Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 154 (GAU)

Anjana Sarma v. Hem Bora

2015-02-10

MANOJIT BHUYAN

body2015
JUDGMENT Manojit Bhuyan, J. 1. Heard Mr. J. Deka, learned counsel for the appellant. Also heard Mr. M.K. Choudhury, learned senior counsel assisted by Mr. A. Barkataky, Advocate for the respondent. The basic facts before the Courts below are as follows: Title Suit No. 278/1997 was filed by the appellant/plaintiff Smti Anjana Sharma before the Court of learned Sadar Munsiff, Guwahati on 4.9.1997 praying for a decree for ejectment of the respondent/defendant Sri Hem Borah from the suit premises, identified as land measuring more or less 14.00 sq.feet covered by Dag No. 84, P.P. Patta No. 1 (F.S. Grant) under Holding No. 2, Ward No. 30 of Guwahati Municipal Corporation, Bamunimaidam, Guwahati. In the written statement filed by the respondent/defendant on 24.9.1998, the relationship of Landlord and Tenant between the plaintiff and the defendant was denied, in that, it was pleaded that there was no subsisting tenancy between them at any point of time. In view of the stand of the respondent/defendant, a petition for amendment of the plaint in terms of Order 6 Rule 17 CPC was filed on 15.3.1999, to which an objection was filed by the respondent/defendant on 3.5.1999. Having heard both the parties on the petition under Order 6 Rule 17of the CPC, the learned Court below allowed the petition for amendment vide order dated 14.6.1999, whereafter the appellant/plaintiff filed the amended plaint on 7.7.1999. Particular reference is made to paragraph 1A and 1B of the amended plaint which reads as under: "1A. That the defendant deny the right, title and interest of the plaintiff over the Schedule 'A' land and for such denial, the plaintiffs right, title and interest over the suit land has been clouded. Thus the plaintiff has been compelled to file this suit against the defendants for declaration of right, title and interest over the Schedule 'A' land as well as for recovery of the Khas possession of the house standing thereon. The defendant attorned the plaintiff as his landlady. 1B. That the plaintiff is the full and absolute owner of the land. The plaintiff's mother Smti Hira Baruah originally was the owner of a plot of land measuring 1 (one) bigha covered P.P. Patta No. 1 (F.S. Grant) Dag No. 84 of Mouza-Ulubari, Guwahati. The defendant attorned the plaintiff as his landlady. 1B. That the plaintiff is the full and absolute owner of the land. The plaintiff's mother Smti Hira Baruah originally was the owner of a plot of land measuring 1 (one) bigha covered P.P. Patta No. 1 (F.S. Grant) Dag No. 84 of Mouza-Ulubari, Guwahati. After the death of the plaintiff's mother, the land was partitioned between the plaintiff and her brother and the plot as described above fell into the share of the plaintiff." 2. The prayer in the suit, as amended, was for a decree for ejectment of the defendant from the suit premises upon a declaration of right, title and interest in favour of the appellant/plaintiff. In the suit as many as 9 issues were framed, out of which Issue No. 5 was with regard to as to whether the plaintiff has right, title and interest in the suit premises. The learned Trial Court decided the issue in the negative having found that the appellant/plaintiff had not brought on record any documents showing the ownership of the original owner Smti Hira Baruah nor the Partition Deed showing that she had inherited the land after her mother's death. The learned Trial Court also held that the Municipal Tax paying receipts as well as the land revenue receipts, so exhibited, do not go to support her claim of ownership over the suit land by virtue of right, title and interest. In fact, the very title of her mother Smti Hira Baruah was considered to be doubtful and clouded. In terms of discussion in Issue No. 5, the other Issue Nos. 4 and 7 with regard to as to whether the defendant is a tenant of the plaintiff and also a defaulter were also decided in the negative. The learned Trial Court found that the plaintiff not having proved that she is the owner of the suit premises, therefore, the question of the defendant being a tenant did not arise and consequently the question of tenant being a defaulter was held redundant. By judgment and decree dated 28.8.2000 passed by the Civil Judge (Jr. Division No. 3) Guwahati the suit was dismissed on contest without cost. 3. Being aggrieved, the appellant/plaintiff Smti Anjana Sharma filed Title Appeal No. 38/2001 on 3.5.2001 before the Court of the Civil Judge (Sr. Division) No. 1, Kamrup at Guwahati. By judgment and decree