Research › Search › Judgment

Calcutta High Court · body

2008 DIGILAW 752 (CAL)

Kalavati Pandey v. Madhabi Mukherjee

2008-07-30

L.NARASIMHA REDDY

body2008
Judgment : TAPAS KUMAR GIRI, J. (1.) THIS application under Article 227 of the Constitution of India is directed against an order being No. 49 dated 16th November, 2006 passed by the Learned judge, 2nd Bench, City Civil Court at Calcutta in Title Appeal No. 68 of 2001 by which the Learned Judge allowed the prayer for adducing additional evidence under order 41 Rule 27 of the Code of Civil Procedure at a stage when the final hearing of the appeal did not commence. (2.) THE plaintiffs/appellants/opposite parties filed a suit for ejectment No. 1117 of 2000 against the defendant/respondent/petitioner before the Learned 3rd Court of the presidency Small Causes Court at Calcutta. (3.) THE defendant contested in the above suit. The Learned 3rd Court, the presidency Small Causes Court at Calcutta dismissed the suit on contest. (4.) THE plaintiffs have filed the Appeal i. e,. T. A. No. 68 of 2001 and the said appeal is pending before the Learned 2nd Bench, City Civil Court at Calcutta. During the pendency of the said appeal, the plaintiffs/appellants/opposite parties filed an application under Order 41 Rule 27 read with Section 151 of the C. P. Code to adduce additional evidence. After hearing, the Learned Judge 2nd Bench City Civil Court at calcutta allowed the said application on contest without cost on 16. 11. 2006. (5.) BEING aggrieved by and dissatisfied with the said order dated 16th November, 2006 passed by the Learned Judge, 2nd Bench, City Civil Court at Calcutta, the defendant/respondent/petitioner has filed the present application under Article 227 of the Constitution of India for setting aside the same. (6.) MR. Priyabrata Mukherjee, Learned Senior Advocate appearing on behalf of the petitioner contended that the Learned appellate Court below acted illegally with material irregularity in allowing the application under Order 41 Rule 27 read with section 151 of the C. P. Code. (7.) LEARNED Advocate Mr. Mukherjee also contended that at the time of hearing of the appeal if the Learned Appellate Court feels to require additional evidence in order to proper adjudication of the case then the Learned Court may allow the prayer for adducing additional evidence under Order 41 Rule 27 of the C. P. Code. But the learned Appellate Court did not do the same. As such the Learned Court made a patent error in law in the above order. (8.) MR. But the learned Appellate Court did not do the same. As such the Learned Court made a patent error in law in the above order. (8.) MR. Mukherjee, Learned Advocate also urged the relevant provision of Order 41 Rule 27 (aa) as well as Order 41 Rule 29 of the Code of Civil Procedure to show at what stage when the appellate authority may take the additional evidence. (9.) AS such the order dated 16. 11. 2006 passed by the Learned Judge, 2nd Bench city Civil Court at Calcutta is liable to be set aside. (10.) IN support of the contention the Learned Advocate cited the case laws reported in 2007 (8) Supreme Today " 168 (K. R. Mohan Reddy V. M/s. Net Work Inc. Rep. TR. M. D.) 2008 (3) S. C. C. "120 (Basayyal Mathad V. Rudrayya S. Mathod), 2006 (9) SCC "772 (State of Gujarat V. Mahendra Kumar Parshottambhai Desai), air 1998 Calcutta "29 (Smt. Sakuntala Chakraborty V. Shiba Prosad Roy and another), 1994 (2) CLJ "114 (Bangshidhar Pal V. Anil Kumar Pal). (11.) LEARNED Advocate Mr. A. K. Sadhukhan appearing on behalf of the opposite party submitted the written notes of submission and also urged that an application dated 24. 9. 1997 was filed before the Learned Trial Court to adduce additional evidence on the ground that the plaintiff/appellant No. 2 cancelled the agreement for sale dated 25. 09. 1995 by a letter dated 02. 09. 1997 in respect of 1/3rd share of the suit premises for non-compliance of the terms and conditions of the agreement. But the learned Trial Court refused to admit such evidence. The Learned Appellate Court rightly allowed the application for proper adjudication of the case. There is no illegality in the said order dated 16. 11. 2006. The present application is liable to be dismissed. The Learned Advocate cited the cases reported in Supreme Today 2007 (8) P. 168 (K. R. Mohan Reddy V. M/s. Net Work Inc. Rep. TR. M. D.), AIR 1987 s. C. P. 558 (Yudhishter -vs.-Ashok Kumar), 2001 (9) S. C. C. P-245 (Smt. Badami devi and Another V. Smt. Ambuja Raghavan), AIR 1963 S. C. P.- 1527 (K. Venkataramiah -vs.