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2009 DIGILAW 968 (AP)

Subash Gupta v. V. Narasimha Reddy

2009-12-31

N.V.RAMANA

body2009
ORDER This CRP is directed against the docket order dated 13-10-2009, passed by the II Additional District Judge, Ranga Reddy District, in I.A. No. 1116 of 2009 in C.M.A. No. 136 of 2008, condoning the delay in receiving the documents and receiving them subject to proof, relevancy and admissibility. 2. The petitioners are the plaintiffs while the respondent is the defendant. The petitioners filed suit in O.S. No. 1740 of 2007 against the respondent on the file of II Additional Senior Civil Judge, Ranga Reddy District, for perpetual injunction. Along with the suit, they also filed an application in I.A. No. 1522 of 2007, for injunction. The said application was allowed. Aggrieved by the said order, the respondent filed appeal in CM.A. No. 136 of 2008, and while the appeal is pending, the respondent filed the present application in I.A. No. 1116 of 2009, praying to condone the delay in receiving the certified copy of the judgment dated 8-5-2009 in O.S. No. 594 of 2001, passed by the Principal Junior Civil Judge, Ranga Reddy District, and receive the same. The petitioners contested the said application by filing counter, inter alia contending that as against the said judgment, a regular appeal has been preferred, and therefore, the same having not attained finality, it cannot be received. However, the Court below, by docket order dated 13-10-2009, allowed the I.A. by condoning the delay in receiving the documents and receiving them subject to proof, relevancy and admissibility. Praying to set aside the said order, the petitioners filed the present C.R.P. 3. The learned counsel for the petitioners submitted that resisting the present I.A. filed by the respondent, praying to condone the delay in receiving the document and to receive the same in evidence, the petitioners filed counter. However, the Court below without hearing the counsel for the petitioners and without adverting to the stand taken by the petitioners in their counter, and without recording any reasons whatsoever, much less its subjective satisfaction, has allowed the present application. 4. He submitted that the manner in which the Court below allowed the present application, without recording any reasons, amounts to gross breach of the judicial process. 4. He submitted that the manner in which the Court below allowed the present application, without recording any reasons, amounts to gross breach of the judicial process. He further submitted that when an application filed under Order XLI Rule 27 C.P.C. for production of additional evidence at appellate stage is sought to be allowed the appellate Court shall record the reasons for its receiving, and since the Court below, has condoned the delay in receiving the document and received the same, and allowed the application of the respondent, without recording any reasons whatsoever, the same is liable to be set aside, and in support of this argument, he placed reliance on the judgment of the apex Court Basayya I. Mathad v. Rudrayya S. Mathad and others (1) AIR 2008 SC 1108 . 5. He further submitted that merely because no prejudice would be caused to the petitioners if additional evidence is received, cannot be a ground to allow the application in a casual and mechanical manner, and in support of this argument, he placed reliance on the judgment of the Apex Court in Vadiraj Naggappa Vernekar (dead) through L.Rs. v. Sharadchandra Prabhakar Gogate (2) 2009 (3) SCJ 365 = (2009) 4 SCC 410 . He further submitted that though it is not necessary for the Courts to pass detailed orders in each and every application, but that does not mean, the Court can reduce the exercise of disposal of the applications, to an empty formality and that it is entitled to dispense with the recording of reasons, and in support of this argument, he placed reliance on the judgment of this Court in B. Ramasubba Reddy and another v. Y. Ramakrishna Reddy (3) 2009 (1) ALT 422 = 2009 (1) ALD 279 . Placing reliance on the judgment of the apex Court in North Eastern Railway Admn. v. Bhagwan Das, (4) 2008 (6) SCJ 907 = (2008) 8 SCC 511 , wherein similar order was set aside and the matter remitted to the High Court, he prayed that the order under revision also be set aside and the matter be remitted to the Court below for consideration of the matter afresh and passing of a speaking order after hearing the counsel for both the parties. 6. On the other hand, the learned counsel for the respondent supported the order under revision. 