dated 28.8.2000 passed by the Civil Judge (Jr. Division No. 3) Guwahati the suit was dismissed on contest without cost. 3. Being aggrieved, the appellant/plaintiff Smti Anjana Sharma filed Title Appeal No. 38/2001 on 3.5.2001 before the Court of the Civil Judge (Sr. Division) No. 1, Kamrup at Guwahati. During the pendency of the appeal, the appellant/plaintiff filed petition under Order 41 Rule 27 CPC praying for leave to adduce additional evidence, being the gift deed and the mutation order. At paragraph 4 to the said petition under Order 41 Rule 27 of the CPC, the appellant/plaintiff stated that after due diligent search the certified copy of the gift deed dated 21.3.1963, executed by one Sri Prafulla Ch. Baruah in favour of her mother Smti Hira Baruah, could be found. The said gift deed was in respect of the gifting of 1 Bigha of land by said Prafulla Ch. Baruah to Smti Hira Baruah. It was averred that upon the death of Smti Hira Baruah, the appellant/plaintiff became the owner of the land as per partition between the plaintiff and her brother and that the appellant/plaintiff also got her name recorded in the revenue records. It was also averred that the said facts are required to be brought into evidence which, however, could not be brought to the notice of the Court by giving evidence. Statement was also made that the respondent would not be prejudiced if prayer for additional evidence is allowed. Objection to the petition under Order 41 Rule 27 CPC was filed by the respondent/defendant to the extent that the appellant/plaintiff had never pleaded in the plaint in respect of any gift deed and had nowhere stated as to how she had acquired title of the land. Further, that the appellant/plaintiff cannot be allowed to introduce new pleading and new document at such a belated stage of the proceedings, which were neither disclosed in the year 1997 when the suit was filed or in the year 1999 when the plaint was amended or at the time of adducing evidence by the appellant/plaintiff. Further, that the appellant/plaintiff cannot be allowed to introduce new pleading and new document at such a belated stage of the proceedings, which were neither disclosed in the year 1997 when the suit was filed or in the year 1999 when the plaint was amended or at the time of adducing evidence by the appellant/plaintiff. The respondent/defendant also pleaded that prejudice would be caused and the character of the suit would also change if the appellant/plaintiff is allowed to adduce additional evidence and prove new document The order on the said petition was passed on 5.12.2003 rejecting the same on ground that the appellant/plaintiff could show nothing of not having knowledge about the gift deed at the time of adducing evidence before the Trial Court nor could show any sufficient cause for her failure to produce the said document at the time of trial of the suit. 4. Being aggrieved the appellant/plaintiff filed a Petition under Article 227 of the Constitution of India before this Court registered and numbered as WP(C) No. 1696/2004. By order dated 10.3.2006 passed in the said WP(C) No. 1696/04, this Court observed that the Title Appeal No. 38/2001 was still pending before the Court below and the matter had not been finally decided by the order impugned. This Court held that as the appellant/plaintiff could not make out a case requiring interference under Article 227, the petition was dismissed with direction to the appellate court to dispose of the matter expeditiously. Thereafter, judgment and decree dated 23.11.2006 was passed in the said Title Appeal No. 38/2001 affirming the judgment and decree of the learned Trial Court, save and except the decision on Issue No. 3 relating to the question of limitation. 5. Being aggrieved, the appellant/plaintiff have approached this Court by filing an appeal under Section 100 read with Order 42 Rule 1 and Order 41 Rule 1 & 2 CPC. Along with the said appeal, the appellant/plaintiff has also filed a Misc. Case No. 1454/2011 under Order 41 Rule 27 read with Section 151 of the CPC praying for allowing the appellant/plaintiff to adduce additional evidence by way of producing document mentioned in paragraph 13 therein and leave to prove the said document by calling official witnesses. 