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Himachal Pradesh High Court · body

2016 DIGILAW 1833 (HP)

H. P. State Forest Corporation v. Hem Singh

2016-08-31

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. By way of the present appeal, the appellant-plaintiff (hereinafter referred to as ‘plaintiff’) has challenged the judgment and decree passed by the Court of learned District Judge, Mandi, in Civil Appeal No. 77 of 2005, dated 09.10.2006, vide which, learned Appellate Court has dismissed the appeal filed by the present appellant against the judgment and decree passed by the Court of learned Civil Judge (Sr. Divn.), Mandi, in Civil Suit No. 140 of 1999, dated 01.06.2005. 2. This appeal was admitted on 14.09.2007 on the following substantial questions of law:- “1. Whether the findings of the learned Courts below are erroneous inasmuch as in not appreciating the fact that the respondent in his written statement has not denied the execution of the agreement and the fact that there had been short fall of resin at the time of extraction, though the short fall had been attributed by the respondent/defendant upon certain climatic factors? 2. Whether the findings of the learned Courts below are vitiated in holding that the agreement dated 12.3.96 has not been legally exhibited and hence cannot be taken into consideration. Have not the courts below loss sight of the law that facts admitted need not be proved? 3. Whether the learned Appellate Court below has failed to exercise its jurisdiction as vested with it under order 41 rule 27 CPC in wrongly dismissing the applicant of the appellant.” 3. Brief facts necessary for the adjudication of this case are that appellant-plaintiff (hereinafter referred to as ‘plaintiff’) filed a suit for recovery of Rs. 70,440/- against the defendant, on the ground that for the extraction of resin in the year 1996, tenders were invited from the registered Labour Supply Mates and lot No. 36/96 pertaining to Mandi was allocated to the defendant. An Agreement was signed between the plaintiff and the defendant on 12.3.1996, as per which, period of work was fixed up to 31.12.1996, which was extendable up to 31.01.1997. Rate of extraction and bringing the crude resin at road side was fixed at Rs. 630/- per quintal, which was duly accepted by the defendant. 37 terms were agreed by the defendant, which were duly printed on judicial papers and on stamp papers of Rs. 3/- which were signed by both the parties. A sum of Rs. Rate of extraction and bringing the crude resin at road side was fixed at Rs. 630/- per quintal, which was duly accepted by the defendant. 37 terms were agreed by the defendant, which were duly printed on judicial papers and on stamp papers of Rs. 3/- which were signed by both the parties. A sum of Rs. 10,000/- by way of F.D.R. was retained as earnest money, which was pledged in the name of plaintiff. From total 2985 blazes target of 125.370 pure resin was fixed. The work was commenced by the defendant and necessary assistance, which was to be provided by the plaintiff-corporation, was duly provided, however, the ratio of resin was not satisfactory. Further as per plaintiff, in the entire period, only 82.650 quintals resin was extracted and supplied to the plaintiff by defendant which was 42.720 quintals less from the fixed target. This caused loss to the tune of Rs. 1,15,344/- to the plaintiff-corporation, on account of supply of less resin. Plaintiff also issued a registered notice in this regard to the defendant which was not responded to. Accordingly, on these bases, the plaintiff filed suit for recovery of Rs. 70,440/- against the defendant alongwith interest. 4. In the written statement filed by the defendant, the case as was set up by the plaintiff was denied. According to the defendant, he was an uneducated person and was not aware of the terms and conditions which were entered into by plaintiff with him. As per him, he was simply made to sign the papers and was not explained the terms and conditions thereof. According to defendant, agreement was wrong, illegal and not enforceable under law. It was further stated by defendant that no target under law could be fixed as the same was controlled by so many factors which were not under human control. It was further stated that the condition of justifying the target was wrong and illegal and could not be enforced in law. It was further the case of the defendant that the jungle in question was a new jungle and growth of trees was small and as such yield of resin was less despite best efforts of defendant. He also stated that there were heavy rains from April, 1996 to July, 1996, followed by rainy season itself and this resulted in lowering the temperature which decreased the yield of resin. He also stated that there were heavy rains from April, 1996 to July, 1996, followed by rainy season itself and this resulted in lowering the temperature which decreased the yield of resin. It was further the case of the defendant that he had not caused any loss to the plaintiff and there was no negligence on his part. The amount calculated by the plaintiff-corporation was also disputed. As per defendant, plaintiff was not entitled to recover of any amount from him. 5. On the basis of pleadings of the parties, learned trial Court framed the following issues:- “1.Whether the plaintiff is entitled to the suit amount, if so to what extent? OPP. 2. Whether the suit is not within limitation? OPD. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD. 5. Whether agreement dated 12-3-1996 was frustrated due to act of God and as such the suit against the defendant is not competent and maintainable under law? OPD 6. Relief.” 