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2014 DIGILAW 2149 (RAJ)

Chetan Swaroop v. Narsingh Das

2014-12-17

ALOK SHARMA

body2014
JUDGMENT 1. - This petition has been filed against the judgment dated 24.03.2014, passed by the Board of Revenue, Ajmer (hereinafter 'the Board") whereby the petitioner's appeal against the order dated 23.02.2011, passed by the Divisional Commissioner, Ajmer against the Jamabandi entries made in respect of land in dispute on 09.01.1976 was dismissed. 2. Mr. R.K. Goyal, appearing for the petitioner has drawn the attention of this Court to the Board's order-sheet dated 24.02.2014 whereby the Board while reserving the judgment in the petitioner's appeal allowed the parties to file additional documents. It has been submitted that aside of the merit of the impugned judgment dated 24.03.2014, the procedure adopted by the Board in taking on record the documents filed by the respondent No.1 under Order 41, Rule 27 CPC subsequent to the reserving of judgment in the appeal was contrary to the law laid down by this Court in the case of Raj Kumar Ajmani v. U.B.I. & Anr., SB Civil Revision Petition No.502/1994, decided on 12.12.1994. Counsel has submitted that aside of the above, the Board accepted the application filed by the respondent No.1 under Order 41, Rule 27 CPC along with 49 documents without as much as giving an opportunity of rebuttal to the petitioner as the appellant before the Board. Reference has been made to the judgment of the Hon'ble Supreme Court in the case of The Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H. Narayanaiah etc. [ AIR 1976 SC 2403 ] wherein it has been held that it is incumbent upon the appellate authority/court allowing an application under Order 41, Rule 27 CPC to state reasons therefor to show as to why the admission of such documents/evidence at the appellate stage was necessary for the decision of the appeal. It was further held by the Hon'ble Apex Court that even if it is found that the additional evidence under Order 41, Rule 27 CPC was necessary to be admitted, an opportunity has to be given to the opposite party to rebut such additional evidence by leading evidence in rebuttal. It was further held by the Hon'ble Apex Court that even if it is found that the additional evidence under Order 41, Rule 27 CPC was necessary to be admitted, an opportunity has to be given to the opposite party to rebut such additional evidence by leading evidence in rebuttal. Counsel for the petitioner submitted that acceptance of the application filed by the respondent No.1 under Order 41, Rule 27 CPC subsequent to the judgment being reserved on 24.02.2014 and not allowing the appellant to rebut the said evidence vitiates the entire judgment of the Board and the same is liable to be quashed and set aside. 3. Mr. R.K. Mathur, Sr. Advocate appearing with Mr. Ashok Kumar Mathur, for the respondent No.1 would however submit that the order dated 24.02.2014, passed by the Board while reserving the judgment in the appeal filed by the petitioner was a consent order passed in the presence of both the parties and the petitioner cannot now make any ground for interference with the judgment of the Board on the aforesaid count. Sr. Counsel further submitted that in any event of the matter, a reading of the impugned judgment dated 24.03.2014 indicates that the documents filed by the respondents under Order 41, Rule 27 CPC before the Board have not been determinative in the impugned judgment dismissing the appeal filed by the petitioner. It has been submitted that the two grounds agitated on behalf of the petitioner are therefore of no avail and the petition therefore be dismissed. 4. Mr. Goyal in rejoinder would submit that the procedural irregularity by the Board in allowing the application under Order 41, Rule 27 CPC subsequent to the judgment being reserved and also even otherwise taking additional evidence on record without opportunity of rebuttal to the petitioner is by itself sufficient for impugned judgment being set aside. It has been further submitted that, contrary to what has been stated by the Sr. Counsel for the respondent No.1, in fact the Board in para 18 of the judgment dated 24.03.2014 has referred in extenso to the documents filed by the respondent No.1 with the application under Order 41, Rule 27 CPC subsequent to it reserving judgment. 5. Heard. Considered. 6. This writ petition is being addressed only from the point of Board's procedural illegality without reference to the merits of the case. 5. Heard. Considered. 6. This writ petition is being addressed only from the point of Board's procedural illegality without reference to the merits of the case. This Court in Raj Kumar Ajmani (Supra) has very categorically held that subsequent to the arguments being heard in a suit, no application for bringing additional documents/evidence on record can be filed by any party to the suit as subsequent to reserving of the judgment, no proceeding is pending before the concerned court. Consequently at this stage the court is prohibited from taking on record any additional documents including, as in the aforesaid case, only the supplementary power of attorney. It was held that even by resort to inherent powers under Section 151 CPC, subsequent to reserving of a judgment, no documents in any manner whatever could be taken on record. In the instant case it is evident from para 16 of the Board's impugned judgment dated 24.03.2014 that after reserving of judgment by the Board on 24.02.2014 the application under Order 41, Rule 27 CPC filed on 25.02.2014 was allowed and 49 documents filed therewith taken on record for consideration. It is not for this Court to address further on the issue as to whether or not the said documents were taken into consideration by the Board in arriving in its ultimate conclusion of dismissal of the appeal as while the counsel for the petitioner has submitted that they were considered, counsel for the respondent No.1 submitted that they were not. In my considered opinion, a well settled principle of law cannot be allowed to be diluted by a caveat such that it leaves room in adjudication of cases for exercise of discretion one way or the other by each court in proceedings before such courts. Certainty of law is fundamental to its effectiveness. In this view of the matter, in my considered opinion, the taking of documents on record by the Board at the instance of the respondent No.1 on the application under Order 41, Rule 27 CPC filed after judgment being reserved as also additionally reference thereto in the judgment as evident from its bare reading vitiates the judgment dated 24.03.2014 on this count alone. 7. In the circumstances, I am of the considered view that there is no occasion to address the other aspect of the arguments of Mr. 7. In the circumstances, I am of the considered view that there is no occasion to address the other aspect of the arguments of Mr. Goyal that subsequent to taking of documents on record under Order 41, Rule 27 CPC, an opportunity of rebuttal was necessary to be granted to the opposite party as held by the Hon'ble Supreme Court in the case of The Land Acquisition Officer (Supra). It is however no doubt true that the Hon'ble Supreme Court has held in the aforesaid judgment that an application under Order 41, Rule 27 CPC for taking additional evidence on record before the appellate authority should be only an exception for good reasons recorded therefor as to why the additional evidence was being taken on record at the appellate stage and whether without such additional evidence it would not be possible for the appellate authority/court to pronounce its judgment. It is also true that subsequent to taking additional evidence on record under Order 41, Rule 27 CPC for good reasons, it is incumbent upon the concerned appellate authority/court to allow the opposite party an opportunity of rebuttal. Admittedly this was not done in this case. 8. The upshot of the aforesaid reasoning is that the writ petition deserves to be allowed and the judgment dated 24.03.2014, passed by the Board is set aside. The matter is remanded to the Board with a direction to dispose of remanded appeal within a period of two months from the presentation of certified copy of this order of this Court. 9. The petitioner shall be free to move an application for interim relief before the Board, in the meantime, if so advised.Petition allowed. *******