6. This Court by order dated 23.1.2012 admitted the appeal for hearing on the following substantial questions of law. 6. This Court by order dated 23.1.2012 admitted the appeal for hearing on the following substantial questions of law. "(1) Whether, in view of Exhibits-21 to 38, the learned Courts below were justified in holding that there is no relationship of the landlord and tenant between the plaintiff and the defendant and consequently whether the defendant can deny the plaintiff's title? (2) Whether the plaintiff/appellant could prove the requirement of Order 41 Rule 27 of the CPC so as to allow her to adduce additional evidence, if so, whether the learned First Appellate Court was justified in rejecting the said prayer?" 7. Mention be made that on 2.4.2013 the appellant/plaintiff filed an additional affidavit in the said Misc. Case No. 1454/2011 (in RSA 103/2011) to bring on record certain other documents for adducing additional evidence which had been obtained subsequently under the Right to Information Act and which are deemed relevant for effective and compete adjudication of the controversy between the parties for all times to come. By order dated 20.1.2014 this Court was pleased to pass an order for listing of the matter alongwith the instant RSA 103/2011 for hearing on 26.2.2014. 8. Before weighing the rival contentions of the parties in the present second appeal and upon perusal of records, this Court finds that in so far as the first substantial question of law is concerned, requiring an answer from this Court, the documents at Exhibits 21 to 38 are rent receipts in proof of rent received by the appellant/plaintiff from an institution called East End Nursing Home for the period from July 1998 to January 2000. The concurrent findings of the courts below on the said Exhibits are that the same are irrelevant for the purpose of the suit and are not rent receipts in respect of the suit premises. Be that as it may, this Court holds that the determination of the said first question does not involve a substantial question of law. It is a question of fact which the courts below had considered and answered. Interference by this Court would only amount to re-appreciation of material evidence specially when both the Courts below rendered concurrent findings on it. 9. It is a question of fact which the courts below had considered and answered. Interference by this Court would only amount to re-appreciation of material evidence specially when both the Courts below rendered concurrent findings on it. 9. In so far as the second substantial question of law, so formulated, is concerned, this Court is of the opinion that determination by the First Appellate Court to adduce additional evidence has a material bearing on the verdict so rendered vis-a-vis the rights of the parties. Also, whether there has been a substantial error resulting in error in decision. 10. On the power of this Court to hear the appeal for determining the second substantial question of law, Mr. J. Deka, learned counsel for the appellant/plaintiff referred to Section 107(b) and (d), Section 108 as well as Order 41 Rule 27 and Order 42 Rule 1of the Code of Civil Procedure. Reference has also been made to Order 8 Rule 5 of the CPC to urge that the statements made in paragraphs 1A and 1B of the amended plaint not having been specifically denied by the respondent/defendant, the same has to be taken to be an admitted fact with regard to the scope and manner for exercise of powers under Order 41 Rule 27 of the CPC. Reliance is placed upon the following decisions: i) (2008) 8 SCC 511 , North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (dead) by LRs, (ii) AIR 1979 SC 553 , Syed Abdul Khader Vs. Rami Reddy & Ors., (iii) AIR 2003 Calcutta 263 (M/s. Ceean International Private Limited Vs. Ashok Surana & Anr.), (iv) 1999 (1) GLT 198, Assam Hindu Mission Vs. Elaboris Iron (Smti). 11. On the other hand, Mr. M.K. Choudhury, learned Senior counsel, urged that the second appeal is not maintainable primarily because the issue with regard to producing additional evidence was earlier considered and rejected by this Court in WP(C) No. 1696/2004. Remand of the case to the Trial Court below, enabling the appellant/plaintiff to produce additional evidence, would tantamount to review of the order dated 10.3.2006 passed in the said WP(C) No. 1696/2004. Also, the casual manner in which the case before the Courts below had been conducted, disentitles the appellant/plaintiff to seek equity. Mr. Remand of the case to the Trial Court below, enabling the appellant/plaintiff to produce additional evidence, would tantamount to review of the order dated 10.3.2006 passed in the said WP(C) No. 1696/2004. Also, the casual manner in which the case before the Courts below had been conducted, disentitles the appellant/plaintiff to seek equity. Mr. Choudhury, learned Senior counsel, also submits that the provisions of Order 41 Rule 27 CPC is not attracted in view of the fact that