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2014 DIGILAW 858 (GUJ)

Patel Vashram Pancha v. State of Gujarat

2014-08-01

N.V.ANJARIA

body2014
JUDGMENT : N.V. Anjaria, J. It was on the following substantial questions of law, present Appeal came to be admitted on 01.04.2003 by this Court: "(i) Whether on the facts and circumstances of the case, the order of the appellate Court is justified in law without the appellate Court recording a finding that ingredients of Order 41 Rule 47 of the Civil Procedure Code are satisfied? (ii) Whether on the facts and circumstances of the case, the order of the appellate Court was justified in law in remanding the matter by quashing and setting aside the judgment and decree of the trial Court without assigning any valid reason?" 2. The appellants herein are the original plaintiffs. By instituting Regular Civil Suit No. 421 of 1980 before the Court of Civil Judge(S.D.) Junagadh, they prayed for declaration and permanent injunction that they were owners of the land bearing survey No. 32/1, measuring 15 Acres 6 gunthas, situated at Village Hasnapur. It was purchased by the plaintiffs by a registered sale deed dated 19.02.1980 from one Bai Santok. The Trial Court decreed the Suit by judgment and decree dated 27.07.1990. The defendants-the State Government and the Deputy Forest Conservator preferred Regular Civil Appeal No. 135 of 1990 before the District Court, Junagadh against the aforesaid judgment and decree. Learned Joint District Judge, Junagadh, by the impugned judgment and order dated 18.10.2000, remanded the matter to the Trial Court by allowing application of the State Government under Order 41 Rule 27 CPC for production of additional documentary evidence. The said judgment and decree by the First Appellate Court has been questioned in the present Second Appeal. 2.1. Out of the three original plaintiffs, plaintiff No. 2-Jayaben Ratilal Bhatt died in the year 1990, whose legal heirs are not brought on record. Therefore, this Appeal is preferred at the instance of plaintiffs Nos.1 and 3 only. 3. The case of the plaintiffs in their Suit was that the land was cultivated by Ram Jetha, father of Bai Santok, the predecessor in title of the plaintiffs. Said Ram Jetha received the said land under a Nazrana from erstwhile rural of the then State of Junagadh. After death of Ram Jetha, his daughter-Bai Santok received the agricultural land as she had been cultivating the land. Said Ram Jetha received the said land under a Nazrana from erstwhile rural of the then State of Junagadh. After death of Ram Jetha, his daughter-Bai Santok received the agricultural land as she had been cultivating the land. Under the Bombay Land Revenue Code as was made applicable to the then Saurashtra State, the land was given to the tenants on the basis of their holding and occupation without recovering any amount as old/treating tenure land. Accordingly, Ram Jetha and Bai Santok acquired rights in respect of the suit land; they had salable rights therein. It was further contended by the plaintiffs that in any case, by virtue of notification dated 05.07.1972 of the Government of Gujarat giving agricultural land to said farmers on permanent basis, Bai Santok had right to retain the agricultural land. It was contended that at one point of time in the year 1996, the authorities wanted to resume back the possession, but it was an erroneous application of provisions of the law. When challenged, an order came to be passed, permitting Bai Santok to retain and continue with the occupation of the land. The Suit was contested by the defendant-Government by filing written statement at Exh.13, in which, it was inter alia contended that the suit land belonged to the Forest Department and the plaintiffs were not entitled to exercise any right in respect of the same. The Trial Court framed the issues at Exh.13 and on appreciation of evidence, believed the case of the plaintiffs and decreed the Suit. 3.1. Before the First Appellate Court, application Exh.12 was filed by the defendants, seeking to produce additional evidence. In the said application filed on 05.09.2000, it was prayed to permit to produce documentary evidence as per list. The plaintiffs filed reply to the said application on 21.09.2000, approving the said prayer in the said application. The First Appellate Court, as per its order dated 28.09.2000, allowed the said application, permitting additional evidence to be produced and as a result thereof, remanded the case to the Trial Court. 