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Jharkhand High Court · body

2012 DIGILAW 1649 (JHR)

Bharat Coking Coal Ltd. Dhanbad v. Savitri Pandey

2012-11-24

P.P.BHATT

body2012
Judgment The present petition is filed against the order dated 14.5.2012 passed by the learned District Judge-II Dhanbad in Misc Appeal No. 194 of 2010 whereby the petition dated 24.1.2012 filed to call for original document from the CMPF office and the petition dated 27.2.2012 filed under order 1 Rule 10(2) and under Order 41 Rule 27 of the Code of Civil Procedure have been rejected. 2. The learned counsel appearing for the petitioner by referring the impugned order submitted that the court below has failed to appreciate the provision contained in order 41 Rule 27 of the Code of Civil Procedure in its proper perspective and thereby committed an error while rejecting the application preferred by the present petitioner. The learned counsel appearing for the petitioner by referring the application (Annexure-2) submitted by the petitioner pointed out that the facts were narrated in the application, wherein it was stated that initially land was acquired by the State Government for C.M.L.W.O and possession of the same was taken by the representative of the said organization in the year 1955 and certificate to that effect was also given by the authority and all these papers are on the record and marked as Exhibits by the E.O. and subsequently under the provisions of law C.M.L.W.O merged with B.C.C.L. in the year 1986. According to the petitioner, efforts were made to obtain the relevant copies of the documents from C.M.L.W.O but they supplied the attested copies only to the BCCL and therefore, they could not produce the original one during course of trial. Therefore, by way of submitting this application the petitioner has prayed for production of original documents which are in possession of C.M.P.F. The learned counsel appearing for the petitioner has also submitted that by way of producing another application filed under order 1 rule 10(2) and under order 41 rule 27 CPC, request was made for impleading C.M.P.F and others as party respondents in the appeal but the appellate court also rejected the said prayer. The learned counsel for the petitioner by referring order 41 Rule 27 of the CPC pointed out that the said provision contained in order 41 Rule 27 of the CPC is required to be read in this context with clause (aa) and (b). The learned counsel for the petitioner by referring order 41 Rule 27 of the CPC pointed out that the said provision contained in order 41 Rule 27 of the CPC is required to be read in this context with clause (aa) and (b). It is also submitted that the documents in question are necessary for the purpose of determining the issues involved in the matter and it will also help for pronouncement of the judgment by the court below. The learned counsel appearing for the petitioner has also referred to and relied upon the following Judgments in respect of his arguments.- 2010(8) SCC page 423 2004(10) SCC Page 507 2008(8) SCC Page 511 2008(12) SCC Page 739 The learned counsel appearing for the petitioner by referring the above mentioned judgments, particularly 2010(8) SCC 423 pointed out that ratio laid down in the aforesaid judgment is applicable to the facts and circumstances of the present case. The learned counsel for the petitioner submitted that facts and circumstances of judgment reported in 2010(8) SCC 423 are almost similar to the present case by referring paragraphs 12,15 and 16. Likewise the learned counsel for the petitioner has also referred to and relied upon the paragraphs 8 and 9 of judgment reported in 2004(10)SCC page 507. 3. As against that, the learned counsel appearing for the respondent while supporting the impugned order passed by the court below submitted that the learned court below has not committed any error while rejecting the application made by the petitioner under order 41 Rule 27 of the Code of Civil Procedure. The learned counsel appearing for the respondent submitted that the petitioner cannot be permitted to fill up lacuna by production of additional evidence at the appellate stage. It is further submitted that the matter was at argument stage and the question of evidentiary value of exhibited documents is still required to be considered by the appellate court and therefore, the impugned order passed by the court below is sustainable in the eye of law. It is further submitted that the matter was at argument stage and the question of evidentiary value of exhibited documents is still required to be considered by the appellate court and therefore, the impugned order passed by the court below is sustainable in the eye of law. It is further submitted that the court below has taken note of arguments advanced by the respective parties wherein it is clearly observed that before commencement of hearing of this appeal the appellant filed a petition under order XI rule 12 and 14 CPC seeking an order directing the respondent to make discovery and production of the original documents, xerox copies of which were filed before the court below, but the respondent stated that all the relevant documents are on record and therefore, they cannot be permitted to produce the original document which were objected by them even at the appellate stage. The learned counsel appearing for the respondent by referring the application submitted by the present petitioner before the appellate court pointed out that the averments made in paragraphs 4,5,6 and 12 are inconsistent with each other. The learned counsel for the respondent submitted that the petitioner had not produced any supporting documents or evidence in support of the averments made in paragraph 12 of the said application. It is further submitted that