the appellant/plaintiff could never establish the prerequisite conditions as in (aa) to Order 47 Rule 21(1) of the CPC. To drive home this challenge, Mr. Choudhury referred to the order dated 9.3.1994 issued by the Additional Deputy Commissioner, Kamrup (Annexure-7 in Misc. case 1454/2011) to say that the existence of this order of mutation was well within the knowledge of the appellant/plaintiff, the suit having been instituted almost 3 (three) years thereafter i.e. in the year 1997. Maintainability of the second appeal is also questioned in view of the provisions under the Assam Urban Areas Rent Control Act, 1972 by referring to section 8 thereof and law as laid down in the case of Ramesh Chandra Basak Vs. Deo Narain Pandit, reported in 1984 GHC 49. As regards the contention of Mr. J. Deka, Advocate with regard to Order 8 Rule 5 CPC, Mr. Choudhury, learned Senior counsel refers to the provisions of Order 15 Rule 1 CPC to contend that the question of 'specific denial' is wholly redundant in the facts and circumstances of the case, more so, when no Issues had been framed by the Trial Court in the context of the statements made in paragraphs 1A and 1B of the amended plaint. Alleging absence of perversity in the judgments and decrees of the Courts below, Mr. Choudhury also submits that the decisions relied upon by Mr. J. Deka, Advocate are wholly inapplicable, inasmuch as, the said decisions are not cases of concurrent findings as in the instant case. On the power of this Court and limitations thereof for exercise of powers under Order 41 Rule 27 CPC and Section 100 CPC, Mr. Choudhury places reliance on the following decisions: (i) (2006) 9 SCC 772 , State of Gujarat Vs. Mahendra Kumar Parshottambhai Desai. (ii) 2012 (5) GLT 340, Anjan Barman Choudhury Vs. Ranjan Barman Choudhury. (iii) (2012) 8 SCC 148 , Union of India Vs. Ibrahim Uddin & Anr. Choudhury places reliance on the following decisions: (i) (2006) 9 SCC 772 , State of Gujarat Vs. Mahendra Kumar Parshottambhai Desai. (ii) 2012 (5) GLT 340, Anjan Barman Choudhury Vs. Ranjan Barman Choudhury. (iii) (2012) 8 SCC 148 , Union of India Vs. Ibrahim Uddin & Anr. (iv) 2014 (5) GLT 272, Nurul Huda Laskar (Md.) Vs. Tayajunnessa (Musstt.) 12. In reply, Mr. J. Deka, Advocate, broadly contends that the present appeal is maintainable in view of the provisions under Section 107 read with Order 41 Rule 27 and Order 42 Rule 1 of the CPC. Further, the bar under the Assam Urban Areas Rent Control Act, 1972 is not attracted as the suit, after amendment of the plaint, was a declaratory suit and not a rent suit. Mr. Deka, Advocate also submits that Issue No. 5 could not have been conclusively determined on the materials available on record. Further, that no prejudice will be caused if permitted to produce additional evidence as the respondent/defendant is in possession of the suit land and will have sufficient opportunity to defend his case before the Trial Court. A couple of other decisions were also placed by Mr. Deka in the context of the pleadings "loosely drafted" and the manner of scrutiny by Courts in such eventualities [(1997) 1 SCC 669, Madan Gopal Kanodia Vs. Mamraj Maniram & Ors.], as well as the distinction between an appeal and revision [ (1995) 4 SCC 201 , Lachhman Dass Vs. Santokh Singh]. To put on record, these two decisions are not considered for the purpose of deciding the present appeal. 13. In this appeal, the primary adjudication rests upon the issue as to whether the failure of Appellate Court below in not allowing the application filed by the appellant under Order 41 Rule 27 CPC had occasioned grave error going to the root of matter and whether or not the appellant ought to have been allowed to adduce additional evidence at a belated stage. 14. For the purpose of deciding the issue raised in this appeal, this Court is of the opinion that discussion confined to the decisions rendered by the Apex Court in North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (dead) by LRS. (supra) and Union of India Vs. Ibrahim Uddin (supra), would conclusively determine the present lis. To quote from the former case, paragraphs 13, 14 and 15 reads as under: "13. Bhagwan Das (dead) by LRS. (supra) and Union of India Vs. Ibrahim Uddin (supra), would conclusively determine the present lis. To quote from the former case, paragraphs 13, 14 and 15 reads as under: "13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. The circumstances under which additional evidence can be adduced are: (i) the court from whose decree the appeal preferred has refused to admit evidence which ought to have been admitted [clause (a) of sub-rule (10], or (ii) the party seeking to produce additional evidence, established that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed [clause (aa), inserted by Act 104 of 1976], or (iii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause [clause (b) of sub-rule (1)]. 