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2022 DIGILAW 306 (JHR)

Purna Chandra Mahato v. Umashankar Mahato

2022-03-15

RAJESH SHANKAR

body2022
JUDGMENT : 1. The present writ petition has been filed for quashing the order dated 27.11.2019 passed by the learned District & Additional Sessions Judge-I, Ghatshila in Civil Appeal No. 42 of 2018 whereby an application filed by the petitioners under Section 107(1)(d) read with Order XLI Rule 27 of the CPC for adducing additional evidence at the appellate stage has been rejected. 2. Learned counsel for the petitioners submits that Partition Suit No. 06 of 2009 was preferred by the petitioners’ mother against the defendants claiming her share over the suit land. During pendency of the said suit, the petitioners’ mother i.e. the original plaintiff died and thereafter the petitioners were substituted as the plaintiffs. The said suit was dismissed vide judgment dated 27.04.2018 passed by the Civil Judge (Sr. Div.)-I, Gahtshila. Aggrieved thereby, the petitioners preferred Civil Appeal No. 42 of 2018 before the Court of the learned District Judge-I, Ghatshila. During pendency of the said appeal, the petitioners filed two applications dated 29.05.2019 & 21.08.2019 under Section 107(1)(d) read with Order XLI Rule 27 of the CPC claiming that the said documents were not available during pendency of the said suit and they luckily traced out the same only after death of the original plaintiff. The respondents objected the said applications filed by the petitioners and ultimately the same were dismissed vide order dated 27.11.2019. It is further submitted that the learned Court below failed to appreciate that the petitioners had sufficient reason for not adducing the said documents as evidence during pendency of the said suit. Only after death of the original plaintiff i.e. the mother of the petitioners, they found the said documents, which were kept in a mud pot (‘Handi’) and immediately thereafter the applications were filed by them before the appellate Court under Section 107(1)(d) read with Order XLI Rule 27 of the CPC to bring those documents on record. 3. Heard learned counsel for the petitioners and perused the relevant materials available on record. To appreciate the said contention of learned counsel for the petitioners, it would be appropriate to go through the provisions of Order XLI Rule 27 of the CPC which read as under: “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 (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.” 4. As per the provisions of Order XLI Rule 27 of the CPC, no additional evidence is permitted to be produced by either of the parties in the Appellate Court. However, three exceptional situations have been provided under which the Appellate Court may allow such evidence or document to be produced or any witness to be examined. Sub-rule 1(a) of Rule 27 permits the production of evidence at appellate stage when the Court which has passed the decree, has refused to admit evidence which ought to have been permitted. Sub-rule 1(aa) of Rule 27 of the CPC provides that even after exercising due diligence, if the party seeking to produce additional evidence is able to establish that such evidence was not within his knowledge or the same could not be produced by him at the time of passing of decree even after exercising due diligence, the Appellate Court may allow for production of evidence even at the appellate stage. Sub-rule 1(b) of Rule 27 of the CPC gives discretion to the Court to require any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial cause. 5. I have also perused the judgment of the Hon’ble Apex Court rendered in the case of A. Andisamy Chettiar Vs. A. Subburaj Chettiar reported in (2015) 17 SCC 713 wherein Their Lordships while referring to various earlier judgments on the issue of production of additional evidence at appellate stage, has held as under: “12. 5. I have also perused the judgment of the Hon’ble Apex Court rendered in the case of A. Andisamy Chettiar Vs. A. Subburaj Chettiar reported in (2015) 17 SCC 713 wherein Their Lordships while referring to various earlier judgments on the issue of production of additional evidence at appellate stage, has held as under: “12. From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that the parties are not `entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfilment of either of the three conditions mentioned in Rule 27. In the case at hand, no application was moved before the trial court seeking scientific examination of the document (Ext. A-4), nor can it be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him. Now it is to be seen whether the third condition i.e. one contained in clause (b) of sub-rule (1) of Rule 27 is fulfilled or not. 13. In [K.R. Mohan Reddy v. Net Work Inc., (2007) 14 SCC 257 ] this Court has held as under: (SCC p. 261, para 19) “19. The appellate court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial court, but it will be different if the court itself requires the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the court. But mere difficulty is not sufficient to issue such direction.” 14. In [North Eastern Railway Admn. v. Bhagwan Das, (2008) 8 SCC 511 ] this Court observed thus: (SCC pp. 515-16, para 13) “13. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the court. But mere difficulty is not sufficient to issue such direction.” 14. In [North Eastern Railway Admn. v. Bhagwan Das, (2008) 8 SCC 511 ] this Court observed thus: (SCC pp. 515-16, para 13) “13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist.” 15. In [N. Kamalam v. Ayyasamy, (2001) 7 SCC 503 ] this Court, interpreting Rule 27 of Order 41 of the Code, has observed in para 19 as under: (SCC p. 514) “19. … the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal— it does not authorise any lacunae or gaps in the evidence to be filled up. The authority and jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way.” 16. In [Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 ] this Court has held as under: (SCC p. 171, para 49) “49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out 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.” (emphasis in original) 6. The Hon’ble Supreme Court in a very recent judgment rendered in the case of Sanjay Kumar Singh Vs. State of Jharkhand reported in 2022 Live Law (SC) 268, has relied on the judgment of A. Andisamy Chettiar (Supra) and has summarized the law of admissibility of additional evidence at appellate stage in following manner:- “4. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature. As observed and held by this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, 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. It is further observed that 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.” 7. It may thus be construed that the provisions of Order XLI Rule 27 of the CPC have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of appeal. The admissibility of additional evidence does not depend upon the relevance to the issue on hand, or on the fact as to whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, rather it depends upon the fact as to whether the appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. If the document sought to be adduced at appellate stage removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit as well as interest of justice clearly renders it imperative to be permitted on record, an application for adducing additional evidence may be allowed. The additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. 8. The additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. 8. In the present case, the petitioners have claimed that the said documents were not within their knowledge and only after death of their mother i.e. original plaintiff, they found those documents in a mud pot. It transpires from the record that the partition suit was filed by the petitioners’ mother in the year 2009 claiming her share in the property of her grandfather, namely, Durga Charan Mahato. However, during pendency of the said suit, she died on 18.11.2014 and the petitioners were substituted as the plaintiffs. The said suit was finally dismissed on 27.04.2018. The applications were filed by the petitioners on 29.05.2019 & 21.08.2019 under Section 107(1)(d) read with Order XLI Rule 27 of the CPC to adduce two documents; one relating to amicable Panchnama made in the year 1984 on the strength of which she was in cultivating possession of the suit land and another was the certified copy of the order sheet of Settlement Case No. 04 of 1962 to show that another name of the father (Pit Lal Mahato) of the original plaintiff i.e. Khuki Mahato was Nitai Mahato. 9. As per the observation of the learned Court below made in the impugned order dated 27.11.2019, the settlement document did not mention that Nitai Mahato (S/o Durga Charan Mahato) was the nick name of Pit Lal Mahato and even according to the genealogical table, Durga Charan Mahato had three sons including Pit Lal Mahato, but the name of Nitai Mahato as the nick name of his son, namely, Pit Lal Mahato was not found there. Moreover, the respondents denied the said claim of the petitioners as was discussed in the judgment of the learned Trial Court and as such the petitioners have not been permitted to introduce new case by way of adducing additional evidence. It has further been observed in the impugned order that the proposed documents were not of such nature, which were required to enable the Court to pronounce proper judgment. P.W-1, during cross-examination, had admitted that Pit Lal Mahato was not the son of Durga Charan Mahato, rather he was brought to his house to look after his cultivation work and some land was also transferred to him for cultivation. 10. P.W-1, during cross-examination, had admitted that Pit Lal Mahato was not the son of Durga Charan Mahato, rather he was brought to his house to look after his cultivation work and some land was also transferred to him for cultivation. 10. It would appear from the aforesaid facts that even after death of the original plaintiff, the petitioners took more than four years in seeking permission to adduce the said documents in evidence without giving sufficient explanation for the same. The petitioners had claimed before the learned Trial Court that the said document were kept in a box, however, it has been claimed before the appellate Court that the same were lying in a mud pot, which suggests that the petitioners have tried to somehow make out a case for justifying their negligence in not producing the said documents at the trial stage. It seems that the petitioners, after the judgment of the learned Trial Court passed in the said partition suit, have made an attempt to patch up the infirmity in their case by adducing the additional evidence. 11. The learned Court below has elaborately dealt with the law as well as the facts while passing the impugned order dated 27.11.2019. It is not a case in which the learned Trial Court has refused to admit the said evidence and as such the condition under Sub-rule 1(a) of Rule 27 of the CPC is not made out and the petitioners have also failed to establish that even after exercising due diligence, they could not produce the said documents at the trial stage or they were prevented by sufficient cause from doing so. The learned Court below having gone through the record, has further found that the petitioners want to adduce additional evidence with a view to fill up the lacuna in their evidence which is not permissible under law. 12. In view of the aforesaid discussions, I find no infirmity in the impugned order dated 27.11.2019 passed by the learned District & Additional Sessions Judge-I, Ghatshila in Civil Appeal No. 42 of 2018 so as to warrant any interference with the same under Article 227 of the Constitution of India. 13. The present writ petition being devoid of merit is, accordingly, dismissed.