attempt of due diligence under order 41 rule 27 of CPC mentioned in clause 1(aa) has not been satisfied in the instant case and therefore, the court below rightly rejected the application made by the petitioner. It is further submitted that C.M.L.W.O merged into B.C.C.L long back and therefore the said averments made by the present petitioner that they were not aware about the documents and also they are not in custody of the original documents, cannot be believed and the petitioner had not given satisfactory explanation as to why these document were not produced at the relevant point of time. The learned counsel appearing for the respondents in support of his submissions has also referred to and relied upon the following judgments : AIR 1965(S.C) 1008 (2007)14 S.C.C 257 (2004)10 S.C C779 (2008) 3 S.C.C. 120 By referring the aforementioned judgments the learned counsel appearing for the respondent submitted that as per ratio laid in these judgments the petition filed by the petitioner deserves to be dismissed. 4. 4. Considering the aforesaid arguments advanced by the learned counsel for the parties and on perusal of the impugned order and also other materials produced on record including the application preferred by the present petitioner before the Appellate court under order 41 rule 27 of the Code of Civil Procedure it transpires that the prayer was made by the petitioner before the appellate court for impleading C.M.P.F and others as party respondents and also production of additional evidence in the form of original documents of Land Acquisition proceeding have been rejected. It appears that attested copies of the said documents were already produced on record during course of trial and the said documents have been exihibited by the Estate Officer who was appointed under Public Premises(Eviction and Unauthorized Occupants)Act 1971. On perusal of the impugned order it appears that the court below while rejecting the application filed under order 41 rule 27 observed that the attempt made by the present petitioner to lead the additional evidence in appellate stage cannot be allowed to fill up the lacuna and therefore, this observation is likely to affect the case of the present petitioner on merit at the time of final adjudication of appeal. While considering the application under order 41 rule 27 of the CPC the court below is required to consider the case from angle as to whether the original documents, for which production as sought for, is necessary for the purpose of pronouncement of judgment in the light of the provision contained in order 41 rule 27 of CPC along with provision contained in clause 1(aa). 5. Provision contained in order 41 rule 27 is reproduced herein below for the purpose of determining the issues involved in the present petition:- “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. 5. Provision contained in order 41 rule 27 is reproduced herein below for the purpose of determining the issues involved in the present petition:- “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 . 6. In this context judgments, which have been referred to and relied upon by the learned counsel appearing for the parties, are required to be seen. A Judgment reported in 2010(8) SCC 423 cited by the learned counsel appearing for the petitioner appears to be relevant for the purpose of determination of issues involved in the present petition. Paragraphs 12, 15 and 16 of the said judgment appears to be very relevant for the purpose of determination of issues involved in the present petition and same are reproduced : “12 Mr. Rao further submitted that the very narrow view of order 41 rule 27 taken by the Division Bench has only laid to frustrate the ends of justice. In order to land strength to his submission, Mr. Rao referred to the illuminating and perennially relevant passage from the judgment of Vivian Bose, J in Sangram Singh V. Election Tribunal(AIR P.429,para 16) “16. Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further ends: not a panel enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against(provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.” “15. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against(provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.” “15. On a careful consideration of the whole matter, we feel that serious mistakes where committed in the case at all stages. The trial court should not have “marked” as exhibited that xerox copies of the certificates of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence and left the plaintiff to support its case by whatever means it proposed rather than leaving the issue of admissibility of those copies open and hanging,by marking them as exhibits subject to objection of proof and admissibility. The appellant, therefore, had a legitimate grievance in appeal about the way the trial proceeded.” “16. The learned Single judge rightly allowed the appellants plea for production of the original certificate of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause(b) of order 41 rule 27. But then the single judge seriously erred in proceeding simultaneously to allow the appeal and not giving the respondent-defendants an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence”. Likewise the judgment reported in 2004(10) SCC 507 also relevant for the purpose of deciding the present case wherein it is held in paras 8, 9 and 10 :- “8. It is true that additional evidence, whether oral or documentary, is not to be admitted in appellate court unless a case for admission thereof is made out by reference to clause (a) or (aa) of sub-rule(1) of Rule 27 or unless the appellate court requires such evidence to enable it to pronounce judgment or for any other substantial cause within the meaning of clause (b). A perusal of the documents