Research › Search › Judgment

Gauhati High Court · body

2020 DIGILAW 174 (GAU)

Julfikar Ali (Md. ) v. Sajia Begum

2020-02-10

SOUMITRA SAIKIA

body2020
ORDER : Soumitra Saikia, J. 1. Mr. S. Sarma, learned counsel assisted by Mr. S.K. Deka and Mr. A. Kashyap, learned counsel for the petitioner. Also heard Mr. S. Dutta, learned counsel for the respondent No. 1. None appears for the legal heirs of erstwhile respondent No. 2 although service of notice is complete on them, when the matter is being called. 2. The revision petitioner has preferred the present petition impugning the order dated 07.10.2015 passed in Application No. 1014/2015 in Title Appeal No. 6/2012 by the Court of the Additional District Judge No. 3, Kamrup (M), Guwahati. 3. The present petitioner as the plaintiff instituted a Title Suit No. 225/2007 for declaration, cancellation of sale deed, recovery of possession and for permanent injunction. The suit was contested by the defendant/respondents by filing their written statements. The learned Civil Judge vide Judgment & Order dated 28.5.2012 dismissed the suit of the plaintiff. Being aggrieved the plaintiff/petitioner preferred an appeal being Title Appeal No. 6/2012 before the Learned Additional District Judge No. 3, Kamrup. The appeal was admitted and the Lower Court Records called for. 4. The petitioner/appellant, before the hearing commenced in the Title Appeal, by an application being Application No. 1014/2015 under Order 41 Rule 27 read with Section 151 CPC filed before the Hon'ble Court sought liberty to bring on record additional evidence as the same was stated to have an important bearing in the matter and was required for proper adjudication of the Title Appeal No. 6/2012. The learned First Appellate Court below after hearing the parties rejected the petition by the impugned order dated 7.10.2015 and fixed the matter for arguments on 7.12.2015. 5. The petitioner has assailed the impugned order on the ground that the same is in violation of the provisions of the Code of Civil Procedure as well as the law laid down by the Hon'ble Supreme Court in a series of judgments. The petitioner contends that the rejection of the application is contrary to the provisions of law inasmuch as under the provisions of Code of Civil Procedure the application seeking permission to bring on additional evidence on oral or documentary ought to have been taken up at the final hearing of the appeal, however by this particular order which is impugned, the learned Court below rejected the application while fixing the matter for arguments on 07.12.2015. As such, the petitioner submits that it is apparent that the application for bringing on additional evidence which ought to have been taken up for final hearing, the petition has been rejected prematurely and the matter has not been considered as per law. The petitioner in support of his contention places reliance on the judgment of the Apex Court in the case of Union of India Vs. Ibrahim Uddin & Anr., reported in (2012) 8 SCC 148 . The petitioner relies on the said judgment in support of his contention that an application for bringing additional evidence on record at the appellate stage is to be heard at the time of final hearing in the appeal. Para 52 of the Judgment is extracted for reference is as under:- "Thus, from, the above, it is crystal clear that an 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, the 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/inexecutable and is liable to be ignored." 6. The petitioner further relies upon the Judgment of the Apex Court in the case of North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das(Dead) by Lrs., reported in (2008) 8 SCC 511 of this Judgment wherein the Apex Court holds that additional evidence is required to be admitted on the conditions laid down which under Order 41 Rule 27 of the CPC only and the said evidence is to be admitted only when the circumstances stipulated are found to be exist. Bhagwan Das(Dead) by Lrs., reported in (2008) 8 SCC 511 of this Judgment wherein the Apex Court holds that additional evidence is required to be admitted on the conditions laid down which under Order 41 Rule 27 of the CPC only and the said evidence is to be admitted only when the circumstances stipulated are found to be exist. The purpose of permitting additional evidence to be considered at the stage of hearing is to satisfy the Court that even though it is able to pronounce a proper judgment, it still considers the additional evidence in the interest of justice so that if there is something which remains obscure should be filled up so that the Court can pronounce the judgment in a more satisfactory way. The learned counsel for the petitioner also relied on the case of Anjana Sarma Vs. Hem Bora, reported in 2015 (2) GLT 1080 to buttress his submissions made above. 7. The learned counsel for the respondent Mr. S. Dutta, although objected to the proposition as contended by the petitioner, but he fairly, submits that the position reflected by the Hon'ble Supreme Court in the aforementioned Judgments is the true and correct position in law. 8. I have heard the learned counsels for the parties and noted the rival arguments and also perused the pleadings and the judgments presented before this Court. It is seen from the case records of the present revision petition that although by way of order dated 16.12.2015 this Court permitted the hearing of the Title Appeal No. 6/2012 to be proceeded with, however, the learned Court below was directed not to deliver the judgment. During the course of arguments it is submitted at the bar that although by interim order dated 16.12.2005, hearing of the title appeal was permitted to be proceeded with, till date the final hearing in the matter has not commenced. 9. Section 107 of the CPC provides that the power of the Appellate Court include the power to take additional evidence and/or to require such evidence to be taken. Subject to the limitations laid down in Section 107, the Appellate Court has the same powers and shall perform as nearly the same duties as may be performed by the Court of original jurisdiction in respect of suits constituted. Subject to the limitations laid down in Section 107, the Appellate Court has the same powers and shall perform as nearly the same duties as may be performed by the Court of original jurisdiction in respect of suits constituted. The said power to take additional evidence is regulated by the provisions of Order 41 Rule 27 of the Code of Civil Procedure. This scrutiny of requirement of admitting additional evidence before the Appellate Court in an appeal pending before it, will have to be decided on the parameters laid down under the Code but at the time of hearing of the appeal. The additional evidence may be admitted by the Appellate Court only when the circumstances laid down under Order 41 Rule 27 are satisfied. The provisions of Section 107 and Order XLI Rule 27 are required to be referred to and are as such extracted as under:- "Section 107-Power of Appellate Court- (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power- (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. Order XLI Rule 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 2[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." 