6. On the other hand, the learned counsel for the respondent supported the order under revision. He contended that though a perusal of the order under revision discloses that as if only the counsel for the respondent was heard, but the fact remains, at the time of hearing the present application by the Court below, the counsel for the petitioners was also present, and he was also heard. The Court below at the hearing of the application itself has made it clear that it is going to allow the present application, filed by the respondent praying to condone the delay in receiving the document. Hence, the petitioners cannot now contend that they were not heard. At any rate, he submitted that since the Court below, by reason of the order under revision, condoned the delay in producing the document and received the same subject to relevancy, proof and admissibility, no prejudice would be caused to the petitioners, for they can raise their objections, if any, thereto at the time of hearing of the appeal. 7. The learned counsel for the respondent submitted when an application filed under Order XLI Rule 27 C.P.C. is sought to be allowed, even though the word "shall" is used in Rule 27(2), yet recording of reasons by the Court, is not mandatory, and in support of this submissions, he placed strong reliance on the judgment in K. Venkataramiah v. Seetharama Reddy (5) AIR 1963 SC 1526 , wherein a Constitutional Bench of the apex Court had an occasion to deal with the scope and object of Order XLI Rule 27 C.P.C. He submitted that an order passed by a Court permitting production of additional evidence under Order XVIII Rule 17-A and Order XLI Rule 27 C.P.C., is passed in exercise of discretionary power of the Court, and when the Court in exercise of discretion, permits production of additional evidence, it cannot ordinarily be interfered by this High Court in exercise of its revisional jurisdiction, and in support of this argument, he placed reliance on the judgments of the apex Court in Balwant Singh v. Darshan Singh (6) (2005) 7 SCC 117 and North Eastern Railway Admn. v. Bhagwan Das (4 supra). v. Bhagwan Das (4 supra). Hence, he prayed that no interference is called for by this Court with the order under revision in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, and prayed that the C.R.P. be dismissed. 8. Having heard the learned counsel for the petitioners-plaintiffs and the learned counsel for the respondent-defendant, and in the facts and circumstances of the case, the following question does fall for consideration: Whether the appellate Court, while allowing an application filed under Order XLI Rule 27 C.P.C., for producing additional evidence, having regard to the word “shall" used therein, is mandatorily required to record reasons? 9. Before answering the above question, a few facts, which are not in dispute may be noted. The petitioners filed suit in O.S. No. 1740 of 2007 against the respondent on the file of II Additional Senior Civil Judge, Ranga Reddy District, for perpetual injunction. Along with the suit, they also filed an application in I.A. No. 1522 of 2007, for injunction, which was allowed. Aggrieved thereby, the respondent filed appeal in C.M.A. No. 136 of 2008. While the appeal is pending, the respondent filed the present application in I.A. No. 1116 of 2009, under Order XLI Rule 27 C.P.C, praying to condone the delay in receiving the certified copy of the judgment dated 8-5-2009 in O.S. No. 594 of 2001, passed by the Principal Junior Civil Judge, Ranga Reddy District, and receive the same. The petitioners contested the application by filing counter. However, the Court below by reason of the order impugned in this C.R.P. passed the following docket order: Heard, the delay in receiving the documents is condoned. They are received subject to proof, relevancy and admissibility. 10. Admittedly, the above order is passed by the Court without recording any reasons. Though the above order is passed without recording any reasons, the fact remains, it is conditional, in that the documents are received subject to proof, relevancy and admissibility. They are received subject to proof, relevancy and admissibility. 10. Admittedly, the above order is passed by the Court without recording any reasons. Though the above order is passed without recording any reasons, the fact remains, it is conditional, in that the documents are received subject to proof, relevancy and admissibility. However, according to the petitioners, even though the additional evidence is permitted to be produced subject to conditions, but since the present application, to receive additional evidence, is an application filed under Order XLI Rule 27 CP.C, and having regard to the word "shall" used in Rule 27(2), he contends that it is mandatory on the part of the appellate Court to record reasons, if it feels that receiving of such evidence is necessary, for adjudication of the case. Since the Court below has passed the order, to receive additional evidence, without recording any reasons despite their filing counter and without hearing their counsel, he contends that the same is bad, and the same being opposed to the established judicial process, is liable to be set aside. However, the counsel for the respondent-plaintiff (sic. defendant) contends that the word "shall" used in Rule 27(2) of Order XLI is only directory, and it is not mandatory for the appellate Court to record reasons, and since the appellate Court, in exercise of its discretionary power, has allowed the application for producing additional evidence, no fault can be found with the non-recording of reasons, and more so when the appellate Court, has received the additional evidence, subject to conditions. 