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2024 DIGILAW 622 (ALL)

Rameshwari Devi v. Rakesh Mishra

2024-02-28

ASHUTOSH SRIVASTAVA

body2024
JUDGMENT : 1. Heard Sri Arpit Agarwal, learned counsel for the petitioners and Shri Vivek Saran, learned counsel for the respondents. 2. The instant petition under Article 227 of the Constitution of India has been filed for setting aside the judgment and order dated 08.08.2023, passed by the Appellate Authority/Additional District Judge, Court No. 4/Special Judge (EC Act) Pilibhit, in P.A. Appeal No. 8 of 2023 (Rameshwari Devi and another vs. Rakesh Mishra) whereby and whereunder the Application filed by the petitioner for adducing additional evidence under Order 41 Rule 27 read with Section 151 CPC has been rejected. 3. It is the case of the petitioners that they are tenants of a shop situated in Mohalla Bazar Katra, Tehsil and Town Area Bisalpur, Pilibhti and are conducting the business of Bangles from the shop in question. Originally, the tenancy of the shop was in the name of Shri Radheyshyam the late husband of the petitioner no. 1 and father of petitioner no. 2. After the death of Shri Radheshyam the tenancy devolved upon the petitioners. The shop was originally owned by one Sushil Kumar and was purchased by the respondent herein vide Sale Deed dated 21.07.2015. A Release Application under Section 21(1)(a) of the UP Act No. 13 of 1972 was filed by the respondent without issuing notice to the petitioners as contemplated under the 1st Proviso to Section 21(1) of the Act which proceedings were registered as PA Case No. 114 of 2018. The petitioners appeared in the Case and filed their objections taking a specific plea in their objections that the plaintiff/respondent had not served any notice upon the petitioners/tenants that he had purchased the shop. The learned Prescribed Authority, vide judgment and order dated 20.01.2023 allowed the Release Application. The petitioners being aggrieved by the order of the Prescribed Authority, have preferred an Appeal being Appeal No. 8 of 2023. During the pendency of the Appeal the original Counsel of the petitioners, conducting the Appeal, namely Shri V.S. Ashok took retirement from the profession and the petitioners had to engage another counsel namely Shri Ishan Gupta. The petitioners being aggrieved by the order of the Prescribed Authority, have preferred an Appeal being Appeal No. 8 of 2023. During the pendency of the Appeal the original Counsel of the petitioners, conducting the Appeal, namely Shri V.S. Ashok took retirement from the profession and the petitioners had to engage another counsel namely Shri Ishan Gupta. Shri Ishan Gupta, Advocate on going through the file opined that certain relevant documents had not been brought on record and accordingly the petitioners preferred an Application under Order 41 Rule 27 CPC dated 09.05.2023 annexing the documents/evidence to be brought on record for consideration of the Appellate Authority in seisin of the Appeal. The documents sought to be filed as Additional Evidence were (i) certified copy of order dated 13.02.2020 passed in Original Suit No. 113 of 2016 (ii) certified copy of the Commission Report (iii) certified copy of the extract of the House Tax Assessment pertaining to the year 2017-18 pertaining to the plaintiff/respondent and his wife, photographs of the disputed shop and original invitation Card. The landlord/respondent filed objections to the Application under Order 41 Rule 27 CPC. The Appellate Authority vide order dated 08.08.2023 has rejected the Application under Order 41 Rule 27 CPC which order has been impugned in the instant petition. 4. Shri Arpit Agarwal, learned counsel for the tenant/petitioners has argued that the Appellate Authority has committed manifest error of law in rejecting the Application to bring on record the Additional Evidence. He has invited the attention of this Court to the provisions of Order 41 Rule 27 (1) (b) CPC and submits that Order 41 Rule 27 assigns discretion to the Appellate Court to require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. For the exercise of discretion under Order 41 Rule 27 (1) (b) CPC an application is required to be considered along with hearing of the Appeal on merits. It was not open for the Appellate Authority to have exercised the discretion vested in it before deciding the Appeal and the Application was liable to be considered at the time of hearing of the Appeal. Reliance has been placed upon decisions of a Coordinate Bench of this Court reported in 2016 (2) ARC 479 (Ram Karan Vs. Jagdeep Singh) and 2015 (2) ARC 615 (Smt. Anita Sharma Vs. Reliance has been placed upon decisions of a Coordinate Bench of this Court reported in 2016 (2) ARC 479 (Ram Karan Vs. Jagdeep Singh) and 2015 (2) ARC 615 (Smt. Anita Sharma Vs. Om Prakash Batra). 5. It is further argued by Shri Arpit Agarwal that in the case at hand it was specifically pleaded in the Application for Additional Evidence that the evidence sought to be brought on record could not be filed earlier on account of the earlier counsel Shri V.S. Ashok withdrawing himself from the case on account of his illness and retirement from the profession and when another counsel Shri Ishan Gupta was engaged he at the time of preparation of the Case opined that the documents were required to be filed on record as Additional Evidence. In the peculiar circumstances of the case the documents were liable to be accepted on record. This Court in almost similar circumstances in a case reported in 2019 (2) ARC 155 set aside the order rejecting the Application under Order 41 Rule 27 CPC and directing the Court below to decide the Application within a time frame taking into consideration the relevant law. 6. Per contra, Shri Vivek Saran, learned counsel for the respondent submits that the Appellate Authority committed no error or illegality in rejecting the Application of the petitioner under order 41 Rule 27 CPC. Placing reliance upon the decision of the Apex Court in the Case of Lekhraj Bansal Vs. State of Rajsthan and Another Reported in 2014 (15) SCC 