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2014 DIGILAW 473 (CAL)

Sital Kumar Poddar v. Amit Kumar Saha

2014-05-16

SAHIDULLAH MUNSHI

body2014
JUDGMENT : Sahidullah Munshi, J. 1. This revisional application under Article 227 of the Constitution arises out of Order No. 19 dated 21st March, 2011 passed by learned Civil Judge (Senior Division, Ranaghat, Nadia) in Title Appeal No. 31 of 2007 thereby rejecting defendant's application under Order 41 Rule 27 of the Code of Civil Procedure. 2. In the revisional application the defendant/appellant/petitioner agitates that the plaintiff-opposite party as landlord filed a suit being Title Suit No. 115 of 1996 against the defendant petitioner for his eviction and also for mesne profit. After a contested hearing the suit was decreed and the defendant was given 2 months' time from the date of judgment to vacate the suit room and to deliver its possession in favour of the plaintiff. The defendant/petitioner, being aggrieved by the said judgment and decree passed in suit preferred an appeal being Title Appeal No. 31 of 2007. 3. The defendant petitioner filed an application in the learned Court of appeal below under the provisions of Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure. In the said application the defendant has stated that by filing written statement he categorically stated that he was tenant under the plaintiff Ajit Kumar Saha and that there was no relationship of landlord and tenant between the plaintiff/respondent and the defendant/appellant. The defendant/appellant also mentioned in his written statement that there was an agreement between the defendant and Ajit Kumar Saha. It was further stated in the written statement that tenancy was created on 4th day of Shravan and month of tenancy was from 4th of Bengali month up to 3rd of following month. The defendant/appellant in the written statement also mentioned that Ajit Kumar Saha, his landlord accepted Rs. 10,000/- (Ten Thousand) only from the defendant as advance assuring to construct a new room where the defendant was to stay and there was a writing to that effect. In the application under Order 41 Rule 27 it has been stated by the defendant that the said two documents that is, the written agreement and the written proof of acceptance of Rs. 10,000/- (Ten Thousand) only as aforesaid by the landlord, could not be found out during the trial in spite of best endeavour and, accordingly, the defendant could not file the same during trial. 10,000/- (Ten Thousand) only as aforesaid by the landlord, could not be found out during the trial in spite of best endeavour and, accordingly, the defendant could not file the same during trial. It is his case that at the appellate stage the defendant has been able to trace out those two documents and should be marked as Exhibit and should be considered by the learned Appeal Court below for adjudication of the disputes involved in the suit. The contention of the defendant in the said application under Order 41 Rule 27 was opposed by the plaintiff by filing a written objection wherein it has been stated by the plaintiff that prayer was made for admission of additional evidence with an ulterior motive and in order to harass the plaintiff/respondent. 4. The said application filed by the defendant/petitioner under Order 41 Rule 27 was considered by the learned Court of appeal below and by the order impugned the same was rejected. While rejecting the said application of the defendant the learned Court of appeal below held that the application was devoid of any merit and failed to comply with the requirements under the provisions of Order 41 Rule 27. It has been held by the learned Court of appeal below that the said petition did not contain appreciable ground so that the same could be considered by the Court. The learned Court below has held that after an issue has been decided at the trial and on that very issue the defendant having suffered the judgment, there is no scope for the appeal Court to allow the judgment-debtor to file additional evidence to escape from the issue already decided at the Trial. The learned Court of appeal below has also held that no material is available in the Trial Court's record which could show that during the trial the defendant made any attempt before the Trial Court to search for the said documents, although, he referred those documents in his written statement, he did not pray for any time before the Trial Court. 5. Accordingly, the conduct of the defendant did not appear to be satisfactory before the learned Court of appeal below and the said application was rejected. 6. 5. Accordingly, the conduct of the defendant did not appear to be satisfactory before the learned Court of appeal below and the said application was rejected. 6. The revisional application was first taken up for consideration by this Court on 8th September, 2011 and on a prima facie satisfaction, this Court passed an order of stay of all further proceedings of the appeal until further orders and directed that the matter would be listed for final disposal in the monthly list of November 2011. The revisional application was directed to be served upon the opposite party with a further direction upon the petitioner to file an affidavit-of-service on the next date of hearing. On February 14, the matter was called on for hearing but none appeared on behalf of either of the parties, and the matter had to be adjourned for that day. The matter was again called on for hearing but nobody appeared for the petitioner at the first call and it was passed over. In the second call the matter was again taken up but neither anybody appeared for the petitioner nor any accommodation was sought for on behalf of the petitioner. On the other hand, it was submitted by the learned advocate appearing for the opposite party that his client has been suffering an interim order of stay since the admission of the revisional application on 8th September, 2011. Considering the agony of the opposite party, who is suffering an Order of stay, this matter was heard ex-parte. 