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2012 DIGILAW 336 (PAT)

Babina Devi W/O Manoj Thakur v. Rubi Devi W/O Subhash Prasad

2012-02-27

SHIVAJI PANDEY

body2012
JUDGMENT Heard the learned counsel for the petitioner and the learned counsel for the respondent. 2. In this case, petitioner is Defendant-Appellant challenging the order dated 10th June 2011 by which the application filed before the appellate court for additional evidence has been rejected on the ground that the issue was raised in the trial court and the same was rejected and the same was not challenged in the higher court. 3. A partition suit was filed by the plaintiff-respondent against the defendant-petitioner in which she claims to be adoptged daughter of Bindeshwari Rai. The facts of this case is that one Bindeshwari Rai had two wives, one Ramrathi Devi and Sundeshwari Rai and he died on 23rd January 1998 without any issue from either of his two wives. It has been averred by the plaintiff in the plaint that Rubi Devi who was niece of Sundeshwari Devi was adopted by Bindeshwar Rai and she remained with the family and at different places, in place of natural father, Bindeshwar Rai has given his name as her father and, accordingly, claimed that she is adopted daughter of Bindeshwar Rai, whereas Ramrathi Devi who had also no issue, transferred and gifted the property in favour of Rubi Devi, her niece and, as such she is also claiming title over the property. 4. One of the issues raised in the partition is whether Rubi Devi is adopted daughter of Bindeshwari Rai or not. In support of the claim from the side of Rubi Devi, number of documents were filed and one of the documents was the School Leaving Certificate issued by Rajkiya Prathmik Vidyalaya, Kali Sthan, Anandpur (Morwa), Samastipur. The petitioner of the present case has challenged that no such School in the name as aforesaid is existing in the locality, rather the name of Rajkiya Prathmik Vidyalaya, Anandpur, West Morwa, Samastipur is the School which is in existence. There name of Rubi Devi has been enrolled in which her father’s name has been shown as Chandeshwar Shukla, being her natural father. The petitioner has claimed that this is the clinching evidence to show the fact that Rubi was never adopted by Bindeshwari Rai whereas counsel for the other side states that there are large number of other evidences, including S.L.C. which show that she was adopted by Bindeshwari Rai. The suit was decided in favour of Rubi Devi and against Babina Devi. The suit was decided in favour of Rubi Devi and against Babina Devi. 5. An appeal was filed vide T.A.No. 95 of 2007. At the appellate stage, petitioner filed an application stating that the School Admission Register lying in the School of Rajkiya Prathmik Vidyalaya, Anandpur, West Morwa (Samastipur), be called for and the court below has wrongly refused to call for that document. It is submitted that if this document would have been called by the learned trial court, the issue with regard to adoption would have automatically been decided. The appellate court, considering the claim of the petitioner of the present case, has refused to call for the School Admission Register on the ground that as the trial court has refused to call for the aforesaid document which was never challenged before the higher authority, as such, he cannot be allowed to call for aforesaid document at the appellate stage and, accordingly, the petition was rejected which is under challenge before this Court. 6. Learned counsel for the petitioner submits that as the appellate court has wrongly recorded that the petition was rejected, the fact is that that petition remained pending though the exhibits were marked with objection. 7. Learned counsel for the respondent has submitted that the court below has rightly refused to call for the document as the petitioner ought to have moved before the higher court, if he was aggrieved by the order and the appellate court has rightly refused to call for the document. On contra, petitioner has claimed that she has raised one of the grounds in memo of appeal and the learned court has wrongly rejected the application to call for documents to be used as an additional evidence. 8. In order to decide the issue of additional evidence, it is better to examine the ground upon which the appellate court can call for the document as additional evidence. For proper appreciation, it is relevant to quote Order 41 Rule 27 of the C.P.C. which is as follows: O.41,R.37: Production of additional evidence in Appellate Court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. For proper appreciation, it is relevant to quote Order 41 Rule 27 of the C.P.C. which is as follows: O.41,R.37: Production of additional evidence in Appellate Court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if – (a) theCourt 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 produced by him at the time when the decree appealed against was passed,or (b) the Appellate Court requires any documenttobe roduced 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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 9. Learned counsel for the petitioner submits that his case is covered by clause(a) and in support of their claims, both the parties have relied on different judgments of the Hon’ble Supreme Court and of this Court. 