11. Though the respondent-defendant contended that the petitioners-plaintiffs should not have any objection to the receiving of the documents because no stay is granted, the fact remains, the counsel for the petitioners-plaintiffs contended that for the present he is not on merits of the matter. This apart, though it is contended by the petitioners-plaintiffs that in spite of their counsel being present, he was not heard, the same is disputed by the respondent defendant, and it is contended that he was heard, and the learned Judge while hearing the application, indicated that he would allow the application. 12. Be that as it may, to consider the rival contentions, it would be appropriate to make a reference to the provisions of Order XLI Rule 27 C.P.C. which deals with production of additional evidence in appellate Court. 12. Be that as it may, to consider the rival contentions, it would be appropriate to make a reference to the provisions of Order XLI Rule 27 C.P.C. which deals with production of additional evidence in appellate Court. The said provision reads as follows: Production of additional evidence in Appellate Court-(I) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) 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 (b) 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. The appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 13. The factors that govern allowing an application filed under Order XLI Rule 27 C.P.C, were considered by a Constitution Bench of the apex Court in K. Venkataramaiah v. Seetharama Reddy (5 supra). The apex Court having considered the provisions of Order XLI Rule 27 C.P.C. (without clause (aa) of Rule 1), and having considered whether the word "shall" used in Rule 27, is mandatory or directory, negatived the stand taken by the petitioners therein that non-recording of reasons in the order, vitiated production of additional evidence, and that such an order was passed mechanically and without applying its mind, and held thus: It is very much to be desired that the Courts of appeal should not overlook the provisions of Cl. (2) of the Rule and should record their reasons for admitting additional evidence. We are not prepared, however, to accept the contention of the appellant that the omission to record the reason vitiates the admission of the evidence. (2) of the Rule and should record their reasons for admitting additional evidence. We are not prepared, however, to accept the contention of the appellant that the omission to record the reason vitiates the admission of the evidence. Clearly, the object of the provision is to keep a dear record of what weighed with the appellate Court in allowing the additional evidence to be produced whether this was done on the ground (i) that the Court appealed from had refused to admit evidence which ought to have been admitted, or (ii) it allowed it because it required it to enable it to pronounce judgment in the appeal or (iii) it allowed this for any other substantial cause. Where a further appeal lies from the decision of the appellate Court such recoding of the reasons is necessary and useful also to the Court of further appeal for deciding whether the discretion under the rule has been judicially exercised by the Court below. The omission to record the reason must therefore be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory. For, it does not seem reasonable to think that the legislature intended that even though in the circumstances of a particular case it could be definitely ascertained from the record, why the appellate Court allowed additional evidence and it is dear that the power was properly exercised within the limitation imposed by the first clause of the Rule all that should be set at naught merely because the provision in the second clause was not complied with. It may be mentioned that as early as 1885 when considering a similar provision in the corresponding section of the Code of 1882, viz., Section 58.6, the High Court of Calcutta held that this provision for recording reasons is merely directory and not imperative. Gopal Singh v. Jhakri Rai, ILR 12 Cal 37. We are aware of no case in which the correctness of this view has been doubted. It is worth noticing