trial by allowing additional evidence. Mr. Dasgupta also referred to the decision reported in AIR 1957 SC 912 where it was held that no party should be given a fresh opportunity to adduce further evidence when it had opportunity to do so at the proper stage. He also drew our attention to the decision reported in AIR 1976 SC 1053 where it was held that the true test is whether the Appellate Court can pronounce judgment on the materials before it, without taking into consideration the evidence sought to be adduced. 8. It thus appears from the decisions referred to above that in order to attract the provisions of sub-Clause (b) of Clause 1 of Rule 27 requirement must be of the Court and not of the parties and that the evidence sought to be adduced is necessary to pronounce judgment or that such evidence may be allowed to be produced in the interest of justice when Court considers that something remaining obscure should be cleared or that some inherent lacuna or defect becomes apparent, on an examination of evidence. There may be discrepancies in the evidence of witness as or between oral and documentary evidence or between documentary evidence but such discrepancies, by themselves, shall be no ground for introducing additional evidence at the appellate stage unless the discrepancies are of such nature that any inherent lacuna in the evidence is created or that no conclusion from the same is possible to arrive at rendering the evidence obscure thereby Any party to the suit evidently lacking diligence to produce document the time of trial cannot be allowed to circumvent the bar of Sub-Clause (aa) of Clause 1 of Rule 27 by taking the plea at the appellate stage that the Court required such evidence for pronouncing judgment or for any other substantial cause like for ends of justice where in fact there are sufficient materials on record to decide the point. It such pleas are allowed then there will be no finality in litigation and de novo trial have to be commenced. Instead of furthering the cause of justice that will impede the same by protracting the litigation and by submitting the other party to harassment which is last thing that the Court should do. In this matter the position of law has been laid down in the case reported in the decisions of (7) Arjan Singh v. Kartar Singh reported in AIR (38) 1951 SC 193 where It is stated '"the discretion to receive an admit additional evidence is not an arbitrary one, but it is a judicial one circumscribed by the limitations specified under Order 41 Rule 27 Code of Civil Procedure. If the additional evidence was allowed to be adduced contrary to the principles governing the' reception of such evidence, it would be a case to improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case should be decided as if it was not non-existent". 9. Two points, however, emerges for consideration in the matter. The first is whether the learned Court of appeal below considered the question of allowing additional evidence from both the view points of requirement for the purpose of pronouncing judgment and also for any other substantial cause as provided under Sub-clause (b) of Clause (1) of Rule 27 Code of Civil Procedure. The first is whether the learned Court of appeal below considered the question of allowing additional evidence from both the view points of requirement for the purpose of pronouncing judgment and also for any other substantial cause as provided under Sub-clause (b) of Clause (1) of Rule 27 Code of Civil Procedure. The Learned Court of Appeal having only considered the matter from the view point of requirement for the purpose of pronouncing judgment on the available materials on record and not from the other view points. That point also ought to have been considered in the disposal of this application. The requirement under this provision being of the Court itself it was immaterial whether any party applied for such evidence or not. The second point which follows as a logical corrolary of the first point is whether an application under Order 41 Rule 27 Code of Civil Procedure should be disposed of in isolation without appreciation of the evidence on record at the time of having of the appeal itself. 10. In this connection reference may be made to the decision in (8) Parsotim Thakur v. Lalmohar Thakur reported in AIR (38) 1931 Privy Council 143 where it was held that it is immaterial whether the defect in the evidence was pointed out by the party or that a party moved the Court to supply the defect but additional evidence can only be admitted on the requirements of the Court upon the appreciation of the evidence as it stands. In our opinion such appreciations of evidence is not possible without hearing the appeal on merits. It is not permissible for any Learned Appellate Court under the law to form an opinion regarding any issue in an application under Order 41 Rule 27 of the Code of Civil Procedure as that will amount to pre-judging the issue without hearing the appeal on merit. That such applications cannot be disposed of in isolation without hearing the appeal is further clarified by the provisions of Order 41 Rule 29 where the Appellate Court is required to define or record the points to which the additional evidence is to be confined, if allowed to be taken, cannot be done without hearing the appeal itself. 11. That such applications cannot be disposed of in isolation without hearing the appeal is further clarified by the provisions of Order 41 Rule 29 where the Appellate Court is required to define or record the points to which the additional evidence is to be confined, if allowed to be taken, cannot be done without hearing the appeal itself. 11. In the aforesaid circumstances the impugned order is liable to be set aside in part and the Learned Court of appeal below is directed to dispose of the application at the time of the hearing of the appeal in terms of our order mentioned above and according to law. The revisional application is disposed of accordingly. There will be no order as to costs. Mookherjee, J. : I had the advantage of going through the judgment of my learned brother Chakraborty, J., I respectfully agree with his conclusions but would like to express my own reasons. 