1. Heard Mr. Kaushik Sarkhel, learned counsel appearing for the petitioner and Mr. Nityanand Prasad Choudhary, learned counsel appearing for the respondents.
2. The petitioner has preferred this writ petition for quashing the order dated 01.10.2013 passed by the District Judge, 1st, Jamtara in Title Appeal No. 6 of 2012, whereby, the petition filed by the present petitioner under Order XLI Rule 27 of the Code of Civil Procedure, 1908 for adducing additional evidence at the appellate stage has been rejected.
3. The facts of the case, as explained by the learned counsel for the petitioner, are that the father of respondent nos. 1, 2 and 3 namely Sridayal Shaw filed Title Suit No. 35 of 2004 before the learned Subordinate Judge-I, Jamtara for declaration of right, title and interest and also for recovery of possession, damages and injunction in connection with plot no. 971 of Mouza Narayanpur appertaining to A.K.J. No. 80. After institution of the title suit, the present petitioner being the defendant in the suit was noticed, who after appearance filed his written statement. Thereafter, the witnesses were examined on behalf of the respondents/plaintiffs as well as by the petitioner/defendant and ultimately the learned Senior Civil Judge, 2nd, Jamtara decreed the suit in favour of the respondents/plaintiffs vide judgment dated 10.05.2012. Aggrieved with the said judgment dated 10.05.2012 passed in Title Suit No. 35 of 2004, the petitioner herein preferred an appeal before the learned Principal District Judge, Jamtara, which was registered as Title Appeal No. 6 of 2012. The said appeal was transferred to the Court of learned District Judge, 1st, Jamtara. Thereafter, the appeal was admitted and notices were issued to the respondents. In Title Suit No.35 of 2004, the respondents/plaintiffs have stated in the plaint that out of poverty, Most. Parwati Kumari had given a room to Dhannalal Poddar to use it as go-down and in lieu of that Dhannalal Poddar used to give some money or rice from time to time to Most. Parwati Kumari. Thereafter, Dhannalal Poddar had stopped making payment and accordingly Most. Parwati Kumari filed a Raiyati Eviction Case No. 80 of 1979-80 before the Sub-Divisional Officer, Jamtara under the Santhal Pargana Tenancy Act. In that eviction case, Dhannalal Poddar was noticed and thereafter he filed a show-cause stating that he has no claim over the said land and in pursuance to the show-cause filed by Dhannalal Poddar, an enquiry was conducted by Halka Karmchari as well as Circle Inspector at Narayanpur Circle. A report was submitted by Halka Karmchari stating therein that the house of Most. Parwati Kumari was occupied by one Deoki Devi, who was living in that house with her younger brother and husband. On the basis of the said report, the Raiyati Eviction proceeding was dropped and thereafter Most. Parwati Kumari filed an appeal before the Deputy Commissioner, Dumka against Deoki Devi and Dhannalal Poddar, which was also dropped by the Deputy Commissioner, Dumka on 24.07.1996. Thereafter, the respondents/plaintiffs filed Title Suit No. 35 of 2004 stating therein that there is documentary evidence to show that till the year 1979, the land and the structure was in occupation of Dhannalal Poddar and how Dhannalal Poddar is having no right and title to allot land to Deoki Devi, who is not known to the plaintiffs and lastly it was stated in the plaint that Nawal Kumar Shaw i.e. the petitioner, who is the son of Deoki Devi has no right, title and interest over the said land. The show-cause filed by Dhannalal Poddar was not exhibited by the respondents/plaintiffs and the petitioner was in search of the said show-cause filed by Dhannalal Poddar and because of which, statement has been made by this petitioner in the written statement at paragraph 9 that from the showcause of Dhannalal Poddar, the possession of the defendants' predecessor Laxman Shaw since 1935-36 could be established. In paragraph 8 of the plaint, the respondents/plaintiffs have only mentioned a part of the statement of Dhannalal Poddar made in the show-cause, but has suppressed other part of the show-cause filed before the S.D.O. in R.E. Case No. 80 of 1979-80. The copy of the said show-cause was lying with Dhannalal Poddar and subsequently after his death, the said file could not be traced out by his family members and during trial in spite of due diligence taken by the petitioner, he could not procure the said copy of the show-cause and filed the same during trial. During pendency of Title Appeal No. 6 of 2012, the petitioner could anyhow found that show-cause filed by Dhannalal Poddar in R.E. Case No. 80 of 1979-80 and the petitioner filed an application under Order XLI Rule 27 of the C.P.C. for adducing additional evidence to prove the said show-cause in the admission stage as the said show-cause has of great importance and the said show-cause would show the possession of defendants' predecessor Laxman Shaw since the year 1935-36 on 03.07.2013. In the appellate court below, the respondents filed reply to the application dated 03.07.2013 stating that the application filed by the petitioner is not maintainable and Dhannalal Poddar or his successor is not a party to the original suit and they have disclaimed the suit property before the revenue authority. It was also stated in the reply that the petitioner has not tried to examine said Dhannalal Poddar or any other person to prove that the said show-cause was filed by Dhannalal Poddar and it was further asserted that the petitioner is trying to delay in disposal of the title appeal. The application filed under Order XLI Rule 27 of the C.P.C. was rejected by the learned District Judge, 1st Jamtara vide order dated 01.10.2013 and held that there is no scope for the petitioner to adduce additional evidence, in this regard in the said appeal and, therefore, the said application was dismissed vide order dated 01.10.2013. Aggrieved with this order, the petitioner has filed this writ petition before this Court.