14. It is plain that under clause (b) of sub rule (1) of Rule 27 Order 41 CPC, with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it 'requires' to enable it to pronounce judgment 'or for any other substantial cause'. The scope of the rule, in particular of clause (b) was examined way back in 1931 by the Privy Council in Parsotim Thakur & Ors. Vs. Lal Mohar Thakur & Ors. While observing that the provisions of Section 107 as elucidated by Order 41 Rule27 are clearly not intended to allow litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows: ".... Under Cl. Lal Mohar Thakur & Ors. While observing that the provisions of Section 107 as elucidated by Order 41 Rule27 are clearly not intended to allow litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows: ".... Under Cl. (1)(b) it is only where the appellate Court 'requires' it, (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands some inherent lacuna or defect becomes apparent'." 15. Again in K. Venkataramiah Vs. A. Seetharama Reddy & Ors. a Constitution Bench of the Supreme Court while reiterating the afore-noted observations in Parsotim's case (supra), pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other substantial cause'. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence 'to enable it to pronounce judgment', it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits." 15. From a close perusal of the afore-quoted paragraphs rendered in the case of North Eastern Railway Administration, Gorakhpur (supra), it is clear that although Section 107 CPC enables an Appellate Court to take additional evidence, it is conditioned by the limitations prescribed under Order 41 Rule 27 CPC. From a close perusal of the afore-quoted paragraphs rendered in the case of North Eastern Railway Administration, Gorakhpur (supra), it is clear that although Section 107 CPC enables an Appellate Court to take additional evidence, it is conditioned by the limitations prescribed under Order 41 Rule 27 CPC. At the same time, it is held that the Appellate Court has the power to allow additional evidence not only if it requires such evidence enabling it to pronounce judgment but also for any other substantial cause. More flexibility has been introduced by holding that even in cases where the Court is able to pronounce judgment on the available records, it may still take into consideration something that had remained 'obscure' enabling it to pronounce its judgment in a more satisfactory manner - the principle being 'in the interest of justice.' 16. In the case of Union of India v. Ibrahim Uddin (supra), paragraphs 36 to 54 are entirely devoted to discussion on Order 41 Rule 27 CPC. The relevant paragraphs are extracted hereinbelow: "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, provision does not apply, when on the basis of 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 & Ors., AIR 1963 SC 1526 ; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008 ; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479 ; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553 ). 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. v. Rameshwaralal & Anr., AIR 1975 SC 479 ; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553 ). 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 Wd. S.K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798 ). 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 & Ors. (supra) ]. 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, AIR 1957 SC 912 ; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101 ). 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, AIR 1957 SC 912 ; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101 ). 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. 41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment. 47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record such application may be allowed. 48. To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage. Stage of Consideration: 49. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide: Arjan Singh v. Kartar Singh and Natha Singh v. Financial Commissioner, Taxation)." 