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2019 DIGILAW 2788 (ALL)

Rajani Bala Rastogi v. Sanjay Kumar Gupta

2019-12-17

NEERAJ TIWARI

body2019
JUDGMENT : 1. Heard learned counsel for the petitioner and Sri Lallan Verma, learned counsel for the respondent. 2. By way of present petition, petitioner is assailing the order dated 11.09.2019 passed in S.C.C. Revision No. 1 of 2018 (Smt. Rajani Bala Rastogi Vs. Sanjay Kumar Gupta). 3. Learned counsel for the petitioner submitted that petitioner has filed an application under Order 41 Rule 27 of CPC for production of additional evidence in Appellate Court which was rejected by the Revisional Court vide order dated 11.09.2019. Apart from many other grounds, he has submitted that this application can only be decided at the time of final hearing of the Revision and not before that by a separate order. In support of his contention, he has placed reliance upon the judgment of Apex Court passed in the matter of State of Rajasthan Vs. T.N. Sahani and others, (2001) 10 SCC 619 decided on 12.10.2000 and also judgment of this Court passed in the matter of Smt. Sandal (Deceased) and another Vs. Smt. Hamida and others, 2018 (3) ADJ 415 decided on 04.09.2017 and submitted that in the light of provisions of Order 41 Rule 27 of CPC as well as judgment given by the Apex Court in the matter of State of Rajasthan (Supra) and by this Court in the matter of Smt. Sandal (Deceased) (Supra), impugned order is bad in law and is liable to be set aside. 4. Sri Lallan Verma, learned counsel for the respondent has vehemently opposed the argument of counsel for the petitioner and submitted that it is not open for the revisionist to file additional evidence at any time. In support of his contention, he has placed reliance upon the judgment of the Apex Court in the matter Basayya I. Mathad Vs. Rudrayya S. Mathad and others, 2008 (71) ALR 178 decided on 24.01.2008. 5. I have considered the rival submissions made by learned counsel for the parties as well as judgments relied upon and perused the record. 6. There is no factual dispute in the argument of counsel for the petitioner, therefore, I have proceeded to consider the legal submissions made by counsel for the petitioner and judgments relied upon them. 7. 5. I have considered the rival submissions made by learned counsel for the parties as well as judgments relied upon and perused the record. 6. There is no factual dispute in the argument of counsel for the petitioner, therefore, I have proceeded to consider the legal submissions made by counsel for the petitioner and judgments relied upon them. 7. The Apex Court in the matter of State of Rajasthan (Supra) has clearly stated that the application for additional evidence can only be decided at the time of final hearing of the Revision and not before final hearing of the Revision by a separate order. Relevant paragraph No. 4 of the judgment is quoted below:- "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, additional evidence could not be required 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 the court to look into the documents and for that purpose amended provision of Order 41 Rule 27 (b) CPC 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. 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 now consider the appeal and the application and decide the matter afresh in accordance with law." 8. The same view was also taken by this Court in the matter of Smt. Sandal (Deceased) (Supra). Relevant paragraph Nos. 13, 14 & 15 of the said judgment is quoted below:- "13. As to the stage of consideration it has been held that even if an application for additional evidence under Order 41 Rule 27 CPC is filed during the pendency of the appeal, it has to be heard at the time of final hearing of the appeal i.e. at the stage when it is possible for the court to reach at its conclusion, after appreciating the evidence already on record that the additional evidence was required to be admitted on record in order to pronounce the judgment or for any other substantial cause. 14. The reason behind is that in case such an application is considered and allowed at a prior stage, the order would be a product of total and complete non application of mind to the question as to whether such evidence is required to be taken on record to pronounce the judgment or not. 15. Thus from a careful reading of the above noted judgment, the principles laid down therein as noted above, the law relating to admission of additional evidence under Order 41 Rule 27 CPC is crystal clear. The Court for taking such evidence on record has to exercise its judicial discretion circumscribed by the limitations provided under the statutory provision and that such a consideration can only be made at the time of final hearing of the appeal as it would not be possible for the first appellate court to appreciate the evidence already on record and to record reasons for doing so, at a prior stage." 9. The judgment of Apex Court in the matter of Basayya I. Mathad (Supra) is not contrary to the judgments of the Apex Court passed in the matter of State of Rajasthan (Supra) and in fact the judgment of Basayya I. Mathad (Supra) is only saying that parties to the lis are not entitled to produce additional evidence as of course or routine but must satisfy the conditions stated in Sub-Clause (a) & (aa) of Order 41 Rule 27 of CPC. Relevant paragraph of the judgment of Basayya I. Mathad (Supra) is quoted below:- "8. .................. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. It is clear that parties to the lis are not entitled to produce additional evidence as of course or routine but must satisfy the conditions stated in sub-clauses (a)&(aa). Admittedly, such recourse has not been resorted to neither by the party concerned nor adhered those principles by the High Court. Paragraph 3 of his order shows that the learned Judge verified the document produced on his direction without complying the mandate as provided under Rule 27 of Order XLI. Hence, we are of the view that the finding of the learned Judge based on a document produced at the time of argument de hors to Rule 27 referred above cannot be sustained in the eye of law. In such circumstances, his ultimate conclusion treating the suit property as a family property partible among the members of the family is also liable to be set aside. In fact, sub-clause (2) of Rule 27 mandates that wherever additional evidence is allowed to be produced by an Appellate Court, it shall record the reason for its admission. It is needless to mention that the High Court neither followed those conditions for production of additional evidence nor recorded the reason for basing reliance on the same." 10. In fact, sub-clause (2) of Rule 27 mandates that wherever additional evidence is allowed to be produced by an Appellate Court, it shall record the reason for its admission. It is needless to mention that the High Court neither followed those conditions for production of additional evidence nor recorded the reason for basing reliance on the same." 10. Law laid down by the Apex Court in the matter of Basayya I. Mathad (Supra) can be very well raised by the respondent-plaintiff at the time of final hearing objecting the application filed under Order 41 Rule 27 of CPC, but so far as law laid down by the Apex Court in the matter of State of Rajasthan (Supra), it is very much clear that the application filed under Order 41 Rule 27 of CPC can be decided at the time of final hearing of Revision. 11. In the present case, there is no dispute on the point that the application of petitioner-revisionist has been filed under Order 41 Rule 27 of CPC for producing additional evidence which was decided prior to finally deciding the Revision whereas in the light of law laid down by this Court, it should have been heard and decided at the time of final hearing of Revision i.e. at the stage when it is possible for the Court concerned to consider this fact that whether additional evidence is required to be taken on record to decide the case or for substantial justice, therefore, impugned order is bad in law and is liable to be set aside. 12. With the aforesaid observations, impugned order is hereby set aside and petition is allowed. No order as to costs. 13. Revisional Court is directed to decide the application of the Revisionist filed under Order 41 Rule 27 of CPC in the light of law laid down by the Apex Court as well by this Court.