4. Mr. Kaushik Sarkhel, learned counsel appearing for the petitioner submits that under Order XLI Rule 27 C.P.C., production of additional evidence whether oral or documentary, is permitted only under three ingredients, such as:
(i) where the trial court had refused to admit the evidence though it ought to have been admitted;
(ii) the evidence was not available to the party despite exercise of due diligence; and
(iii) the appellate court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.
By way of referring these three stages, he submits that these ingredients are fulfilled in this case and the petitioner was due diligent in producing the relevant document in the lower appellate court. He further submits that despite satisfactory reasons have been given in the application filed by the petitioner under Order XLI Rule 27 C.P.C., the appellate court has not considered the application in right perspective. To buttress his argument, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of State of Rajasthan v. T.N. Sahani, (2001) 10 SCC 619.
Paragraph 4 of the said judgment is quoted herein 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. The High Court will now consider the appeal and the application and decide the matter afresh in accordance with law."
He further submits that the true test with regard to Order XLI Rule 27 C.P.C. 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 and such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court. He further submits that the appellate court wrongly rejected the petition filed by the petitioner under Order XLI Rule 27 C.P.C. To buttress his argument, he relied upon the judgment rendered by the Hon'ble Supreme Curt in the case of Union of India v. Ibrahim Uddin, (2012) 8 SCC 148.
Paragraph 49 of the said judgment is quoted herein below:
"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. 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. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court."
He further relied upon the judgment passed by this Court in the case of Tata Iron & Steel Company Ltd. (West Bokaro Colliery) v. Sunil Kumar Bhadani & Ors., W.P.(Civil) 7527 of 2017, which was decided on 30.04.2018 and submits that the application under Order XLI Rule 27 C.P.C. cannot be decided before both the parties have concluded their arguments in the appeal; before that stage the appellate court cannot form an opinion whether a document should be admitted in evidence or a witness has to be examined.
5. Per contra, Mr. Nityanand Prasad Choudhary, learned counsel appearing for the respondents submits that there is no illegality in the impugned order passed by the appellate court. He further submits that Dhannalal Poddar was not examined in the suit and that is why there was no occasion to the petitioner to file application under Order XLI Rule 27 C.P.C. He further submits that the appellate court has considered every aspects of the matter and rightly rejected the application of the petitioner. He relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Malayalam Plantations Ltd. v. State of Kerala, (2010) 13 SCC 487.
Paragraphs 14 to 17 of the said judgment are quoted herein below:
"14. We are not inclined to go into the validity or acceptability of those documents/materials filed by both sides before the High Court. Order 41 CPC speaks about procedure in respect of disposal of appeals from the original decree. Among various rules, we are concerned with Rule 27 which reads as under: "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) Whenever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission."
15. In view of the above provision, in our opinion, when an application for reception of additional evidence under Order 41 Rule 27 CPC was filed by the parties, it was the duty of the High Court to deal with the same on merits. The above principle has been reiterated by this Court in Jatinder Singh v. Mehar Singh and Shyam Gopal Bindal v. Land Acquisition Officer.
16. If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing on the issues involved. It is trite to observe that under Order 41 Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence;
(c) whether additional evidence was necessary in order to enable the appellate court to pronounce the judgment or any other substantial cause of similar nature.
17. It is equally well settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. Adducing additional evidence is in the interest of justice. Evidence relating to subsequent happenings or events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 CPC. Additional evidence cannot be permitted at the appellate stage in order to enable other party to remove certain lacunae present in that case."
