Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 361 (GAU)

Nipesh Das v. Amulaya Das

2016-05-04

N.CHAUDHURY

body2016
JUDGMENT : In this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 07.04.2015 passed by learned Civil Judge, Karimganj in title appeal No. 3/2013 rejecting the application of the present petitioner filed under Order XLI Rule 27 of the Code of Civil Procedure. 2. The opposite parties, as plaintiffs, instituted title suit No. 125/2010 in the court of learned Munsiff No. 1 at Karimganj praying for a decree declaring their right, title and interest and also for permanent injunction restraining the defendants from dispossessing the plaintiffs from the suit land. 3. The defendants No. 1 and 2 appeared and submitted written statement and contested the case. Ultimately the learned trial court by his judgment and decree dated 21.11.2012 decreed the suit in entirety and being aggrieved thereby, the defendants preferred title appeal No. 3/2013 in the court of learned Civil Judge at Karimganj. During pendency of the appeal, the appellants also moved an application under Order XLI Rule 27 of the Code of Civil Procedure seeking leave to adduce additional evidence so as to exhibit Patta and Khatian with respect to the suit land and also prayed for an order for appointing Survey Commissioner to demarcate the land between the plaintiffs and defendants. The opposite parties herein being the respondents filed an objection against the aforesaid application which was eventually registered as Misc. Case No. 78/2014 and prayed that the application does not have any cause of action and the same deserves to be rejected. The learned trial court after hearing both sides passed the impugned order dated 07.04.2015 thereby rejecting the application filed by the petitioners but in so doing, no perceptible reason whatsoever was recorded. The order dated 07.04.2015 is quoted below for ready reference:- “Date 7.4.2015 Both the sides are present. Learned counsel Made a shift of ground not from in the petition No. 354/10. Revenue settlement documents or record, on perusal it appears that the memorandum of appeal was filed on 7.1.2013 and the petition No. 354/10 was filed on 1.9.2014 i.e. after 1½ years. Further, the ground set forth in the aforesaid petition No. 354/10 is not in consonance with the Order 27, Rule 1(a), 1(aa) and 1(b). Hence, this petition is rejected. Misc. case stands disposed of.” This order dated 07.04.2015 has been challenged in the present revision petition by the unsuccessful appellants. 4. Further, the ground set forth in the aforesaid petition No. 354/10 is not in consonance with the Order 27, Rule 1(a), 1(aa) and 1(b). Hence, this petition is rejected. Misc. case stands disposed of.” This order dated 07.04.2015 has been challenged in the present revision petition by the unsuccessful appellants. 4. I have heard Mr. N Dhar, learned counsel for the petitioner and Mr. AD Choudhury, learned counsel for the opposite parties. I have perused the plaint, the written statement, the trial court judgment and application filed under Order XLI Rule 27 and the corresponding objection filed there-against. I have also perused the order dated 07.04.2015. 5. Mr. N Dhar, learned counsel for the petitioner, would argue that the learned first appellate court does not appear to have applied mind to the application and has mechanically rejected the same without making any endeavour to see as to whether the documents sought to be brought on record are really necessary for adjudication in the matter in dispute. According to him, once an application is filed before the appellate court for adducing additional evidence in that event, it is the duty of the court to see whether such document is at all required and this can be done only when the applicability of the document in question are considered while examining the merit of the appeal. 6. Per contra, Mr. AD Choudhury, learned counsel for the opposite parties, would argue that although the learned first appellate court has not disclosed the reason for rejecting the application but he has made the correct indication that the appellant did not disclose any reason in the application within the meaning of Clause (a), Clause (aa) and Clause (b) of Rule 27 of the Order XLI of the Code of Civil Procedure. According to him, if the application under Order XLI Rule 27 is perused, it would show that the petitioners have miserably failed to bring their case within the ambit of any provision of the aforesaid law. He submits that leading evidence at appellate stage is generally prohibited. According to him, if the application under Order XLI Rule 27 is perused, it would show that the petitioners have miserably failed to bring their case within the ambit of any provision of the aforesaid law. He submits that leading evidence at appellate stage is generally prohibited. Clause (a), Clause (aa) and Clause (b) are only exceptions when such prohibition does not operate and so when a party files an application under Order XLI Rule 27 of the Code of Civil Procedure, it is his duty to bring the case within any of the aforesaid exceptions so as to escape the rigour of prohibition mandated under Order XLI Rule 27 of the Code of Civil Procedure. In the instant case, the petitioner has miserably failed to discharge his burden and so learned first appellate court has not committed any jurisdictional error in rejecting the application by the impugned order. According to him, no factual substratum having been established by the defendants in their written statement, no kind of evidence can be allowed to be adduced in regard to the Patta and Khatian as mentioned in the aforesaid application. With these submissions, he would argue that the revision petition is liable to dismissed. 7. In the case of K. Venkataramiah v. Seetharama Reddy & ors ( AIR 1963 SC 1526 ), the Paragraph 16 gives a specific guideline in regard to treatment of application under Order XLI Rule 27 of the Code of Civil Procedure and so the same is quoted below for ready reference:- “16. In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy's age if the entries in the admission registers of the School were made available. It was vehemently urged by the learned Counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence "to enable it to pronounce judgment". It was vehemently urged by the learned Counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence "to enable it to pronounce judgment". The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Apart from this, it is well to remember 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. Such a case will be one for allowing additional evidence "for any other substantial cause" under R. 27(1)(b) of the Code.” 8. In the case of State of Rajasthan v. T.N. Sahani and ors reported in (2001) 10 SCC 619 , the Hon’ble Supreme Court considered the aforesaid judgment of the Hon’ble Supreme Court delivered in the year 1963 and reiterated the same view in paragraph 4. Paragraph 4 is accordingly quoted below for ready reference:- “4. It may be pointed out that this Court as long back as in 1963 in K. Venkataramiah v. Seetharama Reddy pointed out the scope of unamended provision of Order 41, Rule 27(c) that though there might well be cases where