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2003 DIGILAW 40 (GAU)

Sapam Ibomcha Singh v. Sapam Ningol Ibema Devi

2003-01-28

B.B.DEB

body2003
B.B. Deb, J.— Heard Mr N. Kerani, learned senior counsel for the petitioner and Mr A. Nilamani, learned senior counsel for the respondent. 2. The original suit bearing No. 25/93/10 of 1995 was decreed in favour of the plaintiff (respondent herein). Being aggrieved, the defendant (petitioner herein) preferred first appeal (F.A. 1/2002) which is pending before the learned District Judge, Manipur East. During the pendency of the first appeal, the plaintiff-respondent filed a petition before the learned first appellate Court under Order XLI Rule 27 of the Code of Civil Procedure for taking some documentary evidence as additional evidence. The appellate Court after hearing the parties allowed the plaintiff-respondent to produce the documentary evidence as prayed for and remitted the case to the learned trial Court for recording additional evidence, of course the defendant-appellant was also allowed opportunity to produce rebuttal documentary evidence. Being aggrieved, the defendant-appellant filed this revision petition under Section 115 of the C.RC. contending, inter alia, that the learned appellate Court exercised the jurisdiction not vested in it and in exercising jurisdiction, the learned appellate Court committed material illegality in view of the provision of Order XLI Rule 27(1) of the C.RC. 3. The learned appellate Court shall not allow either of the parties to produce additional evidence whether oral or documentary in the pending appeal unless either of the circumstances mentioned in Clause (a), (aa) and (b) of Order XLI Rule 27( 1) is fulfilled. Clause (a) permits the learned appellate Court to allow additional evidence if it could be pointed out that the learned trial Court refused to admit any evidence which ought to have been admitted. Under Clause (aa), a party to the appeal may be allowed to produce additional evidence if he/she could satisfy the learned appellate Court that "notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him," during trial. Under Clause (b), the learned appellate Court can require any document to be produced or any witness to be examined to enable it to pronounce the judgment and/or for any other substantial cause. 4. Under Clause (b), the learned appellate Court can require any document to be produced or any witness to be examined to enable it to pronounce the judgment and/or for any other substantial cause. 4. The learned appellate Court after considering the implication of the three circumstances enumerated in the aforementioned clauses, held in paragraph 5 of the impugned judgment that "it is not the case of the petitioner that the above said first circumstances is attracted". The learned appellate Court further ,held that "In my opinion, the second circumstances under which production of additional evidence may be allowed is also not attracted" and thereafter, the learned appellate Court applying the ratio of a decision of the Hon'ble Supreme Court in Mahabir Singh-Vs-Nareshchandra, reported in (2001)1 SCC 309 , allowed the production of additional documentary evidence in exercise of its power under circumstances narrated in Clause (b) of Order XLI Rule 27(1) C.RC. 5. On perusal of the aforementioned Clause (b) and following the ratio of Mahabir Singh (supra), it reveals that the learned appellate Court if after hearing the parties on merit in appeal finds it difficult to render effective judgment in absence of some documents or witness pointed out to it by either of the parties, the learned appellate Court can take resort to aforesaid provision. From the order sheets of the learned appellate Court, it appears that hearing of the appeal on merit has not yet been commenced and as such invoking the power under Clause (b) of Order XLI Rule 27(1) C.P.C. appears to be premature. The learned appellate Court undoubtedly has the power to allow any party before it to adduce additional evidence, oral or documentary, if it is satisfied after hearing the parties to the appeal on merit that such additional evidence is required to decide the case. However, in a given case, if any circumstances could be pointed out falling under Clause (a) of Clause (aa) of Order XLI Rule 27(1) C.P.C. the learned appellate Court can undoubtedly exercise the power even before the commencement of the hearing of appeal on merit. 6. In that view of the matter, in my considered opinion, the learned appellate Court cannot exercise its power under Order XLI Rule 27(l)(b) of the C.P.C. before commencement of hearing of appeal on merit. 6. In that view of the matter, in my considered opinion, the learned appellate Court cannot exercise its power under Order XLI Rule 27(l)(b) of the C.P.C. before commencement of hearing of appeal on merit. Only in course of hearing of appeal on merit if it appears to be expedient for rendering effective decision or for any other substantial cause, the learned appellate Court may require additional evidence, documentary or oral, to be produced by either of the parties. 7. In that view of the matter, in my considered opinion, the learned appellate Court exercised its power under Order XLI Rule 27(1 )(b) C.P.C. at a premature stage and thus the impugned order is liable to be and is hereby quashed. 8. In the result, the revision petition is allowed and is disposed of accordingly. 9. Send down the L.C. record. The learned appellate Court is to decide the matter as quick as possible within a period of 3 (three) months.