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2003 DIGILAW 729 (PNJ)

Rajiv Kumar v. Bharat Parkash

2003-05-15

M.M.KUMAR

body2003
ORDER M.M. Kumar, J. - This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, the Code) is directed against the order dated 29.3.2003 passed by the Additional District Judge, Barnala, dismissing the application of the plaintiff-petitioner filed under Order 41 Rule 27 of the Code. The plaintiff-petitioner has applied for adducing of additional evidence by producing a document allegedly 76 years old showing the mutation of inheritance of Wadhau son of Pirthi great grandfather of the plaintiff- appellant. 2. Brief facts of the case necessary for deciding the controversy raised in the instant petition are that the plaintiff-petitioner filed a suit for declaration claiming that the suit property is ancestral coparcenary property and defendant-respondent No. 3 Jaswant Rai had no right to sell it. The pedigree table shows that property in the hands of Raja Ram was coparcenary and it has further been inherited by defendant-respondents 1 to 4 from Raja Ram. The pedigree table as supplied by the plaintiff-petitioner reads as under :- 3. The suit has been filed through mother of the petitioner in her capacity as guardian as he is a minor. The suit was dismissed by the Civil Judge on the ground that no mutation of inheritance was produced by the plaintiff- petitioner. An appeal was preferred against the afore-mentioned judgment being CAJ No. 145 of 25.7.2001. During the pendency of the appeal, the plaintiff-petitioner filed an application under Order 41 Rule 27 of the Code claiming that mutation No. 3087 dated 22 Maghar, Sammant 83 which is about 76 years old has been found. The said mutation which is in Urdu script was not in the knowledge of the guardian of the plaintiff-petitioner who is a female. It was claimed that the aforementioned document was necessary for adjudication of the dispute before the appellate court and goes to the roots of the case. That application was dismissed by the learned appellate Court by recording the following order :- "After hearing the learned counsel for the parties and going through the record, it is found that it is the case of the plaintiff-appellant that he was entitled to inherit the property of his grandfather and great grandfather and Wadhau was the great grandfather of the plaintiff-appellant. It is also the case of the plaintiff-appellant that Raja Ram grandfather of the plaintiff- appellant had inherited the property from Wadhau and as such it was very much in the knowledge of the plaintiff-appellant that mutation of inheritance of Wadhau was sanctioned in favour of Raja Ram, and as such, it was required from the plaintiff-appellant to produce the said document, while instituting the suit. The document sought to be produced by the plaintiff- appellant in additional evidence was certainly in the knowledge of the plaintiff-appellant, which cannot be allowed to be produced, at this stage. Thus, the application filed by the plaintiff-appellant for leading additional evidence is dismissed." 4. After hearing learned counsel for the plaintiff-petitioner, I am of the considered view that this petition deserves to be allowed because under Order 41 Rule 27 of the Code, the question as to whether the additional evidence sought to be produced is necessary to enable the court to pronounce judgment for any other substantial cause, can more effectively be decided at the stage when the appeal is heard on merits. Hearing of the application when deciding the appeal, would show the necessity of additional evidence and its effect on the issues raised before the Courts. In cases where the appellate court feels that the additional evidence produced before the Court would enable it to pronounce the judgment satisfactorily to the mind of the Court, then it is more appropriate to decide the application at the stage when the appeal is decided. In K. Venkataramiah v. A. Seetharama Reddy and others, AIR 1963 SC 1526 relying on the judgment of the Privy Council in the case of Manmohan v. Mt. Ramdei, AIR 1931 Privy Council 175, a Constitution Bench of the Supreme Court observed as under :- ".........The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Ramdei, AIR 1931 Privy Council 175, a Constitution Bench of the Supreme Court observed as under :- ".........The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause." There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one, for allowing additional evidence "for any other substantial cause" under Rule 27(1)(b) of the Code. It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence....." Similar view has been taken by another Constitution Bench of the Supreme Court in the case of Municipal Corporation, Greater Bombay v. Lala Pancham and others, AIR 1965 SC 1008. The aforementioned principle has been further extended in the case of State of Rajasthan v. T. Sahani, 2001(2) Recent Civil Reports 419 and it has been held that if the Court deciding the appeal comes to the conclusion that in the interest of justice some thing which remained obscured should be filled up to enable it to pronounce the judgment in more satisfactory manner, then it shall do so at the time of hearing of the appeal on merits. The following paragraph of the judgment in T. Sahanis case (supra) highlights the aforementioned view which reads as under :- "It may be pointed out that this Court as long back as in 1963 in K. Venkataramiah v. Seetharam Reddy, AIR 1963 SC 1526, pointed out the scope of unamended provision of Order 41 Rule 27(c) that though there might well be cases where even though the Court found that it was able to pronounce the judgment on the state of the record as it was, and so, it could not be required additional evidence to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. This is entirely for the Court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41, Rule 27(b), Civil Procedure Code can be invoked. So the application under Order 41, Rule 27 should have been decided along with the appeal. Had the court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view would be inappropriate. Further, the reason given for the dismissal of the applications is untenable. The order under challenge cannot, therefore, be sustained, it is accordingly set aside. The application is restored to its file. The High Court will not consider the appeal and the application and decide the matter afresh in accordance with law." 5. When the facts of the instant case are examined in light of the principles laid down by the Supreme Court, it becomes evident that the application filed by the plaintiff-petitioner under Order 41 Rule 27 of the Code for adducing additional evidence could have more effectively decided at the state of hearing of the appeal, rather than independently. When the facts of the instant case are examined in light of the principles laid down by the Supreme Court, it becomes evident that the application filed by the plaintiff-petitioner under Order 41 Rule 27 of the Code for adducing additional evidence could have more effectively decided at the state of hearing of the appeal, rather than independently. The mutation of inheritance sought to be adduced in evidence can more appropriately be considered when the appeal is to be heard, rather than at a stage earlier to that. Therefore, this petition is accepted and the impugned order dated 29.3.2003 is set aside. The learned Additional District Judge is directed to consider the application at the stage of hearing the appeal and decide the same by keeping in view the principles of Order 41 Rule 27 of the Code. It is made clear that any observation made in this order shall not constitute an expression of opinion on merits of the case. Order accordingly.