10. Learned counsel for the petitioner, in support of his submission relied on a judgment reported in AIR 1928 Pat.113 (Gokhul Pande v. Baldeo Sukul) where the court has said as follows: “…It is quite clear from the record of the learned Sub-ordinate Judge, that the evidence for some reason was rejected and it has been stated by the learned Vakil for the respondents in this case that one of the grounds in this appeal before the learned District Judge was that evidence had been wrongly rejected. Now if that be the true facts of the case, I think quite clearly the evidence was admissible under Order 41 Rule 27, sub-clause(a)”. 11. In another judgment of the Hon’ble Supreme Court reported in AIR 1974 SC 2069 (Official Liquidator v. R. Desikachar) at Para-5, the Court has considered under what circumstances the appellate court can call for the documents as additional evidence. The Court has decided that if the trial court has improperly refused to admit evidence or where the appellate court requires additional evidence to be recorded in order to enable it to pronounce judgment, that it can make such an order. The Court has decided that if the trial court has improperly refused to admit evidence or where the appellate court requires additional evidence to be recorded in order to enable it to pronounce judgment, that it can make such an order. Under order 41 Rule 27 (b), the court may require additional evidence either to enable it to pronounce the judgment or it may require additional evidence to be recorded for any other substantial cause. It further held that the legitimate occasion for admitting additional evidence in appeal is when on examining the evidence as it stands some inherent lacuna or defect becomes apparent, not where a discovery is made outside the court, of fresh evidence, and an application is made to appellate court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced. The Hon’ble Supreme Court while dealing with power of appellate court under Order 41 Rule 27(1)(a) has held as follows: “This argument, however ignores the provisions of O.41 R.27 (1) (a) under which an Appellate Court can direct additional evidence to be recorded if the Trial Court had refused to allow or declined to record evidence which the party against whom the decree had been passed was prepared to produce before it. What we must, therefore, see is whether the District Judge had improperly rejected the request to record the evidence of the respondents and consequently whether the High Court was justified in directing additional evidence to be recorded. On a perusal of the record, we have no doubt that the District Judge had improperly rejected the prayer of the respondents that they should be allowed to lead evidence in connection with the charges mentioned in the application filed by the Official Liquidator and that they should be allowed to cross-examine respondent 5.” 12. Learned counsel for the petitioner has also relied on the judgment reported in 2010(2) PLJR 850 Para-8 “It is contended by learned counsel that both under Order 41 Rule 27 as also under Order 47 Rule 1 C.P.C., if new and important matter of evidence has been discovered which even after the exercise of due diligence was not within the knowledge or could not be produced by the party concerned when a decree was passed or an order was made such evidence or document should be allowed to be produced. Learned counsel submits that the information under R.T.I. Act was obtained in this regard by the respondents on 1.8.2008, which is after the passing of previous order dated 17.5.2008 and much after the decree of the suit in the year 2002. It is, thus, submitted by learned counsel that the impugned order dated 1.5.2009 satisfies the requirement of both Order 41 Rule 27 and Order 47 Rule 1 C.P.C. and accordingly ought not to be interfered with. Para-9 On a consideration of the submissions of learned counsel for the parties, I find sufficient force in the submissions of learned counsel for the respondents. It is evidence that though the respondents had earlier filed an application under Order 41 Rule 27 C.P.C., but it was rejected by order dated 17.5.2008. The rejection of the said application was merely on the ground that they could not satisfy the Court that the same was not merely a fishing enquiry, rather an evidence which would have a serious bearing upon the fair and just decision of the case. In the said circumstances, the appellate court below could not be satisfied enough to interfere with the matter by permitting the respondents to lead additional evidence under Order 41 Rule 27 C.P.C. However, there was a drastic change in the situation after the information dated 1.8.2008 was obtained from the relevant Government Office which shows that the original plaintiff No. 2 had joined Government service in the year 1948, which is contrary not only to the statements made in the plaint but also the case laid before the learned trial court. The evidence, thus, acquires a serious importance if justice is to be done between the parties and is not merely an attempt to fill up the lacuna in the case of the respondents.” 