brought to our notice by the learned counsel for the appellants and their comparison with the documents already available on record, clearly goes to show that the two are at variance and the effect of such variance determined either way would have a material bearing on the crucial issue arising for decisions between the parties. “9. “9. As already pointed out , both the sets of documents are certified copies of public documents. The appellants would not ordinarily suspect or doubt the documents where the certified copies of public documents were secured from the public officer having the custody of such public documents. It is only when it came to their knowledge that the certified copies were at variance with the originals or were not complete copies that they thought of securing another set of certified copies and then seeking leave of the court for producing the certified copies obtained by them as an additional evidence in the appellate court . The case of the appellants for production of additional evidence falls within the clause(aa) of sub-rule(1), above said. It would have been better if such ground was set out specifically in the application so that the opposite party could have had an opportunity of meeting the plea and the first appellate court could also have had the provisions of clause(aa) of sub-rule(1) in its mind for dealing with appellants' application. However,still we feel that the ends of justice demand the additional evidence being allowed to be produced dehors the deficiency in the application filed by the appellants. 10. The appeal is allowed. The judgments and decrees passed by the High Court and the first appellate court are set aside. The two documents, filed by the appellants in this court,shall be forwarded by the registrar( judicial) of this court to the first appellate court in a sealed cover. The documents shall be admitted in evidence by the first appellate court,subject to payment of Rs.5000/-by way of costs by the appellants. The first appellate court shall after permitting the production of such two documents by way of additional evidence,proceed to hear and decide the appeal afresh and in accordance with law.” Another two judgments reported in 2008(8) SCC 511 and 2008(12) SCC 739 cited by the learned counsel appearing for the petitioner are also relevant for the purpose of deciding the present case, para 20 of 2008(8)SCC511 read as under. “20. In any event, had the Court found the additional documents, sought to be admitted, necessary to pronounce the judgment in the appeal, in a more satisfactory manner, it would have allowed the application and, if not, the application would have been dismissed. Nonetheless, it was bound to consider the application before taking up the appeal. “20. In any event, had the Court found the additional documents, sought to be admitted, necessary to pronounce the judgment in the appeal, in a more satisfactory manner, it would have allowed the application and, if not, the application would have been dismissed. Nonetheless, it was bound to consider the application before taking up the appeal. We say no more at this stage, as the aforementioned applications are yet to be considered by the High Court on merits in this light of the legal position, briefly set out herein above. In view of the afore noted factual scenario, we are of the opinion that the impugned judgment and the orders are erroneous and cannot be sustained.” 7. The present case is squarely covered by the decision of the Hon'ble Apex Court reported in 2010(8) SCC 423 and the said judgment is also applicable to the facts and circumstances of the present case. 8. So far as judgments, which have been referred to and relied upon by the learned counsel appearing for the respondents, more particularly reported in AIR 1965(S.C) 1008 are concerned, the same is not applicable to the facts and circumstances of the present case as in the said case by way of additional evidence attempt was made to put up new case and therefore the Hon'ble Apex Court has taken view that it will lead to fresh trial , which is not the case here. 9. In the present case attested copies are on the record and the petitioner by way of filing the application wants to produce the original one and therefore, there is no question of putting up new case which requires fresh trial. 10. I have also perused the other judgments cited by the learned counsel for the respondents reported in AIR 1965 (S.C) 1008 (2007) 14 SCC 257 , (2004)10 SCC 779 and(2008) 3 SCCC 120.The said judgments do not help to the respondent's case in the light of the facts and circumstances of the present case discussed above and also ratio laid down by the Hon'ble Apex Court in its various judgment discussed above. 11. This court is of the view that the impugned order is required to be quashed and set aside partly with regard to rejection of the application filed under Order 41 Rule 27 CPC for production of additional documents. 11. This court is of the view that the impugned order is required to be quashed and set aside partly with regard to rejection of the application filed under Order 41 Rule 27 CPC for production of additional documents. So far as the prayer with regard to impleading C.M.P.F and Others are concerned, view taken by the court below appears to be just and proper and therefore, order passed by the court below in this regard is not required to be disturbed. 12. This court is of the view of that no harm or prejudice is likely to be caused to the other side if the prayer of the present petitioner with regard to production of additional documents is allowed as the attested copies were already on record therefore, this petition is allowed in part and the impugned order dated 14.5.2012 is set aside partly as indicated above. Petition partly allowed.