even though the Court found that it was able to pronounce the judgment on the State of the record as it was, and so, it could not be required additional evidence to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. This is entirely for the Court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to be Court to look into the documents and for that purpose amended provision of Order 41, Rule 27(b), Code of Civil Procedure can be invoked. So the application under Order 41, Rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view, would be inappropriate. Further the reason given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly set aside. The application is restored to its file. The High Court will not consider the appeal and the application and decide the matter afresh in accordance with law.” 9. In the case of Union of India v. Ibrahim Uddin and anr reported in (2012) 8 SCC 148 , the law regarding Order XLI Rule 27 of the Code of Civil Procedure came up for consideration once again. The Hon’ble Supreme Court considered all the judgments previously passed in this regard both by the Privy Council as well as by the Hon’ble Supreme Court and thereupon held the view that true test would be to determine as to whether appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Paragraphs 49 and 50 of this judgment are quoted below for ready reference:- “38. An application under Order XLI Rule 27 Code of Civil Procedure 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. Paragraphs 49 and 50 of this judgment are quoted below for ready reference:- “38. An application under Order XLI Rule 27 Code of Civil Procedure 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 Ors. and Natha Singh and Ors. v. The Financial Commissioner, Taxation, Punjab and Ors. 39. In Parsotim Thakur and Ors. v. Lal Mohar Thakur and Ors. it was held: The provisions of Section 107 as elucidated by Order 41, R. 27 are clearly not intended to allow a 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. Under Rule 27, Cl. (1) (b) it is only where the appellate Court "requires" it (i.e. finds it needful). ...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", it may well be that the defect may be pointed out by a party, or that a party may move the Court to apply the defect, but the requirement must be the requirement of the court upon its appreciation of evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing, and under R.29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. The power so conferred upon the Court by the Code ought to be very sparingly exercised and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case. 10. Order XLI Rule 27 of the Code of Civil Procedure really bars evidence at appellate stage. But to secure the ends of justice, some exceptions have been carved out in Order XLI Rule 27 whereby Appellate Court has been vested with power to permit additional evidence even at the appellate stage. These special circumstances are enumerated in Clause (a), (aa) and (b). While there is no necessity for interpretation of Clause (a) and Clause (aa), there is need for exercise of judicial discretion while exercising power under Clause (b) as it leaves wide power and discretion on the first appellate court. It shows that if an Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce a judgment, or for any other substantial cause, it may allow such evidence or document to be produced, or witness to be examined. Such a provision can be compared with the provision of Section 30 of the Code of Civil Procedure which also empowers the Court to make such orders as may be necessary or reasonable including direction to produce document and adduce evidence by issuing summons to the concerned persons and also to enforce his attendance. Explaining the scope and object of Section 30 of the Code of Civil Procedure, the Hon’ble Supreme Court has time and again had occasion to remind the learned courts below to take recourse to the provision of section 30 in civil litigation so as to ascertain truth in a pending dispute. Appellate court is also a court and Section 107 of the Code of Civil Procedure has provided wide power on it which includes the power of trial court as well. Under such circumstances, even the appellate court cannot escape the mandate of Section 30 of the Code of Civil Procedure. Appellate court is also a court and Section 107 of the Code of Civil Procedure has provided wide power on it which includes the power of trial court as well. Under such circumstances, even the appellate court cannot escape the mandate of Section 30 of the Code of Civil Procedure. The indication made in Order XLI Rule 27 of the Code of Civil Procedure is also in the same breadth as the message contained in Section 30 of the Code of Civil Procedure. 11. In view of such provision of Section 30, Section 107 and the provision of Order XLI Rule 27 of the Code of Civil Procedure, it appears that once an appeal is admitted by the learned court and thereafter in course of hearing it is brought to the notice of the court that some other evidence either oral or documentary are necessary to enable the court to pronounce an effective judgment in its voyage to decipher the truth, the court shall not hesitate to do the same. But such an action is possible only when the appellate court is considering the merit of the appeal. If the materials placed before an Appellate Court are sufficient to pronounce a judgment without taking recourse to any additional material in that event, learned first appellate court may hold so but if while examining the materials available on record, it appears to the learned court of appeal that the piece of evidence sought to be brought on record may be relevant and necessary for proper adjudication of the dispute in that event, the learned court of appeal is duty bound to take recourse to provision of Order XLI Rule 27 of the Code of Civil Procedure. It is for these reasons, the Privy Council as well as the Hon’ble Supreme Court had been all along urging the courts of appeal not to decide an application under Order XLI Rule 27 of the Code of Civil Procedure in isolation but to decide the same while examining the merit of the appeal. Despite all these judgments, the learned first appellate court in the present case has passed the impugned order rejecting application under Order XLI Rule 27 of the Code of Civil Procedure without examining as to whether the document sought to be brought on record are really necessary or relevant for adjudication of the matter in dispute pending before him. Despite all these judgments, the learned first appellate court in the present case has passed the impugned order rejecting application under Order XLI Rule 27 of the Code of Civil Procedure without examining as to whether the document sought to be brought on record are really necessary or relevant for adjudication of the matter in dispute pending before him. The same not having been done, the order has been vitiated by jurisdictional error. Accordingly, it is set aside. The matter is sent back to the learned first appellate court to consider the same afresh while deciding the main appeal. The revision petition stands allowed. 12. No order as to costs. 13. Interim order, if any, stands automatically vacated.