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2002 DIGILAW 275 (CAL)

Bimal Sharma v. Paresh Chandra Saha

2002-04-24

Narayan Chandra Sil

body2002
JUDGMENT Narayan Chandra Sil, J. This is to consider a revisional application under section 115 of the Code of Civil Procedure arising out of an order No. 28 dated 7.2.1995 passed by Sri A. K. Mukherjee, learned Assistant District Judge, 2nd Court, Hooghly in connection with Title Appeal No.8 of 1992 allowing the petition of the O. P. permitting the P.W.1 Paresh Chandra Saha to be examined on the points given in the petition dated 22.4.1994. 2. It is stated in the revisional application that the petitioner took a tenancy from Sri Amar Nath Ghosh, the-then owner and thereafter the petitioner made a construction at his own cost and since then the petitioner has been carrying on manufacturing business of wooden furniture. It is also stated that the O. P. some time in 1979 purchased the said plot of land from the original owner Amarnath Ghosh and thereafter the petitioner started paying monthly rent in respect of the said premises and paid rents upto the month of May, 1985. But, thereafter the O. P. refused to take the rents from the petitioner and finding no other alternative the petitioner sent the monthly rents from June, 1985 to November, 1985 by postal money order to the O. P. The petitioner also remitted the rent for the month of December by postal money order but the O. P's refused to accept the same and thereafter filed the Title Suit being T. S. No. 173 of 1986 for decree of khas possession and eviction of the revisionist from the suit premises and for other reliefs. The revisionist contested the suit and the learned Trial Court was pleased to dismiss the suit on 18.12.1991. Thereafter, the plaintiff/O.P. filed the appeal being Title Appeal No.8 of 1994 and the revisionist also appeared in the said appeal. In the said appeal the O. P./appellant filed an application under Order 41 Rule 27 of the Code of Civil Procedure for adducing evidence which was also contested by the revisionist. The appellant in the said application wanted to examine the P. W.1 on the following issues: "(a) Who drafted the notice under section 106 of the Transfer of Property Act ? (b) Who typed and in which paper it was typed? (c) Have you seen when it was typed? (d) Who signed the notice under section 106 of the Transfer of Property Act? (b) Who typed and in which paper it was typed? (c) Have you seen when it was typed? (d) Who signed the notice under section 106 of the Transfer of Property Act? (e) Who prepared for posting the notice? (D Where it was posted? (g) Have you read the eviction notice ?" 3. It is stated in the revisional application that the P.W.1 in his deposition before the trial court had categorically answered all the questions stated above. The learned lower appellate court fixed 1.2.1995 for hearing of the appeal and also petition under Order 41 Rule 27 of the Civil Procedure Code. The O. P./ plaintiff did not press the application under Order 41 Rule 27 of the Code of Civil Procedure but the petition for recalling the P. W. 1 and the appeal were heard by the lower appellate court and the lower appellate court was pleased to pass an order allowing the petition for recalling the P. W. 1 to depose on the questions mentioned in that application. And being aggrieved and dissatisfied with that order the present revisional application was filed. 4. Mr. S. P. Sharma, the learned Advocate appearing for the revisionist/ defendant submits before me that the impugned order dated 7.2.1995 is as regards the two petitions dated 22.4.1994 and 7.2.1995. It is pointed out by Mr. Sharma that after the filing of the present revisional application before this court, this court was pleased to pass a stay order as regards the proceeding of the appeal pending before the appellate court but the appellate court had disposed of the appeal during the pendency of this revisional application and subsistence of the stay order passed by this court. It is pointed out by Mr. Sharma that in both the applications dated 22.4.1994 and 7.2.1995 the similar grounds were taken by the plaintiff that due to some mistake the learned Advocate for the plaintiff could not take some points from the P. W. 1 during his examination before the trial court. Mr. Sharma has further submitted before me that the trial court was pleased to dismiss the suit on one of the grounds that the service of notice was not made properly and this lacuna had been filled in if the P. W. 1 is permitted to be examined further by the lower appellate court. It is also pointed out by Mr. Sharma has further submitted before me that the trial court was pleased to dismiss the suit on one of the grounds that the service of notice was not made properly and this lacuna had been filled in if the P. W. 1 is permitted to be examined further by the lower appellate court. It is also pointed out by Mr. Sharma that from the deposition of the P. W.1 it appears that some of the matters appearing in the schedules to those two petitions were already in the evidence of the P. W.1. 5. Mr. Sharma has cited a number of case laws. Thus, it was held in the case of Arjan Singh vs. Kartar Singh & Ors., AIR 1951 SC 193 , that the discretion given to the appellant by Order 41 Rule 27 of the Code of Civil Procedure to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitation specified in that rule. