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2013 DIGILAW 422 (GAU)

Abdul Noor v. Katan Bibi

2013-06-17

NISHITENDU CHAUDHURY

body2013
Nishitendu Chaudhury, J. 1. In this review petition notice was issued on 28.02.2012 when Ms. Senapati entered appearance on behalf of the opposite party and as such it was directed that no formal notice need to be issued to them. Thereafter review petition was dismissed for default on 03.09.2012. 2. A Misc case was filed for re-admission of the review petition under Order 41, Rule 19 read with Section 151 of the Code of Civil Procedure along with Misc Case No. 94/13 for condonation of delay in filing the same. Ultimately by an order dated 18.03.2013, passed in Misc Case No. 94/13, the delay in filing the review petition was condoned and the review petition was restored to file vide order dated 18.03.2013 passed in Misc Case No. 93/13 setting aside the dismissal for default. Thereafter, notices were issued to the opposite party and ultimately dasti service was also permitted. The respondent Nos. 1, 2 and 3 refused to accept notice and the same has been brought to the notice of this Court by filing an affidavit by the review petitioner on 11.04.2013. Accordingly, by an order dated 28.05.2013, this review petition has been listed for hearing today. 3. I have heard Mr. B.C. Das, learned senior counsel, assisted by Mr. D.N. Bhattacharjee, learned counsel appearing for the review petitioners. 4. None appears for the opposite party. 5. This review petition has been filed praying for review of the earlier order dated 27.05.2011 passed by this Court thereby setting aside the order dated 15.09.2010 passed by the First Appellate Court in title appeal No. 3/2005. The present review petitioners are the defendants in title suit No. 22/1999. The opposite parties, as plaintiffs, filed the title suit for declaration of their right, title and interest in the suit land and also for khas possession thereof by evicting the defendants. While the plaintiffs claimed title to the land, in question, the defendants staked their claim of right of occupancy tenancy and further asserted that they have become Khatiander under the Assam Temporarily Settled District Tenancy Act 1971. It appears that during the pendency of the suit, two Khatians, namely, Khatians No. 5 and 14 were issued in favour of the defendants on 10.11.2003, which are annexed at page 62 and 69 of the review petition. It appears that during the pendency of the suit, two Khatians, namely, Khatians No. 5 and 14 were issued in favour of the defendants on 10.11.2003, which are annexed at page 62 and 69 of the review petition. By filing the application before the trial court, the defendants wanted to get the same called for and exhibited. However, their prayer was not acceded to. Consequently, a decree was passed against the defendants and they preferred appeal against the decree, wherein one of the grounds was non-consideration of their prayer for calling Khatian No. 5 to be exhibited at the trial stage as a document of tenancy right. The defendants also filed an application under order 41 Rule 27 of the Code of Civil Procedure before the first appellate court praying for leave to prove and exhibit the said two Khatians No. 5 and 14. 6. Mr. Das, learned senior counsel submits that the prayer was made by filing an application dated 03.09.2007, for the first time to the above effect which was not permitted by the learned First Appellate Court and, thereafter, a second application to the same effect was made before the First Appellate Court on 15.03.2008. This time, the learned First Appellate Court felt the necessity of the said two documents for the purpose of proper adjudication of the appeal and accordingly by an order dated 15.09.2010, the application was allowed by observing as follows:- "on examination, it is found that the material documents i.e. order passed by the SO, Cachar & Hailakandi, District Cachar on 17.08.2005 (18.05.2006), similar in Misc. Cancellation of Kaccha Khatian Case No. 2/04-05 the Settlement Officer, Cachar &/contd./3/Hailakandi had passed the order on 22.02.2006 and lastly the deposition of Subodh Ranhan Das was recorded on 14.02.2007 in T.A. No. 4/05 and if the judgment was pronounced on 29th Nov obviously the abovementioned documents (as is mentioned in the schedule of the petition) were not in existence at the relevant period of hearing. Considering the date & year of these documents in order to hold that the appellant who is seeking to produce additional evidence in spite of his due diligence could not produce the same at the time when the decree appealed was passed against him for consideration of the prayer in the petition. Considering the date & year of these documents in order to hold that the appellant who is seeking to produce additional evidence in spite of his due diligence could not produce the same at the time when the decree appealed was passed against him for consideration of the prayer in the petition. Learned advocates for the Respondent side submitted with reference to order passed earlier by the predecessor court that no revision or appeal has been filed against that order and there was clear findings that 3rd R.S. Operation of service has not yet been completed as such no final khatian had been issued is respect of the mentioned khatians and as such provision under Order 41 Rule 27 of CPC is not applicable. This matter as is referred by the Ld. Advocate from the Respondent side can be taken into consideration at the time of hearing of the appeal on merit. Accordingly, I find that the appellant side is to be allowed for production of abovementioned documents as additional evidence in this appeal proceeding. Hence, prayer in the petition is allowed and the petition is disposed of on contest accordingly". 7. The opposite party of this review petition challenged the said order before this Court by CRP No. 476/2010, wherein the order under review was passed on 27.05.2011. 