17. What is culled out from Ibrahim Uddin's case (supra) is that if the appellate court can pronounce a satisfactory judgment(emphasis supplied) on the basis of the evidence on record, the provision of Order 41 Rule 27 CPC cannot be applied. The discretion to be exercised must be a judicial discretion within the limitations specified in the Rule itself. It must be limited to such cases where it is found that it would be necessary to obtain additional evidence for enabling it to pronounce a satisfactory judgment. In other words, additional evidence can be allowed for removing a lacuna in the evidence, that too, upon a consideration as to the relevance of the documents sought to be introduced in respect of the issues involved in the case and the circumstances under which such evidence could not be introduced in the court below. 18. In other words, additional evidence can be allowed for removing a lacuna in the evidence, that too, upon a consideration as to the relevance of the documents sought to be introduced in respect of the issues involved in the case and the circumstances under which such evidence could not be introduced in the court below. 18. It is for the reasons above, the Apex Court held that an application under Order 41 Rule 27 CPC needs to be considered at the time of hearing of the appeal on merits in order to arrive at a finding whether the documents or evidence sought to be introduced has any relevance or bearing on the issues involved. The judicial discretion, is therefore, whether the appellate court would be able to pronounce judgment on the materials before it by ignoring the additional evidence sought to be adduced. Without doubt any new evidence should have a direct and important bearing on a main issue in the case (emphasis supplied). 19. In the instant case, the petition under Order 41 Rule 27 CPC makes mention of the Gift Deed dated 21.3.63 and the fact of the appellant/plaintiff getting her name recorded in the revenue records. It states that the same was found after due diligent search and is required to be brought into evidence as because the respondent/defendant has disputed the title of the appellant. Mention was also made that the Issue No. 5 involved the question of right, title and interest of the appellant/plaintiff in respect of the suit premises. 20. The petition under Order 41 Rule 27 CPC having been made, this Court is of the opinion that the said petition, even if filed during the pendency of the appeal, was required to be heard/considered at the time of final hearing of the appeal. In such event the prerequisites under Order 47 Rule 21(1)(aa) and (b) CPC could have received a judicial determination. In the teeth of the decision in Ibrahim Uddin's case (supra), though heavily relied upon by Mr. M.K. Choudhury, learned Senior Counsel, in support of the respondent/defendant's case on other issues, the Appellate Court ought to have considered the petition at the time of hearing of the appeal on merits in order to find out whether the documents and/or the evidence sought to be adduced have any relevance or bearing on the issues involved. 21. M.K. Choudhury, learned Senior Counsel, in support of the respondent/defendant's case on other issues, the Appellate Court ought to have considered the petition at the time of hearing of the appeal on merits in order to find out whether the documents and/or the evidence sought to be adduced have any relevance or bearing on the issues involved. 21. Before this Court, the appellant has also brought on record the documents of title, consideration of which would have enabled the Appellate Court to pronounce a satisfactory judgment, primarily on Issue No. 5. This is not a case where the appellant utterly foiled to take steps before the Appellate Court to adduce additional evidence and that this plea has been taken up for the first time in second appeal. The said documents annexed to in Misc. Case 1454/2011 in the present appeal, on a plain reading, would have a direct and important bearing on the main issue in the suit. 22. There is substantial error and defect in the procedure followed by the first Appellate Court. The paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis [ (2001) 3 SCC 179 ], this Court holds that allowing the appellant to adduce additional evidence would conclusively decide the fate of the parties for all times to come. 23. In view of the above, the Judgment and Decree dated 23.11.2006 passed in Title Appeal No. 38/2001 as well as the Judgment and Decree dated 28.8.2000 passed in Title Suit No. 278/1997 are hereby set aside. The trial Court is directed to take the additional evidence of the appellant/plaintiff and proceed for disposal of the Title Suit No. 278/1997 in accordance with law. In the result, this second appeal stands allowed, however, without any order as to costs.