Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 262 (CAL)

Musst Gobeda Khatoon v. Sk. Rafikuddin

2012-03-28

TAPAN KUMAR DUTT

body2012
JUDGMENT Tapan Kumar Dutt, J. 1. This Court has heard the learned Advocates for the respective parties. The facts of the case, very briefly, are as follows: The predecessor-in-interest of the plaintiffs-appellants filed a suit for partition against the defendants-respondents and the pro-forma respondents. The said suit was contested by the defendant Nos. 1 to 4 and 8 to 12 by filing written statement, as would appear from the judgment of the learned Trial Court itself. The original plaintiff claimed to have right, title and interest in respect of the schedule 'B' of the plaint. The aforesaid defendants disputed such claim of the plaintiff and it was their case that the plaintiffs did not legally derive any right, title and interest in the said property. It was alleged by the said defendants that the defendant No. 4 is the absolute owner of the 'B' schedule property. The plaintiff's case was that the plaintiff is the owner of 18-1/3 cents of land as described in the schedule 'B' of the plaint which was disputed by the defendants. The learned Trial Court by its judgment and decree decreed the said suit in preliminary form by declaring the plaintiffs right, title and interest in the schedule 'B' property described in the plaint and the parties were directed to effect amicable partition by metes and bounds. It was further ordered by the learned Trial Court that in default, the parties will be at liberty to make an application before the learned Court for appointment of a Commissioner to effect such partition. 2. Challenging the aforesaid judgment and decree passed by the learned Trial Court, the defendants-respondents filed Title Appeal No. 110 of 1988 which was placed before the learned Additional District Judge, 1st Court, Alipore, District South 24-Parganas. It appears that in the said Title Appeal the defendants had filed an application under Order 41 Rule 27 of the Code of Civil Procedure whereby they intended to adduce in evidence two original Kobalas dated 30.4.1958 and 6.5.1958 originally executed by one Jamila Bewa as additional evidence. It appears that in the said Title Appeal the defendants had filed an application under Order 41 Rule 27 of the Code of Civil Procedure whereby they intended to adduce in evidence two original Kobalas dated 30.4.1958 and 6.5.1958 originally executed by one Jamila Bewa as additional evidence. The learned Lower Appellate Court by the impugned judgment and decree allowed the said application under Order 41 Rule 27 of the Code of Civil Procedure and directed the learned Trial Court to mark the said documents as exhibits and remanded the said matter back to the learned Trial Court after setting aside the judgment and decree passed by the learned Trial Court. The learned Lower Appellate Court directed the learned Trial Court to consider the aforesaid two documents as additional evidence along with other evidence on record and pass a judgment accordingly. 3. The learned Advocate appearing on behalf of the plaintiffs-appellants quite rightly submitted that the learned Lower Appellate Court has not assigned any reason whatsoever while allowing the application under Order 41 Rule 27 of the Code of Civil Procedure. The said learned Advocate submitted that the learned Lower Appellate Court has not even discussed in its judgment with regard to the merits, if any, of the application under Order 41 Rule 27 of the Code of Civil Procedure. He further submitted that the learned Lower Appellate Court has not also recorded its satisfaction as to whether or not the defendants-respondents were really prevented by sufficient cause from adducing such evidence at the time when the trial took place in the suit. The said learned Advocate further submitted that if at all there was any reason to admit the aforesaid two documents as additional evidence in the Title Appeal, the learned Lower Appellate Court itself could have decided the matter finally after considering the aforesaid two documents as additional evidence along with other evidence on record and disposed of the appeal itself on merits. 4. The learned Advocate appearing on behalf of the defendants-respondents submitted that it cannot be disputed that no reason has been assigned by the learned Lower Appellate Court but the learned Lower Appellate Court was entitled to admit the aforesaid additional evidence. 4. The learned Advocate appearing on behalf of the defendants-respondents submitted that it cannot be disputed that no reason has been assigned by the learned Lower Appellate Court but the learned Lower Appellate Court was entitled to admit the aforesaid additional evidence. The said learned Advocate submitted that no harm has been caused to the plaintiffs as the matter will now be decided by the learned Trial Court after taking into consideration all the materials on record including the additional evidence. 5. This Court is unable to accept the submissions made by the learned Advocate for the defendants-respondents. The learned Advocate for the plaintiffs-appellants is quite justified in submitting that the impugned judgment and decree should be set aside on the ground that no reason has been assigned by the learned Lower Appellate Court. The provisions of Order 41 Rule 27(2) of the Code of Civil Procedure stipulates that wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. Perusing the impugned judgment it appears to this Court that no such reason has been assigned whatsoever. It thus indicates that the impugned judgment suffers from non-application of mind. That apart, if the learned Lower Appellate Court was satisfied with regard to the merits of the application under Order 41 Rule 27 of the Code of Civil Procedure and had recorded reasons for admitting the additional evidence, the learned Lower Appellate Court could itself have disposed of the matter on merits finally without remanding the matter unnecessarily to the learned Trial Court. 6. This Court is, however, not making any observation with regard to the merits of the application under Order 41 Rule 27 of the Code of Civil Procedure at this stage since this Court proposes to send the matter back to the learned Lower Appellate Court for consideration of the said application on its merits. 7. In view of the discussions made above, the present appeal is disposed of by setting aside the judgment and decree passed by the learned Lower Appellate Court and the matter is sent back to the learned Lower Appellate Court with the request that the learned Lower Appellate Court shall now hear out the application under Order 41 Rule 27 of the Code of Civil Procedure on its merits and dispose of the said application by passing a reasoned order. The hearing of the application under Order 41 Rule 27 of the Code of Civil Procedure will have to be done along with the hearing of the appeal itself and if the learned Lower Appellate Court comes to the conclusion, for proper reasons, that the aforesaid additional evidence on behalf of the defendants-respondents should be admitted/in that event the learned Lower Appellate Court itself may consider the materials on record including the additional evidence and dispose of the entire appeal on its merits. Considering the fact that the impugned judgment is of the year 1990, the learned Lower Appellate Court shall now try to dispose of the matter as early as possible without granting any unnecessary adjournment to any of the parties. Urgent certified xerox copy of this judgment, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.