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Md. Anwar Alam Khan v/s Zaibun Nisa & Others


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    C.O.No. 163 of 2015

    Decided On, 17 June 2015

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE ARIJIT BANERJEE

    For the Petitioner: Probal Kumar Mukherjee, Sk. Quamruddin Khan, Shebatee Datta, Advocates. For the Opposite Parties: Ayan Banerjee, Abid Jamal, Advocates.



Judgment Text

1. The petitioner herein was the plaintiff in the suit who obtained a decree for eviction from the trial court.

2. In the appeal preferred from such decree, the defendants/appellants made an application under Order XLI Rule 27 of the Code of Civil Procedure for relying on additional documents. It appears that without disposing of such application, the additional documents were taken on record by the First Appellate Court.

3. Being aggrieved, the petitioner herein had come up to this Court by way of filing a revisional application being C.O. 3114 of 2014 which was disposed of by this Court by an order dated September 15, 2014 observing that the First Appellate Court has adopted an erroneous procedure of receiving the documents and posting the application for additional evidence ahead of the appeal. It was further observed that the First Appellate Court (wrongly printed as trial court) should not have received the documents without requiring the documents to be proved and without assessing whether the documents were relevant for the purpose of adjudication of the appeal.

4. After passing of the said order by this Court, the petitioner herein being the respondent in the appeal filed an application before the First Appellate Court for returning the documents which the Court had received by way of additional evidence. On that application an order dated 28th October, 2014 was passed which is impugned in the present revisional application. By the order impugned, the First Appellate Court rejected the petitioner’s application for returning the documents with the observation that the said documents are necessary for proper adjudication of the case.

5. I have heard the learned counsel for the parties. In my view, the First Appellate Court has erroneously placed the cart before the horse. Before the Appellate Court can take on record additional documents, it must first consider and decide the application under Order XLI Rule 27 of the Code of Civil Procedure. In the instant case the First Appellate Court, without deciding the application under Order XLI Rule 27, has taken on record the additional evidence. This, in my view, is wholly irregular.

6. I am unable to sustain the order.

7. Accordingly, the order under review is quashed. The First Appellate Court is directed to return the documents to the appellants in Title Appeal No. 58 of 2013. The Court is directed to first consider and decide the application under Order XLI Rule 27 of the Code of Civil Procedure in accordance with law and dispose of the same by a reasoned order.

8. I make it clear that while considering the application under Order XLI Rule 27 of the Code of Civil Procedure, the court below will be entitled to look into the documents concerned for the purpose of deciding the application. Needless to say that t

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he application under Order XLI Rule 27 of the Code of Civil Procedure will be heard along with the appeal. 9. It is desirable that the appeal is disposed of as expeditiously as possible and in any event within a period of six months from date. 10. C.O. 163 of 2015 is, accordingly, disposed of.
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