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored and the case decided as if it is non-existent. It was decided in the case of State of U. P. vs. Manbodhan Lal Srivastava, AIR 1957 SC 912 , that it is well-settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting, its case at the proper stage and to fill in gaps. Of course, the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the parties. It was held in the case of Anma Das Sharma vs. Lawrance Treuor Picachy, 1976 (2) CLJ 243 , that the appellate court power under Order 41 Rule 27 of CPC to admit additional evidence where the court feels that in the interest of justice something which remains obscure should be cleared up so that the court may pronounce judgment in a more satisfactory manner. It was further held in that case that negligence of a party in adducing evidence before the trial court is no bar to the admission of additional evidence where the appellate court itself requires such evidence for a satisfactory decision. It was held in the case of Bangshidhar Pal vs. Anil Kumar Pal, 1994 (2) CLJ 114, that the principles that emerge on analysis of Order 41 Rule 27 of CPC are that (i) production of additional evidence at the appellate state is generally prohibited (ii) the provisions apply to both oral and documentary evidence (iii) while clauses (a) and (aa) of the Rule may be invoked by a party to the appeal, clause (b) can be invoked by the appellate court alone and (iv) that the liberty or permission granted under this provision does not dispense with the requirement to prove the same in conformity with the Evidence Act. It was held in the case of Syed Abdul Khader vs. Rami Reddy, AIR 1979 SC 553 , that Order 41 Rule 27 of CPC does not confer right on the party to produce additional evidence. But if the court hearing the action requires any document so as to enable it to pronounce judgment, it has the jurisdiction to permit additional evidence to be produced. 6. Mr. S. B. Bhuniya, learned Advocate appearing on behalf of the plaintiff/ O.P. submits before me that the stay order passed by this court in connection with this revisional application was ultimately not communicated to the learned lower appellate court and this had permitted the learned appellate court to dispose of the appeal itself. Mr. Bhuniya has then argued that the case laws cited by the learned Advocate for the petitioner have no application to the instant case inasmuch as all documents had been filed there before the trial court and as such this is not a case to fill up the lacuna. Mr. Bhuniya has then drawn my attention to the judgment of the learned trial court and tries to impress upon me that the trial court dismissed the suit because notice/envelope containing the notice although filed, had not been exhibited and this had permitted the appellant/plaintiff before the lower appellate court to file applications for adducing additional evidence by way of recalling the P.W.I. Mr. Bhuniya has then submitted before me that there is absolutely no error of the learned lower appellate court in exercising its jurisdiction in disposing of the petitions. Mr. Bhuniya has cited a number case laws which I shall discuss if only it is necessary to be discussed. 7. The trial court dismissed the suit and the lower appellate court after having taken the evidence of the P. W. 1 on recall and in allowing petition under Order 41 Rule 27 of the Code of Civil Procedure had set aside the judgment and set aside decree passed by the trial court and decreed the suit. The trial court appears to have observed in its judgment, as it appears from the paper book, "But the envelope (where the notice was alleged to have been contained for register) has not been exhibited by the plaintiff in order to show that the said notices [ext. 2 and ext. 2(a)] contained in the registered envelopes were tendered upon the defendant and that he refused to accept the same or that the notice was returned with the registered envelope after postal remark 'refused'.............. Therefore, the plaintiff had failed to prove that the notice was tendered upon the defendant and that the defendant refused the same. Thus, the learned Munsif in coming to his decision appears to have stressed much on the fact that the envelope had not been exhibited by the plaintiff and this is exactly what was done by way of adducing additional evidence when the P. W. 1 was recalled by the lower appellate court. It is a pointer to note that all the documents had already been filed before the trial court and the recalling of the P. W. 1 appeared to facilitate the lower appellate court to pass the judgment in a convenient way. This does not amount to fill up the lacuna and as such the case laws referred to by the learned Advocate for the revisionist do not come to any help to the revisionist. 8. The subsistence and existence of the stay order passed by this court was not communicated to the learned lower court which was, in fact, incumbent upon this present revisionist and from the point of view also I do not find any illegality or irregularity to have been committed by the learned lower court. 9. The revisional application, thus, fails. 8. The subsistence and existence of the stay order passed by this court was not communicated to the learned lower court which was, in fact, incumbent upon this present revisionist and from the point of view also I do not find any illegality or irregularity to have been committed by the learned lower court. 9. The revisional application, thus, fails. The revisional application is dismissed on contest without any costs. The impugned order passed by the learned lower appellate court is hereby affirmed. Revisional application dismissed.