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2017 DIGILAW 145 (CAL)

Abdul Kalam v. Jaibusessa Bewa

2017-02-06

ASHIS KUMAR CHAKRABORTY

body2017
JUDGMENT : ASHIS KUMAR CHAKRABORTY, J. 1. The subject matter of challenge in this revisional application is the order dated February 20, 2016 passed by the learned Additional District Judge, Jangipur, Murshidabad in Title Appeal No. 26 of 2008. By the impugned order, the learned Appellate Court below rejected the application filed by the revisional petitioners to disclose the information slips relating to RS Khatian No. 556 and RS Khatian No. 239 on the ground that the application of the petitioners does not reflect the legal provision under which the petition was filed and that there is gross contradiction in the contents of body of the application and the prayer portion. The learned Court below further held that the application of the petitioners is defective. According to the petitioners, as the plaintiffs in the suit, they produced the information slips in respect of the said RS Khatian No. 556 and RS Khatian No. 239 and the same were dealt with by the defendant's witness DW-1 in his affidavit-in-chief, but due to inadvertent mistake they omitted to exhibit the said information slips before the learned Trial Judge. It was further urged on behalf of the petitioners that the production of the information slip is essential for pronouncement of judgment in the appeal. 2. Mr. Partha Pratim Roy, learned advocate appearing for the petitioners submitted that in the instant case the information slips in respect of the said RS Khatian No. 556 and RS Khatian No. 239 were already disclosed by the plaintiffs-petitioners before the learned Trial Judge and the same was dealt with by the opposite parties defendants through their witness DW-I. He urged that in the present case, the provision which is applicable for disclosure of the said documents is Order 41 Rule 27(1)(b) of the Code of Civil Procedure (in short "the Code") to enable the learned Appellate Court below to pronounce judgment in the appeal, or for any other substantial cause. According to Mr. Roy, it is settled law that when an application is filed under Order 41 Rule 27 of the Code the same has to be considered at the time of hearing of the appeal on merits so as to find out whether the documents and/or evidence sought to be adduced have any bearing on the issues involved. According to Mr. Roy, it is settled law that when an application is filed under Order 41 Rule 27 of the Code the same has to be considered at the time of hearing of the appeal on merits so as to find out whether the documents and/or evidence sought to be adduced have any bearing on the issues involved. In this regard, he relied on the decision of the Supreme Court in the case of Union of India v. Ibrahim Uddin, reported in (2012) 8 SCC 148 . It was strongly contended that the learned appellate Court below ought to have taken up the application filed by the plaintiffs-petitioners seeking leave to disclose the said documents and exhibiting the same at the time of hearing of the appeal, but the learned Court below committed an error of law in deciding the said application before the commencement of hearing of the appeal without arriving at a finding that the said information slips had no bearing on the issues involved in the appeal. Mr. Roy further submitted that it is well settled law that the omission to mention, at the caption of an application, the provisions of law under which the application is made is not fatal and such omission cannot invite dismissal of the application in limine. It was strenuously urged that findings of the learned Court below that there is contradiction in the body of prayer portion the application and that the said application is defective are patently erroneous. On these grounds, it was urged on behalf of the petitioners that the impugned order passed by the learned Court be set aside and the matter be remitted to the learned Court below for deciding the application under Order 41 Rule 27 of the Code afresh at the time of hearing of the appeal. 3. Mr. Md. Nweezaman, learned advocate appearing for the opposite parties however, strenuously contended that the revisional application filed by the petitioner is devoid of any merit and the impugned suffers no infirmity. He, however, did not dispute that the omission on the part of the petitioner to mention the provisions of Order 41 Rule 27 of the Code, at the caption of the said application could not be a ground for dismissal of the said application. Mr. He, however, did not dispute that the omission on the part of the petitioner to mention the provisions of Order 41 Rule 27 of the Code, at the caption of the said application could not be a ground for dismissal of the said application. Mr. Nweejaman also did not dispute that the learned appellate Court below took up the application filed by the petitioner to disclose the aforementioned information slips before the appeal was taken up for hearing. He, however, submitted that the additional documents sought to be proved by the petitioners before the learned Appellate Court below have no bearing on the issues involved in the appeal and, therefore, the impugned order suffers from no infirmity of law calling for any interference by this Court in exercise of revisional jurisdiction. 4. I have considered the facts of the case and the materials on record and the submissions advanced by the learned counsel appearing for the respective parties. 5. It is settled law that wrong description of the legal provision at the caption of an application or any omission to mention the legal provision, at the caption of an application, under which the same is made, is not material for the decision of the application on merit. Accordingly, the decision of the learned Appellate Court below in the impugned order to reject the aforementioned application filed by the petitioner on the ground of omission to mention the legal provision at the caption of the said application is patently erroneous in law. Further, from a reading of the petitioners' application to adduce additional evidence, as disclosed in this revisional application, it is clear beyond any doubt that there is no contradiction in the body and the prayer portion of the application. Accordingly, I cannot but hold that the findings of the learned Appellate Court below in the impugned order that the application filed by the petitioners to disclose additional evidence is vitiated by material irregularity. Further, as held by the Supreme Court in the case of Ibrahim Uddin (supra), it is settled law that an application under Order 41 Rule 27 of the Code, by a party to adduce additional evidence has to be considered at the time of hearing of the appeal on merits so as to find out whether the evidence sought to be adduced have any bearing on the issues involved. However, in the present case, undisputedly the learned appellate Court below decided the application filed by the petitioners for disclosing to adduce additional evidence under Order 41 Rule 27(1)(b) of the Code before the appeal was taken up for hearing. Therefore, I find that the petitioners are justified to contend that the learned Appellate Court below committed an error of law in rejecting their application to adduce additional evidence without any finding that the said additional evidence has no bearing on the issues to be decided in the appeal. 6. For all the foregoing reasons, the impugned order passed by the learned Court below cannot be sustained. The revisional application, being CO. 1430 of 2016 is allowed and the impugned order dated February 20, 2016 passed by the learned Additional District Judge, Jangipore, Murshidabad, in Title Appeal No. 26 of 2008 is set aside. 7. The matter is remitted back to the learned Appellate Court below with a direction to decide the application filed by the petitioners to disclose additional evidence afresh at the time of hearing of the appeal being Title Appeal No. 26 of 2008 in the light of the settled principle of law. In order to obviate all ambiguities and future complication the petitioners are directed to amend their application filed before the learned Appellate Court below by mentioning appropriate provision of law at the caption of the said application, within a period of two weeks from the date of this judgment. 8. However, there shall be no order as to costs. Urgent certified copy of this judgment, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.