4. Learned advocate for the appellants Mr. Anshin Desai submitted that the application for producing additional evidence before the First Appellate Court was grossly belated. It was further submitted that even otherwise, the application did not satisfy the ingredients of Order 41 Rule 27 of the CPC. 4. Learned advocate for the appellants Mr. Anshin Desai submitted that the application for producing additional evidence before the First Appellate Court was grossly belated. It was further submitted that even otherwise, the application did not satisfy the ingredients of Order 41 Rule 27 of the CPC. Learned advocate for the appellant submitted that therefore, the order of remand passed by the First Appellate Court after accepting the prayer for additional evidence, was unjustified in law and was liable to be set aside. He relied on decisions of the Apex Court in (i) Rangnath Parmeshwar (Pandit) Kulkarni-Mail (deceased)through heirs v. Eknath s/o Sahebrao Virkar and ors. [ (2004) 13 SCC 33 ], (ii) Karnataka Board of Wakf v. Government of India and Ors.[ (2004) 10 SCC 779 ] and (iii) State of Gujarat and anr. v. Mahendrakumar Parshottambhai Desai [ AIR 2006 SC 1864 ]. 4.1. In Rangnath Parmeshwar(supra), the Supreme Court was concerned with Rule 27(1)(b) under which the Appellate Court may receive additional evidence "for any other substantial cause". It was held that the High Court committed an error, taking a view that fresh evidence could be produced before the First Appellate Court. It reasoned that when the Appellate Court could considered judgment of the Trial Court on the basis of material on record and decide whether the Trial Court had come to a correct finding, there was no question of adducing further evidence. In Karnataka Board of Wakf(supra), the Apex Court held that the scope of Order 41 Rule 27 CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they are shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the Court to pronounce proper judgment. In Mahendrakumar Parshottambhai Desai(supra), the documents sought to be produced were Government record and the Supreme Court observed that they were not the documents discovered later, or came into existence after the filing of the Suit. 4.2. On the other hand, learned Assistant Government Pleader Ms. Jyoti Bhatt submitted that by the impugned judgment and order, the Appellate Court only remanded the case. According to her, therefore, there is no good reason for interfering with the said order by this Court in exercise of powers under Section 100 of CPC. 4.2. On the other hand, learned Assistant Government Pleader Ms. Jyoti Bhatt submitted that by the impugned judgment and order, the Appellate Court only remanded the case. According to her, therefore, there is no good reason for interfering with the said order by this Court in exercise of powers under Section 100 of CPC. She further submitted that the documents sought to be produced as additional evidence were duly permitted by the First Appellate Court as they were relevant documents having bearing on the controversy. It was submitted that when the documents were noticed by the authorities, they were prayed to be produced as additional evidence. It was submitted that therefore, the contention of the appellants about belated production may not be accepted. 5. It would be worthwhile to first look into provisions of Order 41 Rule 27 of the Code of Civil Procedure, 1908 which provides for production of additional evidence in the appellate court. Rule 27 of Order 41 reads as under, "Production of additional evidence in Appellate Court. 27. (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) the Court 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 within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to produce 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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 5.1. Regarding sub rule (1) of Rule 27 quoted above provides that in the Appellate Court, the parties are not entitled to produce either oral or documentary evidence in addition to those produced in course of the trial. The Rule, however, further provides and mentions threefold circumstances in which, the appellate court may allow production of additional evidence, or may allow witnesses to be examined. The Rule, however, further provides and mentions threefold circumstances in which, the appellate court may allow production of additional evidence, or may allow witnesses to be examined. Additional evidence could be permitted at the appellate stage, if the Court, against whose judgment and decree, the Appeal is preferred, refused admission of the evidence which ought to have been admitted by it. The additional evidence could also be allowed, if the Appellate Court requires any document to be produced to enable to pronounce judgment or for any other substantive cause. The above are the circumstances provided in clause (a) and clause (b) respectively in sub-rule (1) of Rule 27. 5.2. In the present case, thus the party-defendant made an application, praying for production of additional evidence, claiming that the documents proposed to be produced could not be produced at the time of trial and that, the documents became available at a later stage. It was not the case where the evidence was produced before the Trial Court, and the same though required to be admitted, was not admitted by the Trial Court. Nor, is the case that the Appellate Court, on its own, required any such document wanting to be produced from the defendants on the ground that it was necessary for it to enable it to pronounce judgment. 