6. On the basis of evidence led in support of the respective cases, the issues so framed were answered by the learned Trial Court in the following manner:- “Issue No.1 : No. Issue No. 2 : No. Issue No. 3 : No. Issue No.4 : No. Issue No.5 : No. Relief : Suit dismissed as per operative part of the judgment.” 7. Learned trial Court accordingly dismissed the suit so filed by the plaintiff. It was held by learned trial Court that the case of plaintiff was based on written agreement dated 12.3.1996, which document was not legally exhibited by the plaintiff. Accordingly, learned trial Court held that in the absence of said written agreement, oral statement of plaintiff could not be taken into consideration. 8. Feeling aggrieved by the said judgment passed by the learned trial Court, plaintiff filed an appeal which was also dismissed by learned Appellate Court vide judgment dated 09.10.2006. It was held by the learned Appellate Court that the case of plaintiff entirely rested upon agreement dated 12.3.1996 and plaintiff tried to prove the execution of the agreement through PW-2 Shri S.K. Musafir, who from the year 1999 to 2002, was posted as Divisional Manager, but this witness had nowhere stated that the agreement in question was signed by the defendant in his presence. Learned Appellate Court also held that this witness had not deposed whether photocopy of agreement dated 12.3.1996 placed on record by the plaintiff was correct as per the original. Learned Appellate Court further held that no other witness was examined by the plaintiff to prove its case. Learned Appellate Court also took note of the fact that in his cross examination, defendant was not confronted with his signatures on the agreement dated 12.3.1996 and since the entire edifice of the case of the plaintiff was execution of agreement dated 12.3.1996 which was never proved on record in accordance with law, on these bases, it was held by learned Appellate Court that there was no reason to differ with the findings returned by learned Appellate Court. Learned Appellate Court also held that it was incumbent upon the plaintiff to have examined the officials of the Department in whose presence the agreement was executed and defendant should also have been confronted with his signatures/thumb impression on the agreement dated 12.3.1996. During the pendency of the appeal, an application under Order 41, Rule 27 of Code of Civil Procedure (for short ‘CPC’) was filed by the plaintiff to prove agreement dated 12.3.1996, which as per plaintiff, could not be exhibited due to oversight. This application was not allowed by learned Appellate Court by holding that the document in hand was not required by it to pronounce judgment and the same was required to be proved by the plaintiff. It also held that under the provisions of Order 41, Rule 27 CPC, a party cannot be permitted to fill up the lacunae. On these bases, the appeal so filed by the plaintiff was dismissed by learned Appellate Court, so was application filed under Order 41, Rule 27 CPC. 9. I have heard the learned counsel for the appellant and also gone through the records of the case as well as the judgments passed by both learned Courts below. 10. On these bases, the appeal so filed by the plaintiff was dismissed by learned Appellate Court, so was application filed under Order 41, Rule 27 CPC. 9. I have heard the learned counsel for the appellant and also gone through the records of the case as well as the judgments passed by both learned Courts below. 10. A perusal of the judgment passed by the learned trial Court demonstrates that the present appellant was non-suited by learned trial Court on the ground that the entire case of the plaintiff was based upon agreement mark-X, dated 12.3.1996, however, as plaintiff did not legally exhibit the said agreement on record, then in the absence of said written agreement, oral statements of plaintiff could not be taken into consideration and on these bases, learned trial Court held that plaintiff had in fact failed to prove on record that it was entitled to recover said amount from the defendant. It is a matter of record that during the pendency of the appeal before learned Appellate Court, the appellant-corporation moved an application under Order 41, Rule 27 of CPC seeking permission to produce additional evidence to prove agreement dated 12.3.1996. By way of this application, appellant-corporation had in fact prayed that for the just decision of the case and to do complete justice to the parties, the appellant-corporation be permitted to bring the original agreement on record and to prove and exhibit the same as per law, which earlier could not be exhibited due to oversight-inadvertence and lapse on the part of the counsel for the plaintiff-corporation. Learned Appellate Court while affirming the judgment passed by the learned trial Court, dismissed the appeal by holding that since agreement dated 12.3.1996, on the basis of which suit for recovery was filed, had not been proved by the plaintiff-corporation in accordance with law, therefore, the case of the plaintiff in fact falls like the house of cards. The application filed under Order 41, Rule 27 CPC filed by the plaintiff-corporation was rejected by the learned Appellate Court on the ground that the plaintiff-corporation was not entitled to any indulgence at the appellate stage as there was total inaction on the part of plaintiff to prove the agreement in the trial court. It further held that merely placing on record a document did not mean that the same stood proved on record in accordance with law. It further held that merely placing on record a document did not mean that the same stood proved on record in accordance with law. It was further held by learned Appellate Court that the document in issue was not required by the learned Appellate Court to pronounce the judgment, rather same was required to be proved by the plaintiff as entire edifice of the case was based on the said agreement and on these bases. 