Research › Search › Judgment

Calcutta High Court · body

2018 DIGILAW 145 (CAL)

Bimal Chandra Mukhopadhyay v. Pashupati Sengupta

2018-01-18

HARISH TANDON

body2018
JUDGMENT : 1. This revisional application is directed against the order dated September 1, 2017 passed by the Ninth Court of Additional District Judge, Alipore in Title Appeal No. 392 of 1995 by which an application under Order 41 Rule 27 of the Code of Civil Procedure filed by the petitioner was rejected with costs of Rs.5,000/-. 2. Indubitably a suit for declaration of title and permanent injunction stood decreed ex parte against the present petitioner. The judgment and decree is assailed by the petitioner before the court of appeal below which gave rise to registration of Title Appeal No. 392 of 1995. It is a matter of great concern that the appeal, which was filed in the year 1995, has not reached to its logical end in the first part of the year 2018. 3. An application for production of additional evidence was taken out by the petitioner on March 31, 2015. It is alleged that all those documents were filed in the trial court but due to transfer of the suit from one Judge to another, they were mysteriously lost from the record. The aforesaid facts can be substantiated as the judgment and decree passed by the trial court does not contain any reference of those documents. 4. It is further alleged that the petitioner was not aware of the transfer of the suit as no notice was served upon him and, therefore, despite due diligence those documents could not be produced before the decree was passed. 5. The court of appeal below dismissed the said application firstly on the ground that the said application had been taken out after a gap of 20 years and secondly there is no explanation given in the said application for non-production of such evidence at the time of trial. The meaningful reading of the impugned order would give sufficient indication that the court was swayed more by the delay in taking out an application for production of additional evidence than on the merit thereof. 6. At the threshold, a point was taken that a party who did not adduce evidence in the trial court cannot be permitted to adduce additional evidence under Order 41 Rule 27 of the Code of Civil Procedure. 7. 6. At the threshold, a point was taken that a party who did not adduce evidence in the trial court cannot be permitted to adduce additional evidence under Order 41 Rule 27 of the Code of Civil Procedure. 7. The aforesaid point was taken for the reason that the word ‘additional’ connotes the prior existence of a thing and something to be united and/or joined with it to make it a single one. The petitioner relies upon a judgment of the Supreme Court in the case of Jaipur Development Authority Vs. Kailashwati Devi reported in (1997) 7 SCC 297 , in support of the contention that on identical facts and similar point having taken therein, the Apex Court held that an additional evidence can be permitted to be produced by a person who suffered an ex parte decree. In other words, the person who did not adduce evidence in the trial court can be permitted to produce additional evidence under Order 41 Rule 27 of the Code. The relevant observations made in the said report is reproduced as under:- 6. The intention of the sub-rule, in our view, is that a party who, for the reasons mentioned in the sub-clause, was unable to produce the evidence in the trial court, should be enabled to produce the same in the appellate court. The sub-rule mentions the conditions which must be complied with by the party producing the additional evidence, namely, 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" in the trial court. It is not one of the conditions that the party seeking to introduce "additional" evidence must have also been one who has led some evidence in the trial court. Such a view amounts to introducing an additional condition not contemplated by the sub-rule. No distinction was intended by the sub-rule between a party who has produced some evidence in the trial court and one who has adduced no evidence in the trial court. All that is required is that the conditions mentioned in the body of the sub- rule must be proved to exist. It is not permissible to restrict the sub- clause (aa) for the benefit of only those who have adduced some evidence in the trial Court. 7. All that is required is that the conditions mentioned in the body of the sub- rule must be proved to exist. It is not permissible to restrict the sub- clause (aa) for the benefit of only those who have adduced some evidence in the trial Court. 7. The view taken by the Gauhati High Court is not therefore correct. A similar view taken by the Lahore High Court in Gurbakash Singh v. (Finn) Shankar Das, AIR (1936) Lahore 71 is also not correct. 8. In view of the enunciation of law laid down in the said report, a party who suffered an ex parte decree or a party who could not lead evidence in the trial court, may apply for production of additional evidence before the appellate court and if he/she satisfy the court that his/her case falls within the circumference of clause (a), clause (aa) and clause (b) of Order 41 Rule 27 of the Code, the court cannot deny him/her to adduce additional evidence. 9. The second point which this court feels necessary to consider even after holding that the petitioner can adduce additional evidence despite having suffered ex parte decree is whether any case within the ambit of the conditions enshrined under Order 41 Rule 27 of the Code has been made out. 10. As indicated in the preceding paragraphs, the court of appeal below was swayed by the delay of 20 years in filing an application for production of additional evidence. If a party is blamed for non-taking such steps, the court should also be equally blamed for keeping the matter pending for more than 20 years. 11. Order 41 Rule 27 does not postulate any time limit within which such application is to be filed. The said application can be taken out before the appellate court meaning thereby in a pending appeal and it is obligatory on the appellate court to decide the said application on the parameters set forth under Order 41 Rule 27 of the Code. 12. It leads to another ancillary point as to whether the said application should be entertained in isolation with an appeal, in other words, whether the said application is required to be taken up along with the appeal and not interior thereto. 13. 12. It leads to another ancillary point as to whether the said application should be entertained in isolation with an appeal, in other words, whether the said application is required to be taken up along with the appeal and not interior thereto. 13. Upon meaningful reading of the provisions contained under Order 41 Rule 27 of the Code, more particularly, clause (b) thereof, there is no hesitation in my mind that if the appellate court requires such additional evidence for the purpose of delivery of judgment, it logically infers that the said application should be heard along with an appeal. 14. The aforesaid proposition can further be fortified from another judgment of the Apex Court rendered in the case of Union of India (UOI) Vs. Ibrahim Uddin and Anr. reported in (2012) 8 SCC 148 in the following words:- 49. An application under Order 41 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.). 50. 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. 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, Clause (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 Rule 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.” 51. In Arjan Singh v. Kartar Singh and Ors. (supra), this Court held: “7. …. If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent... 8. ….The order allowing the Appellant to call the additional evidence is dated 17.8.1942. The appeal was heard on 24.4.1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing the judgment.” 52. 8. ….The order allowing the Appellant to call the additional evidence is dated 17.8.1942. The appeal was heard on 24.4.1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing the judgment.” 52. Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/in executable and is liable to be ignored. 15. It is thus axiomatic to say that the court must apply its judicial mind on the merit of the said application and record proper reasons whether any case has been made out which squarely comes within the periphery of the clauses contained under Order 41 Rule 27 of the Code. It is equally important that the appellate court should take up the said application along with the appeal in view of the ratio laid down in the Union of India (UOI) Vs. Ibrahim Uddin and Anr. (supra). 16. This court, therefore, find that the impugned order suffers from infirmity and/or illegality. The same is hereby set aside. 17. The court of appeal below is directed to consider the said application along with an appeal and shall dispose of the same by recording proper reasons. 18. For abundant precaution, this court makes it clear that this court has not gone into the merit or demerit of the application and the order impugned is set aside only on technical ground and, therefore, any observations made hereinabove shall not have any persuasive value at the time of disposal of the said application on merit. 19. 18. For abundant precaution, this court makes it clear that this court has not gone into the merit or demerit of the application and the order impugned is set aside only on technical ground and, therefore, any observations made hereinabove shall not have any persuasive value at the time of disposal of the said application on merit. 19. Taking into consideration the longevity of the pending appeal, this court requests the court of appeal below to show endeavour to dispose of the appeal as expeditiously as possible without granting unnecessary adjournments to either of the parties and preferably within four months from the date of communication of this order. 20. With these observations, the revisional application is disposed of. No order as to costs.