5.3. Clause (aa) of Rule 27(1) applies to the facts of this case which says that a party may be permitted to produce additional evidence, if it establishes that in spite of due diligence, the evidence could not be produced at the time of passing of decree appealed against, or that it was not within his knowledge despite exercise of due diligence. Sub-rule (2) of Rule 27 further provides that where the additional evidence is allowed, the Appellate Court shall record reasons for the same. 5.4. In Mahendrakumar Parshottambhai Desai(supra), what was under consideration of the Apex Court was a situation where the application was falling under Rule 27(aa) and it was not that the additional requirement was required by the Court on its own. In that case, akin to the facts of the present case, the Apex Court observed, "12. Mr. Sorabjee appearing on behalf of the respondents rightly submitted that Order XLI, Rule 27 of the Code of Civil Procedure cannot be invoked by a party to fill up the lacunae in his case. In that case, akin to the facts of the present case, the Apex Court observed, "12. Mr. Sorabjee appearing on behalf of the respondents rightly submitted that Order XLI, Rule 27 of the Code of Civil Procedure cannot be invoked by a party to fill up the lacunae in his case. The State found itself in a dilemma when confronted with two sets of documents conflicting with each other. There was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by the State or that such evidence was not within its knowledge. In fact, no ground whatsoever was made out for adducing additional evidence, and the sole purpose for which the State insisted upon adducing additional evidence was to persuade the Court to accept the point of view urged on behalf of the State, since the evidence on record did not support the case of the appellants/State. Having considered all aspects of the matter, we are satisfied that the High Court rightly rejected the applications filed by the State for adducing additional evidence at the stage of appeal which was intended only to fill up the lacunae in its case." 6. At this stage turning to the facts of the Suit and the evidence before the Trial Court, the Suit of the appellants-plaintiffs came to be decreed on 27.07.1990 on the basis of evidence led before it by the parties. The case of the plaintiffs that they purchased agricultural land bearing survey No.32/1 admeasuring 15 Acres and 6 gunthas was believed by the Trial Court, holding that the occupancy rights in respect of the said land vested originally in Ram Jetha continued with Bai Santok and then got transmitted to vest in favour of the plaintiffs when they purchased the land from Bai Santok by way of registered sale deed. Resolution of the State of Saurashtra dated 05.07.1972, giving occupancy right on permanent basis to the existing holders of Khalsa land was before the Trial Court, and the same was found to be applicable. It recorded that after independence, the Bombay Land Revenue Code was applied to the erstwhile State of Saurashtra by notification dated 20.09.1948, and the resolution of the then Saurashtra State dated 01.03.1950(Exh.29) conferred occupancy right of Khalsa land to all the tenants of such land. The said resolution provided that "the govt. It recorded that after independence, the Bombay Land Revenue Code was applied to the erstwhile State of Saurashtra by notification dated 20.09.1948, and the resolution of the then Saurashtra State dated 01.03.1950(Exh.29) conferred occupancy right of Khalsa land to all the tenants of such land. The said resolution provided that "the govt. of Saurashtra has been pleased to order that occupancy rights as provided for in the Bombay Land Revenue Code, 1879, as adopted and applied to Saurashtra to be conferred upon the existing holders of Khalsa lands without charging any price with effect from the date the said Code has come into force in Saurashtra". The Trial Court recorded that the said Exh.29 resolution was applicable to all the lands and contained no exception and the nature of possession of the land was old condition and the beneficiaries derived right to sell. 6.1. The Trial Court recorded that Bai Santok, daughter of Ram Jetha inherited the land with such rights, and from whom, the plaintiffs purchased. The Trial Court further recorded that then followed resolution dated 05.07.1972 Exh.30 under which those occupants cultivating the land on or before 31.12.1967 were granted the land on permanent basis. The said resolution was issued by the Forest and Agricultural Department of the Government, and it provided another reinforcing source for the rights of the occupants-Bai Santok and thereafter, the plaintiffs. It was on the basis of consideration and interpretation of the resolutions(Exh.29 and Exh.30) mentioned above, the Trial Court found that the declaration prayed for by the plaintiffs required to be granted. The defendants did not produce any documentary evidence, and failed to substantiate their case, and could not dislodge the position as regards the rights of the appellants-plaintiffs-holders of the land derivable and derived by virtue of the aforesaid resolutions. The Trial Court thus had evidence produced by both the parties, on the basis of which, the Suit could be properly decreed. The defendant-State Government had an opportunity to produce whatever material or documents, it wanted to produce at that stage of trial. 