14. In a suit inter alia for declaration a question arose as to whether the defendant was full brother of the plaintiff. On the basis of documents and oral evidence, including the death certificate of the plaintiff's mother and school certificate of the defendant embodying entry about his year of birth, the Trial Court came to the conclusion that the defendant was the full brother of the plaintiff. Admittedly the father of the defendant had a second marriage and the allegation of the plaintiff was that the defendant was the son by the second wife. Against the decree of dismissal an appeal was preferred before the Lower Appellate Court and in connection with the said appeal an application under Order 41, Rule 27 of the Code of Civil Procedure was filed by the plaintiff for introduction of the birth certificate of the defendant as additional evidence to show that the first wife of the father of the plaintiff and the defendant died prior to the birth of the defendant. The reasons for failure to produce such evidence before the Trial Court was pleaded to be non-availability of the said document in spite of diligence by the plaintiff. The other ground was that such document was needed for cause of justice and for enabling the Court to pronounce judgment. By the impugned Order the Lower Appellate Court having rejected the application, the present revisional application had been preferred. 15. The other ground was that such document was needed for cause of justice and for enabling the Court to pronounce judgment. By the impugned Order the Lower Appellate Court having rejected the application, the present revisional application had been preferred. 15. From the analysis of the provisions of Order 41, Rule 27 of the Code of Civil Procedure, the following principles emerge :- (i) Production of additional evidence at the appellate stage is generally prohibited. (ii) The provisions apply to both oral and documentary evidence. (iii) Clauses (a) and (aa) may be invoked by a party to the appeal. Clause (b) can be invoked by the Appellate Court alone and not by the parties. (iv) Liberty given by or permission granted by it enables a party to produce oral or documentary evidence but does not dispense with the requirement to prove the same in conformity with the Evidence Act. In other words, till the document or oral evidence is proved or established according to law, the Court cannot consider the same for the purpose of adjudication. 16. In the instant case, one of the two grounds urged on behalf of the applicant/plaintiff falls within Clause (aa). So far at the findings of the Court are concerned, relating to the said ground, the findings may be said to be of factual nature without perversity and as such there is no scope for interference in the present revisional application. So far as the other ground is concerned the same has been argued to be one drawing sustenance from Clause (b). A careful reading of the said Clause (b) indicates that the requirement must be of the Court and Court must hold that such requirement exists if either of the two purposes mentioned in the said Clause constitutes the same. 17. The language of the said Clause (b) leaves no room for doubt that any finding by the Court about its requirement can be arrived at only at the stage of pronouncement of the judgment after the hearing is concluded. Mere opportunity of the Court to look at the evidence on record without a judicial consideration by application of its mind in the context of the arguments made on behalf of the contesting parties cannot enable the Court to form any view about it, requirement. Mere opportunity of the Court to look at the evidence on record without a judicial consideration by application of its mind in the context of the arguments made on behalf of the contesting parties cannot enable the Court to form any view about it, requirement. The decisions of the Supreme Court in the cases of K. Venkataramiah v. A. Seetharama Reddy and Others, AIR 1963 SC 1526 , The Municipal Corporation of Greater Bombay v. Lala Pancham and Others, AIR 1965 SC 1008 , Arjan Singh v. Kartar Singh & Others, AIR 1951 SC 193 Natha Singh and Others v. The Financial Commissioner Taxation, Punjab and Others, AIR 1976 SC 1053 . The default on the part of a party cannot affect the power of the Court to allow additional evidence when the Court requires the same It is noticeable that the Clause "for any other substantial cause" is in the nature of a residuary Clause empowering the Court to allow additional evidence if interest of justice so requires though the requirement may not be for enabling the Court to pronounce judgment. It is clear from the aforesaid Supreme Court decisions that whenever there is obscurity in the evidence or any lacuna preventing the Court from coming to a comprehensive conclusion the Court is entitled to invoke its discretion under Clause (b). It is apparent that such infirmity or lacuna cannot be deciphered unless the evidence on record, whether oral documentary, has been considered by the Court judicially and weighed. That is why Court cannot be in a position to form a view under Clause (b) before the hearing of the appeal is concluded and the stage of considering the respective contentions with the records is reached. 18. In the instant case, the refusal of the Court even to exercise its powers under Clause (b) of the relevant Order having been made before conclusion of the trial, appears to be confined only to the first limb of Clause (b). So far as the residuary limb is concerned the Court did not advert to the same at all, with the result that there has been no consideration as to whether the document proposed to be introduced as additional evidence will be necessary for a just decision of the case. So far as the residuary limb is concerned the Court did not advert to the same at all, with the result that there has been no consideration as to whether the document proposed to be introduced as additional evidence will be necessary for a just decision of the case. The Order is, therefore, sustained no doubt but the Court is directed to consider the relevance and necessity of the birth certificate of defendant No.2 in course of process of reaching the conclusions on the issue and pass appropriate Orders accordingly. 19. The hearing of the appeal be expedited. 20. The Revisional application is thus allowed in part in the manner indicated above. There will be no order as to costs. Let xerox copies of the orders, passed today by me as also by my learned brother A. K. Chakraborty, J. separately, be handed over to both the learned Advocates for the contesting parties on the usual terms on their undertaking to apply for and obtain urgent certified copies.