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Gauhati High Court · body

1995 DIGILAW 115 (GAU)

Apollo Machinery Mart v. R. Begum

1995-06-13

A.K.PATNAIK

body1995
Heard Mr. A.S. Choudhury, learned counsel for the petitioner and Mr. A.M. Mazumdar, learned counsel for the respondents. 2. This application has been filed by the petitioner under section 114 of the Code of Civil Procedure for review of the judgment of this Court dated 5.5.95 in Civil Revision No.93 of 1995 (1995 (1) GLJ 552). 3. The main ground taken in this review application is that the petitioner has not been heard fully before the judgment and order dated 5.5.95 was passed by this Court. In paragraph 3 of the said judgment and order dated 5.5.95 this Court has recorded that while the learned counsel for the parties advanced argument on 4.4.95 and 5.4.95 when the case was listed for further hearing on 10.4.95, while the counsel for the opposite party appeared, none appeared on behalf of the petitioner. Now that the petitioner has stated in this review application the reasons as to why his counsel could not appear on 10.4.95 before this Court, I am of the view that Civil Revision No.93 of 1995 should be heard once again. 4. When the civil revision was taken up for hearing on merit, Mr. A. S. Choudhury, learned counsel for the petitioner, submitted that the application dated 29.11.94 which was filed by the petitioner before the Additional District Judge in TA No. 11 of 1995 was not one under Order 13, Rule 10, CPC, but under Order 41, Rule 27, CPC, for adducing additional evidence. Mr. Choudhury, submitted that by the application dated 29.11.94, the petitioner actually sought to file additional evidence, namely money receipts granted by the respondents which would go to show that the petitioner had paid money which were to be adjusted against the rent payable by the petitioner to the opposite party and hence the records of MSNo.20 of 1988 and 19 of 1982 which were pending in the Court of the Assistant District Judge No. 1 Gauhati was sought to be called for the purpose of leading the evidence before the appellate Court. Mr. Choudhury also brought to my notice the order dated 29.9.93 passed by this Court in the Civil Revision No.279 of 1993 in which this Court directed the learned Assistant District Judge to try the suit after taking into consideration the documents referred to in the application dated 31.3.93 and to record evidence on 12.10.94. Mr. Mr. Choudhury also brought to my notice the order dated 29.9.93 passed by this Court in the Civil Revision No.279 of 1993 in which this Court directed the learned Assistant District Judge to try the suit after taking into consideration the documents referred to in the application dated 31.3.93 and to record evidence on 12.10.94. Mr. Choudhury states that despite the order dated 29.9.94 in Civil Revision No 279 of 1993 the suit was disposed of on 8.10.94 without considering the documents and without recording evidence as directed by this Court. According to Mr. Choudhury, therefore, this is a case where the trial Court had refused to admit evidence which ought to have been admitted and the petitioner was entitled to adduce additional evidence at the appellate stage for proper adjudication of the suit by filing an application before the learned Additional District Judge under Order 41, Rule 27, CPC, and the learned Additional District Judge ought not to have treated the application dated 29.11.94 as one under Order 13, Rule 10, CPC, and rejected the same on the ground that the petition is not supported by an affidavit showing how the records sought to be called for were material and relevant to suit as required under Order 13, Rule 10, CPC. 5. Mr. A. M. Mazumdar, learned counsel for the respondent, in reply submitted that the powers of this Court for review are circumscribed by Order 47, CPC and the present case does not fall within the parameters of Order 47, CPC and hence this Court ought not review the order and judgment dated 5.5.95 dismissing Civil Revision No.93 of 1995. Mr. Mazumdar also produced before me the certified copy of the order sheet of the trial Court which indicates that on 4.10.93 the learned counsel for the defendant-petitioner submitted before the trial Court that no further evidence would be adduced on behalf of the petitioner and accordingly evidence on behalf of the defence was closed. He further argued that the order sheet would show that sufficient opportunities were given by the trial Court to the petitioner to adduce evidence but the said opportunities were not availed by the petitioner and therefore there is no injustice to the petitioner as is sought to be made out by Mr.A. S. Choudhury. Mr. He further argued that