7. The Trial Court having pronounced the judgment on the set of aforesaid facts and evidence, when the same was appealed against before the Appellate Court, the defendant-State Authorities wanting to adduce additional evidence filed their application which was under Rule 27(aa) of Order 41, CPC. In K.R. Mohan Reddy v. Net Worth Inc. 7. The Trial Court having pronounced the judgment on the set of aforesaid facts and evidence, when the same was appealed against before the Appellate Court, the defendant-State Authorities wanting to adduce additional evidence filed their application which was under Rule 27(aa) of Order 41, CPC. In K.R. Mohan Reddy v. Net Worth Inc. [ (2007) 14 SCC 257 ], the Apex Court held that where clause (aa) is applicable, the onus is on the applicant to show that the ingredients of condition precedent mentioned therein are satisfied. On the other hand, under clause (b) of Rule 27, the Court may on its own receive additional evidence. Here also, it is held that entire evidence on record has to be considered and it is to be seen whether additional evidence as prayed for is necessary and that the said clause also cannot be invoked to patch up the weakness of evidence of unsuccessful party. 7.1. The Supreme Court observed, "The High Court failed to apply the provisions of Order 41 Rule 27 CPC in its correct perspective. Clause (a), (aa) and (b) of Rule 27(1) of Order 41 refer to three different situations. Power of the appellate court to pass any order thereunder is Limit. For exercising its jurisdiction thereunder, the appellate court must arrive at a finding that one or the other conditions enumerated thereunder is satisfied. A good reason must also be shown as to why the evidence was not produced in the trial court." (para-15) 7.2. In the above K.R. Mohan Reddy(supra), the respondent in its application stated that the books of account has been misplaced and the same were discovered a few days prior to the filing of the said application when the office being shifted. Observing that the High Court unfortunately did not enter into the said questions and proceeded on the basis as if clause (b) of Rule 27(1) was applicable, the Apex Court proceeded to hold, "It is now a trite law that the conditions precedent for application of clause (aa) of Rule 27(1) of Order 41 is different from that of clause (b). In the event the former is to be applied, it would be for the applicant to show that the ingredients or conditions precedent mentioned therein are satisfied. In the event the former is to be applied, it would be for the applicant to show that the ingredients or conditions precedent mentioned therein are satisfied. On the other hand if clause (b) of Rule 27(1) of Order 41 CPC is to be taken recourse to, the appellate court is bound to consider the entire evidence on record and come to an independent finding for arriving at a just decision; adduction of additional evidence as has been prayed by the appellant was necessary. The fact that the High Court failed to do so, in our opinion, amounts to misdirection in law." (para-17) 7.3. In Union of India v. Ibrahim Uddain and anr. [ (2012) 8 SCC 148 ], the Apex Court observed that 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. It was further observed that order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances and the appellate court may permit the additional evidence "only and only" if the conditions laid down in this rule are found to exist. 7.4. Referring to several decisions of its own, the Supreme Court in Ibrahim Uddain(supra), further observed that Order 41 Rule 27 is an exception which enables the appellate court to take additional evidence and such evidence could be accepted in exceptional circumstances. It observed, "... 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"" (para-36) 7.5. It further observed as under, "The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to a 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 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." (para-37) 8. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is 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." (para-37) 8. Therefore, so as to decide whether an application under Order 41 Rule 27, in particular under Rule 27(1) (aa), the parameters to be applied are well settled. The applicant party must satisfactory establish that the additional evidence which it wanting to produce could not be produced by it despite due diligence, and therefore, it was sought to be produced at the later stage before the Appellate Court. Secondly provision is not one which can be taken recourse to fill in the gaps in the evidence or to make good deficiencies in the evidence already adduced. If the evidence led before the Trial Court were sufficient to enable the Trial Court to pronounce the judgment on that basis and the judgment could be pronounced, merely because certain additional evidence not produced despite opportunity or not produced because of the land of diligence, would have changed the direction of the judgment, is not ground to allow application for additional evidence at the appellate stage. The provisions of Order 41 Rule 27 does not entitle the appellant to let in fresh evidence because such evidence could be said to be or contended to be helpful for pronouncing a judgment in a particular way. In K.R. Mohan Reddy (supra), the Supreme Court observed that "the ability to pronounce the judgment is to be understood as the ability to pronounce the judgment satisfactory to the mind of the court. But mere difficulty is not sufficient to issue such direction." 8.1. The defendant not only failed, but no reason came forth for their failure. It was only stated that the documents were not noticed at that stage and therefore, were not produced at the appellate stage. The defendants were not justified in praying for additional evidence and for contending that they were in their favour and therefore, permitted to be produced. 8.2. The Appellate Court is not supposed to allow additional evidence before it to supplement the evidence adduced by one party or the other at the trial stage. The defendants were not justified in praying for additional evidence and for contending that they were in their favour and therefore, permitted to be produced. 8.2. The Appellate Court is not supposed to allow additional evidence before it to supplement the evidence adduced by one party or the other at the trial stage. A party to be trial is expected to exercise diligence in the matter as to what evidence it should adduce and produce in course of the trial. If an inadvertence or negligence in that regard has resulted into non production of certain documents for which the party had sufficient time and opportunity, on the spacious plea that the said evidence is important for his case, the same cannot be allowed as additional evidence at the appellate stage. 9. As far as this case is concerned, clause(aa) is applicable. Therefore, necessary ingredients to be satisfied by the applicant that it was diligent and despite due diligence, the additional documents could not be produced at the trial stage. Before the District Court, when the application was made, not only the applicants-defendants failed to establish due diligence, but no reasons came forth for their failure. It was the District Government Pleader who filed application Exh.12 in his own name. Therein, he inter alia contended that the suit land was falling under the forest land and the documents were required to be considered in that regard. It was claimed that during the trial of the Suit, the Asst. Government Pleader could not produce the said documents for some reasons. The reasons were not spelt out. It was further claimed that when during the pendency of the Appeal, the documents were noticed, the application was filed. Between the dates of sale and the application, the time gap was 20 years. 9.1. As already elaborated, there was evidence before the Trial Court on the basis of which, the decree could be passed. The defendants did not thought it fit to produce the documents and raise defence, it may be wanting to raise at the relevant time. The opportunity was sufficient which was not availed of. In the circumstances, the prayer for permitting additional evidence at the appellate stage was not justified. The defendants did not thought it fit to produce the documents and raise defence, it may be wanting to raise at the relevant time. The opportunity was sufficient which was not availed of. In the circumstances, the prayer for permitting additional evidence at the appellate stage was not justified. The First Appellate Court could not be said to have acted within the parameters of Order 41 Rule 27, CPC, in allowing the application Exh.12 for production of additional evidence and then proceeding to pass the order of remand. 10. For the foregoing reasons and discussion, the impugned judgment and order 18.10.2000 in Regular Civil Appeal No. 135 of 1990 passed by learned Joint District Judge, Junagadh, whereby it remanded the matter to the Trial Court by allowing application for additional evidence, is hereby quashed and set aside. The First Appellate Court shall decide afresh Regular Civil Appeal before it, examining validity of the judgment and decree passed by the Trial Court impugned in the said Civil Appeal independently on its own merits and in accordance with law as expeditiously as possible. This Second Appeal is allowed accordingly. The Registry shall send back the record and proceedings. Appeal allowed.