10. Coming to the order impugned in the present proceedings it is seen that by order dated 07.10.2015 the trial Court while dealing with the application filed under Order 41 Rule 27 by the petitioner/appellant, did not elaborate as to how or why the additional evidence sought to be brought in by the petitioner/appellant in title Appeal No. 6/2012, were not relevant for proper adjudication of the said title appeal and/or that the additional evidence was not necessary to render a full and complete judgment in respect of the said Title Appeal No. 6/2012. 11. The learned First Appellate Court below while accepting the objections raised by the respondent/defendants that the said application for production of additional evidence was not after exercise of due diligence and that the petitioner/appellant could not explain why the documents could not be produced at the time when the decree was appealed against, rejected the application filed by the petitioner/appellant under Order 41 Rule 27 by the order dated 07.10.2015 and which order is impugned in the present proceeding. However, the law as interpreted by the Privy Council as well as by the Hon'ble Supreme Court in respect of the manner of adjudicating upon an application under Order XLI Rule 27 of the CPC, the learned Appellate Court was required to render a finding as to whether the additional evidence sought to be brought in, namely, the order 07.01.2012 passed in title Suit No. 826/2006 and order dated 11.12.2012 passed in Misc.(J) 635/2012 (T.S. No. 171/2006) were at all necessary to be considered for a complete adjudication of the issues raised in the title appeal pending before learned First Appellate Court. The learned First Appellate Court rejected the application filed by the petitioner/appellant merely on the consideration of the facts that the petitioner/appellant fail to meet requirements of due diligence in respect of the said additional evidence sought to be brought on record in the title appeal pending. It is seen from the impugned order dated 07.10.2015 that the said application was numbered as petition No. 1014 dated 20.04.2015 and the written objections were filed on 12.06.2015. Thereafter the said application was heard on 07.10.2015. It is seen from the impugned order dated 07.10.2015 that the said application was numbered as petition No. 1014 dated 20.04.2015 and the written objections were filed on 12.06.2015. Thereafter the said application was heard on 07.10.2015. The learned trial Court on the date when the impugned order i.e. 07.10.2015 was passed was not proceeding to hear the title appeal on merits. Consequently, the learned Appellate Court below cannot arrive at a finding that the additional evidences sought to be brought on record was/was not necessary for due consideration for rendering a complete finding on the issues required to be decided in the title appeal pending before the appeal is heard. 12. The law as laid down by the Hon'ble Supreme Court that the consideration of requirement of additional evidences to be permitted to be brought on record was not considered by the learned First Appellate Court below and thereby the impugned order was passed well prior to the learned Appellate Court taking up the title appeal for hearing. Therefore in the impugned order there was no finding by the learned Appellate Court below that the said additional evidences sought to be brought on record was not necessary for a complete adjudication of the matter pending before the learned Appellate below. 13. For an interpretation of the provisions of Order XLI Rule 25, reference may be made to the 'Parsotim case' reported in AIR 1931 PC 143 wherein the Privy Council pointed out that the Appellate Court not only has the power to allow additional evidence if it requires such evidence to enable it to pronounce a judgment, or for any other substantial cause. There may well be cases where even though the Court finds that it is able to pronounce the judgment on the state of the record as it is and it cannot strictly be said that it requires additional evidence to enable it to pronounce a judgment; it still considers that such additional evidence(s) as may be brought in the interest of justice as something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. As such, the question whether to look into the documents sought to be brought in as additional evidence, and whether the same would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Appellate Court at the time of hearing of the appeal on merits. 14. As the learned Appellate Court below justified its order of rejecting the application filed by the petitioner/appellant, it erred in considering the matter, seeking to bring in additional evidence, well before the final hearing of the matter while fixing the matter for arguments at a much later date. As such, in view of the law laid down by the Hon'ble Supreme Court it will be just and proper and in the interest of appropriate adjudication of the matter that the order dated 7.10.2015 impugned in the present revision petition be interfered with and the matter be remanded back to the learned Appellate Court below to re-decide the application seeking to bring in additional evidence afresh and at the time of hearing of the title appeal. 15. Accordingly, the impugned order dated 7.10.2015 passed in Application No. 1014/2015 in Title Appeal No. 6/2012 by the Learned Additional District Judge No. 3 Kamrup (M) is hereby set aside and the matter is remanded back to the learned Appellate Court below to re-hear and re-decide the application seeking to bring additional evidence by the petitioner/appellant at the time of final hearing of the matter after hearing all the parties to the lis. The parties are directed to appear before the learned Appellate Court below on 27th March, 2020. 16. The Revision Petition is, accordingly, disposed of in terms of the above.