7. On a perusal of the provisions of Order 41 Rule 27 it appears that production of additional evidence in Appellate Court is not the 'rule' but can be done only by way of 'exception'. On a plain reading of the rule in question it appears that production of additional evidence either in the nature of oral or documentary, is permitted only under three circumstances that is, i) if the Trial Court had refused to admit the evidence though it ought to have been admitted; ii) the evidence was not available to the party despite due diligence and iii) the Appellate Court required the additional evidence to pronounce a better judgment or for any other substantial cause of like nature. Therefore, a party, seeking to avail the opportunity provided under this exceptional rule, has to satisfy the Court by all means that he had been prevented by believable and reasonable causes from bringing the documents in time as are now being sought to be filed before the Appellate Court, could not be filed before the Trial Court. The circumstances which prevented the party from bringing the said documents before the Trial Court, has to be explained in such a way that Court would not have any hesitation to believe that the party was really in difficulty to bring the documents to the notice of the Court. That apart, in order to invoke the jurisdiction of Order 41 Rule 27, Court has to visualise the situation whether or not it would be proper for the Appellate Court to allow the party seeking to adduce additional evidence. 8. In the instant case, it appears that the documents which are now being sought to be filed before the Appellate Court were not filed before the Trial Court and in absence of those documents the Trial Court decided the issue against the defendant holding, inter-alia, that the defendant's tenancy was terminated by a valid notice to quit and such notice was duly served upon the defendant. A copy of the judgment passed by the Trial Court by which the defendant was directed to hand over possession of the suit room, has been perused by this Court and it appears that there is no scope to allow the defendant to bring any tenancy agreement executed by and between the defendant tenant and the plaintiff landlord. The written statement disclosed the contents of the said agreement and even after considering the same, the Court decided the issue against the defendant. On a perusal of the written statement, as tendered by the learned advocate it appears that the defendant admitted to have tendered monthly rent for the premises, thereby accepting plaintiff to be his landlord. 9. In my considered opinion, I feel that the party should not be allowed to fill up the lacuna at the appellate stage under the garb of additional evidence on a particular issue which has already been decided against him. 9. In my considered opinion, I feel that the party should not be allowed to fill up the lacuna at the appellate stage under the garb of additional evidence on a particular issue which has already been decided against him. That apart, the only excuse shown by the defendant in his application under Order 41 Rule 27 before the learned Appeal Court below is that in spite of due diligence he could not find out the document. I agree with the learned Appellate Court below that on such a vague and casual approach, Court should not allow production of additional evidence before the Appellate Court. 10. Learned advocate appearing for the opposite parties placed reliance on a judgment reported in (2012) 8 SCC 148 (Union of India v. Ibrahim Uddin & Anr.). The learned advocate has particularly relied on paragraphs 36 to 40 of the said report wherein the Hon'ble Apex Court has held that in the absence of satisfactory reasons for non-production of the evidence in the Trial Court, additional evidence should not be admitted in appeal. The said paragraphs are set out below: 36. The general principle is that the Appellate Court should not travel outside the record of the lower Court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the Court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy, Municipal Corpn. of Greater Bombay v. Lala Pancham, Soonda Ram v. Rameshwarlal and Syed Abdul Khader v. Rami Reddy). 37. The Appellate Court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. (Vide K. Venkataramiah v. A. Seetharama Reddy, Municipal Corpn. of Greater Bombay v. Lala Pancham, Soonda Ram v. Rameshwarlal and Syed Abdul Khader v. Rami Reddy). 37. The Appellate Court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co.) 38. Under Order 41 Rule 27 CPC, the Appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the Appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the Appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the Appellate Court is empowered to admit additional evidence. (Vide Lala Pancham). 39. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial Court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower Court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So, a party who had ample opportunity to produce certain evidence in the lower Court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava and S. Rajagopal v. C.M. Armugam). 40. So, a party who had ample opportunity to produce certain evidence in the lower Court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava and S. Rajagopal v. C.M. Armugam). 40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. 11. Having considered the materials-on-record, the submissions of the learned advocate for the opposite party and the decision cited above, I am of the view that the order impugned does not call for any interference by this Court, inasmuch, as there has been neither any error in rejecting the application under Order 41 Rule 27 nor is there any material irregularity in passing the order impugned nor do I find that the Court has abused its jurisdiction or has acted in excess of its jurisdiction in passing the order impugned. 12. Accordingly, the order impugned is affirmed and the revisional application is rejected. 13. No order as to costs. Revisional application rejected.