11. Learned Appellate Court while dismissing the application filed by the appellant-corporation under Order 41, Rule 27, has erred in not appreciating that the right to file first appeal against decree under Section 96 of CPC, is the valuable right of the litigant and jurisdiction of the first Appellate Court while hearing the first appeal is very wide like that of trial Court. In fact, as the first Appellate Court is the final court of fact ordinarily, therefore, a litigant is entitled to full and independent consideration of the evidence at the appellate stage. In this background, the reasons, which have been given by the learned Appellate Court while rejecting the application filed by the appellant-corporation under Order 41, Rule 27 CPC, are not sustainable. Learned Appellate Court lost sight of the fact that the appellant-Corporation had averred in the application as to why it could not file additional evidence earlier in the civil suit and why in fact there had been delay on the part of plaintiff-Corporation in filing such evidence at the appellate stage. Learned Appellate Court further failed to appreciate that the additional evidence being in the nature of a public document i.e. an agreement executed between the plaintiff corporation and defendant and execution of which agreement per se was not even refuted by the defendant in the written statement, the same should have been taken on record. Learned Appellate Court has also not appreciated that the appellant-Corporation being government functionary, as the plaintiff-Corporation is wholly owned and controlled by the State Government, was entitled to legitimately claim more indulgence in such procedural matters on account of their peculiar set up and way of working. However, learned Appellate Court rather than appreciating these aspects of the matter and taking a holistic view thereupon, has dismissed the application so filed by the appellant-Corporation under Order 41, Rule 27 of the CPC in a cryptic manner. However, learned Appellate Court rather than appreciating these aspects of the matter and taking a holistic view thereupon, has dismissed the application so filed by the appellant-Corporation under Order 41, Rule 27 of the CPC in a cryptic manner. Learned Appellate Court has thereafter gone upon to dismiss the appeal so filed by the plaintiff-Corporation. 12. It has been held by Hon’ble Supreme Court in Union of India v. K.V. Lakshman and others, AIR 2016 Supreme Court 3139 that the provisions of order 41, Rule 27 of CPC in fact enables a party to file additional evidence at the stage of first appeal as well as second appeal. If a party, which prefers an application under Order 41, Rule 27 CPC, is able to satisfy learned Appellate Court that there was justifiable reasons for not filing such evidence before the trial Court and that the additional evidence which the party intends to file is relevant and material for deciding the subject-matter of the litigation between the parties, then the Court should allow the party to file such additional evidence. It has to be appreciated that simply because a Court allows one party to file additional evidence in appeal will not by itself mean that the Court has decided the case in favour of such party because if the Appellate Court allows one party to lead additional evidence then said Court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal. 13. The Hon’ble Supreme Court in the abovementioned judgment has held as under:- “This takes us to the next question in relation to the application filed under Order 41, Rule 27 of the Code. In our considered view, the High Court committed another error when it rejected the application filed by appellant under Order 41, Rule 27 of the Code. This application, in our opinion, should have been allowed for more than one reason. First, there was no one to oppose the application. In other words, the respondents were neither served with the notice of appeal and nor served with the application and hence they did not oppose the application. Second, the appellant averred in the application as to why they could not file the additional evidence earlier in civil suit and why there was delay on their part in filing such evidence at the appellate stage. Second, the appellant averred in the application as to why they could not file the additional evidence earlier in civil suit and why there was delay on their part in filing such evidence at the appellate stage. Third, the averments in the application were supported with an affidavit, which remained un-rebutted. Fourth, the application also contained necessary averment as to why the additional evidence was necessary to decide the real controversy involved in appeal. Fifth, the additional evidence being in the nature of public documents and pertained to suit land, the same should have taken on record and lastly, the appellant being the Union of India was entitled to legitimately claim more indulgence in such procedural matters due to their peculiar set up and way of working. It was for all these reasons, we are of the