that when the 1908 Code was framed and O. 41 R. 27 took the place of the old S. 568, the legislature was content to leave the provision as it was and did not think it necessary to say anything to make the requirement of recoding reasons imperative. It is worth noticing that when the 1908 Code was framed and O. 41 R. 27 took the place of the old S. 568, the legislature was content to leave the provision as it was and did not think it necessary to say anything to make the requirement of recoding reasons imperative. It is true that the word "shall" is used in R.27(2), but that by itself does not make it mandatory. We are therefore of opinion that the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission. (emphasis supplied) 14. A two-Judge Bench of the apex Court in North Eastern Railway Admn. v. Bhagwan Das (4 supra), held that allowing production of additional evidence at the appellate stage is the discretion of the Court, and following the Constitutional Bench judgment of the Apex Court, referred to above, held as follows: Again in K. Venkataramaiah v. A. Seethara11la Reddy (5 supra), a Constitution Bench of this Court while reiterating the aforenoted observations in Parsotim Thankur v. Lal Moha Thakur (AIR 1931 PC 143) pointed out that the appellate Court has the power to allmv 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. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits. 15. In Bahuant Singh v. Darshan Singh (6 supra), a three-Judge Bench of the apex Court held that orders passed under Order XVIII Rule 17-A and Order XLI Rule 27 C.P.C., permitting production of additional evidence being discretionary, no interference is called for therewith by the High Court in exercise of its revisional jurisdiction. 15. In Bahuant Singh v. Darshan Singh (6 supra), a three-Judge Bench of the apex Court held that orders passed under Order XVIII Rule 17-A and Order XLI Rule 27 C.P.C., permitting production of additional evidence being discretionary, no interference is called for therewith by the High Court in exercise of its revisional jurisdiction. Though the learned counsel for the petitioners-plaintiffs relying on the judgment of the Apex Court in Basayya I. Mathad v. Rudrayya S. Mathad (1 supra), submitted that when an application filed under Order XLI Rule 27, is to be allowed, the appellate Court has to record reasons, the fact remains, the two-Judge Bench which rendered the said judgment, did not have the benefit of going through the Constitutional Bench and three-Judge Bench judgments, which held that recording of reasons is not mandatory, and it is the discretion of the Court, whether or not to permit production of additional evidence, and such discretion is used considering the necessity of the documents for pronouncing the judgment; as the same were not placed before it. Therefore, non-recoding of reasons by the appellate Court in the order permitting production of additional evidence, cannot be said to be vitiated. 16. There is no doubt that merely because no prejudice would be caused to the party, cannot be a ground to allow applications filed under Order XVIII Rule 17-A and Order XLI Rule 27 CP.C, and as such, there can be no quarrel on the proposition of law laid dow by the apex Court to that effect in Vadiraj Naggappal Vernekar (dead) through LRs. v. Sharadchandra Prabhakar Gogate (2 supra). But in the instant case, the document which the appellate Court permitted the respondent-defendant to produce, is the certified copy of the judgment and decree dated 8-5-2009 passed in O.S. No. 594 of 2009 by the Principal Junior Civil Judge, Ranga Reddy District. Since it was only certified copy of the judgment, and related to the same subject-property, the appellate Court allowed the application by condoning the delay in receiving and received the same subject to proof, relevancy and admissibility. Since it was only certified copy of the judgment, and related to the same subject-property, the appellate Court allowed the application by condoning the delay in receiving and received the same subject to proof, relevancy and admissibility. Since the documents produced are received by the appellate Court in an appeal filed against an order in an I.A. subject to proof, relevancy and admissibility, the petitioners-plaintiffs, can very well put forth their objections, if any, thereto at the time of hearing of the appeal, and therefore, no exception can be taken to the order passed by the appellate Court, allowing of the present application, and permitting the respondent-defendant, to produce additional evidence, subject to proof, relevancy and admissibility. 17. Hence, I find no reason whatsoever to interfere with the order under revision in exercise of supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 18. The C.R.P. fails, and the same is accordingly dismissed. No costs.