8. The learned senior counsel submits that the findings of this Court in the said order "....the documents, which the opposite parties now seek to take on record were not and could not have been in existence at the time of institution of the suit and trial thereon as well as at the time of filing of the appeal is apparent on record", is not correct. Drawing my attention to Khatians No. 5 and 14, the learned senior counsel has shown that the Khatians were really issued on 10.11.2003, when the suit was pending and as such the finding of this Court that they were not in existence during trial of the suit as well as at the time of filing of the appeal is an error apparent on record. The learned senior counsel has further called my attention to the aforesaid order passed by the First Appellate Court, wherein the First Appellate Court proposed to consider the materials at the time of hearing of the appeal and submits that an application under Order 41 Rule 27 cannot be considered in isolation. Referring to the judgments of the Hon'ble Supreme Court in the case of Union of India vs. Ibrahim Uddin, reported in (2012) 8 SCC 148 (paragraph 52), and State of Rajasthan vs. T.N. Sahan, reported in (2001) 10 SCC 619 and also N.E. Railway Administration vs. Bhanwan Das, reported in (2008) 8 SCC 511 learned Senior Counsel asserts that an application under Order 41 Rule 27has to be considered while hearing the appeal on merit and at that time only the appellate court can satisfy objectively as to whether the documents, in question, are really necessary for proper adjudication of the appeal. 9. The learned senior counsel further submits that it would appear from the order of the First Appellate Court, which was challenged in CRP No. 476/2010, that the First Appellate Court really proposed to consider the application and documents at the time of hearing of the appeal on merit. Although the subsequent sub-paragraph of the application was said to have been allowed, it would not have been strictly in accordance with law and as such it would have been in the fitness of things to maintain the first paragraph of the order and to set aside the remaining part of the order directing the First Appellate Court to consider the application under order 41 Rule 27 of the code of Civil Procedure for considering Khatians No. 5 and 14 at the time of hearing of the appeal. If in course of hearing of the appeal the First Appellate Court found that the said documents were really necessary for proper adjudication of the appeal, the First Appellate Court would have been at liberty to get the same exhibited in accordance with law. With this submission, the learned senior counsel asserts that the earlier order of this Court requires review. 10. It appears that the consistent view of the Hon'ble Supreme Court in regard to taking recourse to order 41 Rule 27 of Civil Procedure is that [the necessity for evidence at the appellate stage can be considered only at the time the appeal is heard on merit. 10. It appears that the consistent view of the Hon'ble Supreme Court in regard to taking recourse to order 41 Rule 27 of Civil Procedure is that [the necessity for evidence at the appellate stage can be considered only at the time the appeal is heard on merit. The said documents, namely, Khatians No. 5 and 14 have been brought on record already by way of filing application under order 41 Rule 27 CPC. But the same have not been formally exhibited for which prayer under order 41 Rule 27 CPC was made and, therefore, the First Appellate Court will have to arrive at a finding, on perusal of the said documents while hearing the claim of the defendants in regard to right of occupancy tenancy, as to whether this documents are to be formally admitted into records or not.] It is the case of the defendants-appellants that their main prayer was for bringing these documents on record, even during the trial stage, but it is not considered by the trial court resulting in prejudice to them and the same has been taken as a ground of the appeal under Section 105 of CPC. Otherwise also it was the duty of the First Appellate Court to consider as to whether the decision of the learned trial court in not permitting the said documents to be brought on record was correct or not. [By now it is settled that the civil court is duty bound to make necessary enquiry for arriving at the bottom of the dispute to unearth the truth and for that purpose the civil court should frequently take recourse to exercise of power under Section 30 of the CPC] Even the Hon'ble Supreme Court has held in the case of Maria Margarida Sequeria Fernandes reported in (2012) 5 SCC 370 that [the provision of Section 30 is not being put to use by the learned civil Courts and they should frequently take recourse to this section.] In this view of the matter, while the appeal shall be heard on merit, if the First Appellate Court finds that such prayer for calling Khatian Nos. 5 and 14 were really made by the defendants to prove their claim of occupancy tenancy and the trial Court did not accede to the prayer, definitely there was a failure on the part of the learned trial court in not exercising the power conferred under Section 30 of the CPC. The said job for the First Appellate Court has been rendered easier by the defendants themselves by filing an application under order 41 Rule 27 of the Code of Civil Procedure. In this view of the matter, I find that the order dated 27.05.2011 passed by this Court in CRP No. 476/2010 needs review and accordingly the same is reviewed. It appears that the said Khatians No. 5 and 14 were very much in existence when the suit was being tried and the appeal was being preferred. There is a scope for the First Appellate Court to consider as to whether power under Section 41 Rule 27(A)(aa) or even B of the Code of Civil Procedure should be exercised or not at the time of hearing the appeal on merit and, in so doing, the learned First Appellate Court shall keep the observation made in this order in view. This review petition is allowed. No order is to costs.