view that the application filed by the appellant under Order 41, Rule 27 of the Code deserved to be allowed and is accordingly allowed by permitting the appellant to file additional evidence. Learned counsel for the respondents, however, contended that the additional evidence is not relevant for deciding the appeal/suit. He also urged that the appellant has not pleased any cause as required under Order 41, Rule 27 to file such evidence at the appellate stage. We are not impressed by this submission in the light of the reasons given supra. This submission is accordingly rejected. Order 41, Rule 27 of the Code is a provision which enables the party to file additional evidence at the first and second appellate stage. If the party to appeal is able to satisfy the appellate Court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are subject-matter of the lis, the Court should allow the party to file such additional evidence. After all, the Court has to do substantial justice to the parties. Merely because the Court allowed one party to file additional evidence in appeal would not by itself mean that the Court has also decided the entire case in his favour and accepted such evidence. Indeed once the additional evidence is allowed to be taken on record, the appellate Court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal.” 14. Indeed once the additional evidence is allowed to be taken on record, the appellate Court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal.” 14. Hon’ble Supreme Court in A. Andisamy Chettiar v. A. Subburaj Chettiar, AIR 2016 Supreme Court 79 has held as under:- “Under the scheme of Code of Civil Procedure, 1908 (for short “the Code”) whether oral or documentary, it is the trial court before whom parties are required to adduce their evidence. But in three exceptional circumstances additional evidence can be adduced before the appellate court, as provided under S. 107(1)(d) read with Rule 27 of Order XLI of the Code. Rule 27 of Order XLI reads as under:- “27. Production of additional evidence in Appellate Court.- (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 pronounce 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.” (emphasis supplied) From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfillment of either of the three conditions mentioned in Rule 27. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfillment of either of the three conditions mentioned in Rule 27. In the case at hand, no application was moved before the trial court seeking scientific examination of the document (Ex.A-4), nor can it be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him. Now it is to be seen whether the third condition, i.e. one contained in clause (b) of sub-rule (1) of Rule 27 is fulfilled or not. In K.R. Mohan Reddy v. Net Work Inc., this court has held as under:- “19. The appellate court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial court, but it will be different if the court itself requires the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the court. But mere difficulty is not sufficient to issue such direction…...” In North Eastern Railway Admn. v. Bhagwan Das, this Court observed thus:- “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 107 CPC, 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…..…” In N. Kamalam (dead) and another v. Ayyasamy and another, this Court, interpreting Rule 27 of Order XLI of the Code, has observed in para 19 as under:- “……. the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal – it does not authorize any lacunae or gaps in the evidence to be filled up. the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal – it does not authorize any lacunae or gaps in the evidence to be filled up. The authority and jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way.” In Union of India v. Ibrahim Uddin and another, this Court has held as under:- “49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out 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…………..” 15. Therefore, in the light of ratio of judgments cited above as well as the facts of the present case, in my considered view, the judgment and decree passed by learned Appellate Court, vide which it has dismissed the application under Order 41, Rule 27 CPC filed by the appellant-corporation to bring on record additional evidence and has also dismissed the appeal filed by the appellant-corporation against the judgment passed by the learned trial Court, are not sustainable both on law and facts and the same are liable to be set aside. The substantial questions of law are answered accordingly. 16. The substantial questions of law are answered accordingly. 16. The present appeal is therefore allowed and the judgment and decree passed by learned Appellate Court, whereby it dismissed the application under Order 41, Rule 27 CPC, as well as appeal filed by appellant-corporation against the judgment and decree of learned trial Court, are set aside and the case is remanded back to the learned Appellate Court to be decided afresh on merit after allowing the appellant-corporation to lead additional evidence as was prayed for in the application under Order 41, Rule 27 CPC in accordance with law subject to appellant-corporation paying cost of Rs. 10,000/- to the defendant. The appellant is directed to put in appearance before learned Appellate Court on 26.09.2016, on which date, learned Appellate Court will issue notice to respondent-defendant and thereafter proceed with the matter in accordance with law. Pending applications, if any, also stands disposed of.