-A. Seetharama Reddy and Ors.). (12.) BEFORE considering the merits of the present revisional application it is necessary to mention the relevant observation of the case laws cited by Learned advocates of both sides. (12.) BEFORE considering the merits of the present revisional application it is necessary to mention the relevant observation of the case laws cited by Learned advocates of both sides. (13.) IN the case law K. R. Mohan Reddy (supra) the Apex Court observed "conditions precedent for application of clause (aa) of sub-rule (1) of Rule 27 of order 41 is different from that of clause (b). In case of former, it would be for the applicant to show that the ingredients or conditions precedent mentioned therein are satisfied while in the latter case. The Appellate Court is bound to consider the entire evidence on record and come to an independent finding that for arriving at a just decision, abduction of additional evidence as prayed for was necessary. The appellate court should not pass an order so as to patch up the weakness of the evidence of unsuccessful party before the trial court, but it will be different if the court itself requires the evidence to do justice between the parties. (14.) IN the case Basayyal (supra) the Apex Court observed "parties to the lis are not entitled to produce additional evidence as a matter of course or routine. They must satisfy the condition stated in Order 41 Rule 27 of the Code of Civil Procedure. " (15.) IN the case State of Gujarat (supra) the Apex Court observed "rule 27 (1) (b) of order 41 can be invoked only if the 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. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for the purposes of pronouncement of judgment in a particular way. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for the purposes of pronouncement of judgment in a particular way. " (16.) IN the case Smt. Sakuntala Chakraborty (supra), "it was observed by this Court that in case of an application under Order 41 Rule 27 of the Code of Civil Procedure for adducing additional evidence in appeal should be heard along with the appeal and without assessing evidence already on record it cannot be ascertained by Court whether additional evidence would be necessary or not for proper adjudication of the appeal." (17.) IN the case Bansidhar Pal (supra) it was observed by this Court "it is not permissible for any Appellate Court under the law to form an opinion regarding any issue in an application under Order 41 Rule 27 of the Code of Civil Procedure as that will amount to prejudging the issue without hearing the appeal on merit. That such applications cannot be disposed of in isolation without hearing the appeal is further clarified by the provisions of Order 41 Rule 29 where the Appellate Court is required to define or record the points to which the additional evidence is to be confined if allowed to be taken, cannot be done without hearing the appeal itself. " (18.) IN the case law Yudhishter (supra) the Apex Court observed that "the appellate Authority has jurisdiction to admit additional evidence and the parties had ample opportunity to test veracity and to examine and submit and value of such additional evidence." (19.) IN case of K. Venkataramiah (supra) the Apex Court observed "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." (20.) THE other relevant decisions are not necessary for consideration in connection of the present application. (21.) FROM the above reported decisions as cited by Learned Advocates of both sides, according to Order 41 Rule 27 and Order 41 Rule 29 of the Code of Civil procedure the application for additional evidence should be heard along with the appeal and without assessing the evidence it cannot be ascertained whether the additional evidence would be necessary or not for proper adjudication of the appeal. Under Article 227 of the Constitution of India, a High Court is vested with authority to have power of superintendence over all Courts and Tribunals situated within its territorial limit and in exercise of such power, the High Court can even suo motu interfere with improper decision of those Courts and Tribunals for preventing miscarriage of justice. (22.) LET us now consider whether the order dated 16. 11. 2006 suffers any miscarriage of justice or not. It is admitted that during the pendency of Appeal (T. A. 68 of 2001) the application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure was filed by the plaintiffs/appellants/opposite parties before the Learned Appellate court and it was disposed of on 16. 11. 2006 in isolation without hearing the appeal. (23.) IN the present case the Learned Court allowed the said application on the basis of the application of the appellant to produce additional evidence. The condition as stated in sub-clauses (a) and (aa) of Rule 27 Order 41 and Rule 29 Order 41 of the code of the Civil Procedure must satisfy. The Learned Appellate Court did not follow those conditions for production of additional evidence. (24.) IN the above circumstances the impugned order dated 16. 11. 06 is liable to be set aside. The revisional application is disposed of accordingly. There will be no order as to costs.