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2005 DIGILAW 1193 (MP)

GINDIABAI v. ELFERT LTD. COMPANY

2005-11-24

K.K.LAHOTI

body2005
ORDER K.K. Lahoti, J. Shri A. K. Jain, Adv. for the petitioner. Shri Kishore Shrivastava, Sr. Adv. for respondent Nos. 3 and 4. Petitioner has challenged order dt. 3-10-2005 passed by First Additional District Judge, Katni in Civil Appeal No. 40-A/04 by which the Appellate Court decided two applications filed by the petitioner, one under Order 6, Rule 17, CPC seeking amendment in the plaint, another application under Order 41, Rule 27, CPC seeking permission of the Court for producing additional evidence. Respondents contested the application on the ground that the proposed amendment which is sought by the petitioner before the Appellate Court was also prayed before the trial Court and the trial Court vide order dt. 27-1-2004 (in the impugned order it is mentioned as 22-1-2004) allowed the application and the trial Court permitted the plaintiff to incorporate the aforesaid pleadings in the plaint. When the trial Court itself has allowed the same amendment, there was no question of repeating the aforesaid pleadings by filing application before the Appellate Court. So far as the application filed under Order 41, Rule 27, CPC is concern, it was misconceived as the documents were already produced before the trial Court and were marked as exhibits in the evidence but were not duly proved in the trial and to fill up the lacuna, the aforesaid document cannot be admitted as additional evidence before the Appellate Court. The Appellate Court by the impugned order found that the proposed amendment as prayed in the application was prayed before the trial Court and it was allowed and the plaintiff had incorporated the aforesaid amendment in the pleadings. In these circumstances, there is no necessity for allowing the aforesaid application. This factual position has not been disputed by the petitioner before this Court, so in this part of the order there is no error and needs no interference. So far as the application under Order 41, Rule 27, CPC is concerned, the sole contention of the petitioner before this Court is that the aforesaid application ought to have been decided by the Appellate Court at the time of decision of the appeal while hearing the appeal on merits and not at an intermediate stage. So far as the application under Order 41, Rule 27, CPC is concerned, the sole contention of the petitioner before this Court is that the aforesaid application ought to have been decided by the Appellate Court at the time of decision of the appeal while hearing the appeal on merits and not at an intermediate stage. Reliance is placed to the Apex Court judgment in State of Rajasthan v. T.N. Sahani and Ors., (2001) 10 SCC 619 and submitted that in view of the law laid down by the Apex Court this petition may be allowed, insofar as it relates to rejection of an application under Order 41, Rule 27, Civil Procedure Code. The factual position is that the documents which were filed by the petitioner in appeal were already admitted in evidence by the trial Court but it appears that aforesaid documents were not duly proved by the petitioner before the trial Court so the application was filed before the Appellate Court for the production of the additional evidence with an intention to prove the aforesaid documents. When the documents were already received in evidence by the trial Court, then there was no question of filing additional evidence before the Appellate Court. Whether those documents were proved or not, or the trial Court had duly afforded an opportunity to prove the aforesaid documents, or whether the petitioner is entitled to get such an opportunity further, all the questions are still open to the petitioner to be raised at the time of hearing of the appeal. But to fill up the lacuna, there is no question of production of additional evidence before the Appellate Court. The Appellate Court is having jurisdiction to admit additional evidence, if the trial Court from whose decree the appeal is preferred had refused to admit evidence which ought to have been admitted and the party seeking to produce additional evidence, establishes 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 at the time when the decree appealed against was passed or 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. But the application filed by the petitioner does not fulfill any such requirement of the law as envisaged under Order 41, Rule 27, Civil Procedure Code. So far as the judgment relied on by the petitioner in T. N. Sahani is concerned, in the aforesaid case the applications filed under Order 6, Rule 17 and under Order 41, Rule 27, CPC were not considered at the time of hearing of appeal on merits and an intermediate stage. In that case applications under Order 41, Rule 27, CPC as well as another application under Order 6, Rule 17, Civil Procedure Code, praying for amendment of the grounds of appeal were filed in appeal before the High Court. The application under Order 6, Rule 17 was dismissed. Taking that aspect into consideration, the High Court dismissed the application under Order 41, Rule 27, Civil Procedure Code. The Apex Court considered this aspect held that it is always open to the Court to look into the document and for that purpose the provisions of Order 41, Rule 27, CPC can be invoked. The application under Order 41, Rule 27, CPC should have been decided along with the appeal. If the High Court found that the documents are necessary to pronounce the judgment in the appeal, it would have allowed the same, if not, the same would have been dismissed at that stage, but before hearing of the appeal, it would be inappropriate to decide the application. Apart from this the reason given for the dismissal of the application were found tenable. But the facts of present case are entirely different. In this case the application itself was misconceived and does not fall within the purview of Order 41, Rule 27, Civil Procedure Code. The Appellate Court considering the application found that the aforesaid documents are already on record and were admitted by the trial Court in evidence. In these circumstances, if the Appellate Court considering the aforesaid aspect has rejected the application, there is no jurisdictional error in the impugned order. Recently the Apex Court considering similar question in Shri Harju v. Smt. Phulari @ Churmarawati and Ors. 2005(10) SCC 191 held :- The grievance of the appellants in this appeal is that despite having noted the aforesaid, the High Court did not decide the application under Order 41, Rule 27 of the CPC at all. Recently the Apex Court considering similar question in Shri Harju v. Smt. Phulari @ Churmarawati and Ors. 2005(10) SCC 191 held :- The grievance of the appellants in this appeal is that despite having noted the aforesaid, the High Court did not decide the application under Order 41, Rule 27 of the CPC at all. Learned Counsel appearing for the respondents has submitted that the High Court's jurisdiction u/s 100 of the Code is a limited one and that it was not open to the appellant to seek leave under Order 41, Rule 27 to adduce fresh evidence at the stage of second appeal. It is further submitted that in any event the application of the appellants was vague and did not otherwise fall within Order 41, Rule 27. It is not necessary for us to go into the merits of the respective contentions of the parties. For the purpose of this appeal it is sufficient to note that the application should have been disposed of either by rejecting it or allowing it by the High Court before deciding the appeal. Accordingly, we set aside the decision of the High Court in second appeal and remand the matter back to the High Court solely for the purpose of considering the application of the appellant under Order 41, Rule 27. Needless to say, if the application is allowed, it would be open to the High Court to reconsider the merits of the appeal as it may deem fit. The decision of the High Court is accordingly set aside and the appeal is disposed of by remanding the matter back to the High Court for the reason stated. In view of the aforesaid law if the petitioner after filing of the application pressed it before the Court, and Appellate Court found that the aforesaid application does not fulfill the requirements of law and rejected on the ground mentioned hereinabove, no fault can be found in the order. So far as the question that the aforesaid documents were duly proved or not, or the trial Court had not extended opportunity to the petitioner to prove it in accordance with law or any opportunity should be allowed further to the petitioner to prove the aforesaid documents, are the questions to be agitated and decided by the Appellate Court at the time of hearing of the appeal. In respect of those contentions, no decision has been taken by the Appellate Court while rejecting the aforesaid application and the petitioner shall be free to agitate the aforesaid contention at the time of hearing, which shall be considered by the Appellate Court. Consequently, this petition is without merit and is dismissed, with the aforesaid observations. No order as to costs. Final Result : Dismissed