686 it is submitted that parties to an Appeal shall not be entitled to produce additional evidence in the Appellate Court unless the conditions stipulated under Order 41 Rule 27 CPC are satisfied. It is not the case of the petitioner that the Trial Court had refused to admit the said evidence which ought to have been admitted. It is also not the case of the petitioner that the said evidence was not within his knowledge or could not, after the exercise of due diligence be produced by him during pendency of the PA case before the Prescribed Authority. On the other hand it is vehemently contended that the Appellate Authority has expressed its observation that the documents sought to be brought on record are not necessary for enabling it to pronounce judgment in the Appeal. On the other hand it is vehemently contended that the Appellate Authority has expressed its observation that the documents sought to be brought on record are not necessary for enabling it to pronounce judgment in the Appeal. He thus submits that the petition is liable to be dismissed at the threshold. 7. I, have heard learned counsel for the parties and have perused the record. 8. Order 41 Rule 27 CPC provides for production of additional evidence in Appellate Court. The Appellate Court in exercise of the discretionary jurisdiction and subject of fulfilment of the conditions laid down under Order 41 Rule 27 CPC may allow the parties to adduce additional evidence. Order 41 Rule 27 CPC reads as under: Order 41 Rule 27. Production of additional evidence in Appellate Court: 1. The parties to an appeal shall not be entitled pto 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] (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, r witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 9. A perusal of the above provisions shows that it is an exception to the general principle that the Appellate Court should not travel outside the record of the lower Court and cannot take any evidence in Appeal. Order 41 Rule 27 enables the Appellate Court to take Additional Evidence in exceptional circumstances if and only if the conditions laid down in this provision are found to exist. A certain discretion is permitted to be exercised by the Appellate Court while considering any application under Order 41 Rule 27 which is required to be exercised judicially. Order 41 Rule 27 enables the Appellate Court to take Additional Evidence in exceptional circumstances if and only if the conditions laid down in this provision are found to exist. A certain discretion is permitted to be exercised by the Appellate Court while considering any application under Order 41 Rule 27 which is required to be exercised judicially. The question regarding the exercise of discretion and at what stage by the Appellate Court while considering an Application under Order 41 Rule 27 CPC came up for consideration before the Apex Court in the case of Union of India vs. Ibrahim Uddin and Another, reported in 2012 (8) SCC 148 . The Apex Court after considering all aspects of the matter summed up the Issue in para 48 of its judgment which is being reproduced hereunder: “48. To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.”. 10. As regards the stage of consideration of the Application the Apex Court was of the view that the Application under Order 41 Rule 27 was liable 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 relevance/bearing on the issue involved. 10. As regards the stage of consideration of the Application the Apex Court was of the view that the Application under Order 41 Rule 27 was liable 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 relevance/bearing on the issue involved. It observed that the admissibility of the Additional Evidence does not depend upon the relevance to the issue at 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 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. It accordingly held in para 52 of the judgment as under: “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/inexecutable and is liable to be ignored.” 11. Now coming to the impugned order date 08.08.2023, passed by the Appellate Authority, the Court finds that in substance the Application under Order 41 Rule 27 CPC has been rejected on the ground that the conditions laid down under Order 41 Rule 27 were not satisfied and further that in its opinion the Additional Evidence sought to be brought on record was not required to pronounce judgment or for any other substantial cause. The discretion has been exercised by the Appellate Court against the petitioners (Appellant) even without discussing as to whether the documents sought to be brought on record were necessary or not for deciding the real controversy at hand. Besides, the Application has been rejected even prior to hearing of the Appeal. In the opinion of the Court, the order of the Appellate Authority rejecting the Application is contrary to the ratio of the decision of the Apex Court in the Case of Ibrahim Uddin (Supra) inasmuch as the Application under Order 41 Rule 27 CPC is required to be considered at the time of hearing of the Appeal on merits so as to find out whether the documents/evidence sought to be adduced have any relevance/bearing on the issue involved and the true test being 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. 12. In the result, the petition succeeds and is allowed. 13. The impugned order dated 08.08.2023, passed by the Appellate Authority/Additional District Judge (Court No. 4)/Special Judge (EC Act) Pilibhit in PA Appeal No. 8 of 2023, (Rameshwari Devi and another vs. Rakesh Mishra) rejecting the Application filed by the petitioner under Order 41 Rule 27 CPC for adducing Additional Evidence at the Appellate Stage is set aside. The Appellate Authority is directed to reconsider the petitioners’ application in accordance with the law laid down by the Apex Court in the Case of Ibrahim Uddin (Supra) and make all endevour to decide the Appeal expeditiously in accordance with law without granting any unnecessary adjournments to either of the parties. 14. No order as to costs.