13. The evidence, thus, acquires a serious importance if justice is to be done between the parties and is not merely an attempt to fill up the lacuna in the case of the respondents.” 13. Petitioner has also relied on (2009) 17 SCC 674 (Kores (India) Ltd. V. Bank of Maharashtra) (Para 17) where the Hon’ble Supreme Court has held that a litigant is not bound to appeal against every interlocutory order passed against him, he can wait until the final order is passed and in appeal against that final order challenge all orders leading to the final order and affecting that decision and while pronouncing this judgment, has relied on privy Council in Moheshur Sing v. Bengal Govt.[(1959)7 MIA 283] further held as follows: “…We are not aware of any law or regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory order by which he may conceive himself aggrieved, under the penalty, if he does not so do, of forfeiting forever the benefit of the consideration of the appellate court. No authority or precedent has been cited in support of such a proposition, and we cannot conceive that anything would be more detrimental to the expeditious administration of justice than the establishment of a rule which would impose up-on the suitor the necessity of so appealing; whereby on the one hand he might be harassed with endless expense and delay and on the other inflict upon his opponent similar calamities.” 14. Learned counsel for the respondent has relied on the judgment reported in 2008(3) PLJR 337(SC): (2007)13 SCC 293 (Soni Dineshbhai Manilal .v. Jagjiwan Mulchand Chokshi) in which the Hon’ble Supreme Court has said that if the person wants to call the documents as additional document at the appellate stage, when it was refused by the trial court, the parties will have to make a ground specifically in the memo of appeal. If the ground has been taken in the Memo of appeal, only then the court can, for ends of justice, exercise power under Order 41 Rule 27(1)(a) C.P.C. and not otherwise. 15. If the ground has been taken in the Memo of appeal, only then the court can, for ends of justice, exercise power under Order 41 Rule 27(1)(a) C.P.C. and not otherwise. 15. In another judgment of the Hon’ble Supreme Court reported in 2004(3) PLJR 52 (SC) (Jayaramdas & Sons v. Mirza Raftullah Baig) the Hon’ble Supreme Court has considered the aspect of the matter that in the appellate stage some admitted document has transpired which is just contrary to the documents which was exhibited in the trial court. While deciding the issue the Court held that 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 Appellate Court. The case of the appellants for production of additional evidence falls within clause (aa) of Sub-rule(1), above said. It would have been better if such ground was set out specially 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 the appellants’ application.” . 16. In view of this proposition of the Hon’ble Supreme Court and this court is apparent that following factors are relevant, first that the document must have been called for in the trial court which was refused and in the appeal, the appellant must take one of the grounds in the memo of appeal claiming that the trial court has wrongly exercised power in refusing to call for the document as an evidence. It is apparent from the proposition law, it is not required for the appellant to challenge every interlocutory order and he will have the liberty at the appellate stage that he can call for documents refused by trial court when he has taken one of the grounds in the Memo of appeal specifically and the document called for is in the nature of substantial evidence.. 17. 17. In the present case it is apparent that the court below has merely rejected the application on the ground that the application was filed before the trial court which was rejected and the same was never challenged in the higher court and on that score, the application under Order 41 Rule 27 C.P.C. was rejected. But in view of the judgment of the Hon’ble Supreme Court, the appellate court has fallen in error in stead of rejecting the application on this ground the court below ought to have examined as to whether the petitioner has taken as one of the grounds in the Memo of appeal raising the grievance that the trial court has wrongly refused to call for the document and it was also required to see whether any substantial injustice was caused to the appellant in refusing to call for the particular document but the court below in stead of examining the issue in right perspective has committed an error and in this view of the matter the order dated 16th June 2011 is quashed and the matter is remanded back to the court below for deciding the issue afresh in accordance with the principle decided hereinabove. However, this Court is not giving any opinion on the merits of the case. 18. The petition is, accordingly, allowed to the extent indicated above.