the order sheet would show that sufficient opportunities were given by the trial Court to the petitioner to adduce evidence but the said opportunities were not availed by the petitioner and therefore there is no injustice to the petitioner as is sought to be made out by Mr.A. S. Choudhury. Mr. Mazumdar also submitted that in any case if the petitioner wanted to adduce additional evidence, he ought to have filed a petition for additional evidence under Order 41, Rule 27, CPC before the appellate Court at the very first instance but instead of filing such application, the petitioner has been adopting all kinds of dilatory tactics to delay the proceedings in the Court and to remain in the suit house from which he was sought to be evicted by the suit. Mr. Mazumdar further submitted that the question of adducing additional evidence will only arise if the conditions as mentioned under Order 41, Rule 27, CPC were satisfied and not otherwise and in the present case the said conditions of Order 41, Rule 27, CPC, were not satisfied. 6. For reasons stated in paragraph 3 above, 1 have heard Civil Revision No.93 of 1995 afresh. According to Mr. Choudhury, the application dated 29.11.93 of the petitioner before the learned Additional District Judge was an application under Order 41, Rule 27, CPC but not an application under Order!3, Rule 10, CPC for calling for records. It is difficult to accept the submission of Mr. Choudhury. On a plain reading of aforesaid application dated 29.11.93,1 find that it is one for calling for records of MS No.20 of 1988 and 19 of 1992 pending in the Court of the Assistant District Judge and it cannot be construed as one for adducing additional evidence under Order 41, Rule 27, CPC. Mr. Choudhury vehemently argued since it was before the appellate Court that the application was filed it should be presumed that it is one under Order 41, Rule 27, CPC for additional evidence before the appellate Court. It is difficult to accept this submission of Mr. Choudhury. The nature of an application and the provisions under which it is made can be determined by the Court only from the contents of the application and not by presuming something which does not exist in the application. It is difficult to accept this submission of Mr. Choudhury. The nature of an application and the provisions under which it is made can be determined by the Court only from the contents of the application and not by presuming something which does not exist in the application. On reading the application as a whole it is not possible at all to accept the submission of Mr. Choudhury that the application is one for adducing additional evidence under Order 41, Rule 27, CPC and not one for calling for records under Order 13, Rule 10, CPC. But the said application under Order 13, Rule 10, CPC has not been supported by any affidavit showing as to how the records sought to be called for from the other Court are relevant for deciding the case as required by sub-rule (2) of Rule 10, Order 13, CPC, and could not be entertained. I do not therefore find any reason to alter my earlier judgment and order dated 5.5.95 dismissing the civil revision. 7. This is not to say that the petitioner is without any remedy. It is open to him to file an application under Order 41, Rule 27, CPC before the learned Additional District Judge in TA No. 11 of 1993 for adducing additional evidence and for exhibiting the money receipts which are said to have been filed in MS No. 20 of 1988 and 19 of 1992 pending in the Court of the Assistant District Judge No. l, Gauhati. In case such an application is filed by the petitioner, it has to be considered by the learned Additional District Judge in the light of the provisions of Order 41, Rule 27, CPC and the respondent may object that the petition for additional evidence does not satisfy the conditions in Order 41, Rule 27, CPC and should not be allowed. In this civil revision, this Court should not express any opinion on the question as to whether such additional evidence should be allowed by the appellate Court or not. It is for the appellate Court to decide as to whether it will allow or not allow such additional evidence if such an application is filed. In this civil revision, this Court should not express any opinion on the question as to whether such additional evidence should be allowed by the appellate Court or not. It is for the appellate Court to decide as to whether it will allow or not allow such additional evidence if such an application is filed. I further make it clear that in case an application is filed by the petitioner before the appellate Court, the appellate Court shall expeditiously dispose of the said application as the suit is of the year 1989.