He further relied upon the judgment rendered by this Court in the case of Director, Rehabilition & Land Acquisition, D.V.C., Ranchi v. Gurupada Kumbhakar,2009 3 JLJR 645
Paragraphs 4 and 5 of the said judgment are quoted herein below:
"4. The facts of the case, as explained by the learned counsel for the petitioner, are that the plaintiff/Respondent No. 1 had filed Title Suit No. 48 of 2002, in the Sub-Judge, 01st Court, Dhanbad for a decree declaring his right, title and interest over the suit lands.
Petitioner being one of the contesting defendants had denied and disputed the claim of the plaintiff/Respondent no. 1 and had filed his written statements. Separate written statements were filed by the other defendants in the suit.
The suit was decreed in favour of the plaintiff/respondent no. 1 and against the judgment and decree, the petitioner filed an appeal before the appellate court vide Title Appeal No. 69 of 2006. After hearing the appeal, the appellate court remanded the case to the trial court with a direction to give its finding on two specific issues and further directed to allow the parties to adduce evidence on the said issues.
The trial court recorded its finding on the two issues, as specified by the appellate court and thereafter, the matter was placed before the appellate court. The petitioner filed his petition, praying for allowing him to adduce the document referred to above on the ground that it was relevant and a material piece of evidence and the petitioner would suffer prejudice if the document is not allowed to be adduced in evidence on his behalf.
The petitioner's prayer was contested by the plaintiff/respondent no. 1.
The appellate court after considering the document and explanatory submissions offered by the learned counsel for the parties, rejected the petitioner's prayer vide the impugned order on the ground that the existence of the documents was all along within the knowledge of the defendant/appellant, and yet he had made no reference to the documents whatsoever in his written statements and had not even made any effort whatsoever for securing the production of the documents, if according to him, the document was not in his custody and was in the custody of some other person. Furthermore, the appellate court had also expressed that in the light of the evidences already adduced on behalf of the concerned authorities of the Respondent-State, the document sought to be introduced in the evidence by the appellant, was not necessary for the just decision on the issues raised.
5. I do not find any illegality or impropriety in the order of the learned appellate court, as it has been apparently passed in consonance with the legal procedure and after assigning adequate reasons for rejecting the petitioner's prayer."
He further submits that the petitioner has referred the show-cause of Dhannalal Poddar in his written statement and the existence of the document was well within his knowledge, but Dhannalal Poddar was not examined by the petitioner/defendant in the suit and, therefore, the application for adducing additional evidence under Order XLI Rule 27 C.P.C. has been rightly dismissed by the District Judge, 1st, Jamtara. He further relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Sri Y.P. Sudhanwa Reddy v. Chairman and Managing Director, Karnataka Milk Federation etc., (2018) 3 JLJR 61 (SC) .
Paragraphs 19 to 28 of the said judgment are quoted herein below:
"19. It is not in dispute that once the respondent filed a copy of the notification in appeal before the High Court bearing No.L- 10 Writ Petition (Civil) No. 207 of 2014 5468-MI 10-4-15 dated 22.01.1941 issued under Section 4 of the Act by the State Government, which was taken on record as additional evidence by the High Court, showing that the suit land was acquired by the State in the year 1941, the legal position arising in the case in relation to the suit land became clear. 20. Indeed, as a matter of fact, consequent upon issuance of the notification under Section 4 of the Act, which was followed by declaration under Section 6 and then by an award under Section 11 of the Act and lastly, by taking over of the possession of the suit land from the owner of the suit land (appellants' father) under Section 16 of the Act, the suit land stood vested in the State absolutely free from all encumbrances as provided under Section 16 of the Act.
21. In other words, on and after issuance of the notifications under the Act and initiation of acquisition proceedings by the State which culminated in passing of the award as far back as in the year 1941, the appellants' predecessor-in-title ceased to be the owner of the suit land and lost all his rights to hold the suit land and claim possession over it.
22. The only legal remedy available to the appellants' predecessor-in-title (Mr. K.G.Yellappa Reddy) in such case was to challenge the legality and correctness of the notifications issued under Section 4 or/and 6 of the Act and that too within a reasonable time after their issuance in the year 1941. It is not in dispute that the landowners, admittedly, did not challenge the validity and correctness of the notifications and, on the other hand, by suppressing the fact of acquisition proceedings from the Court filed two suits one after the other and claimed title over the suit land.
23. In our considered opinion, neither the predecessor-in-title of the appellants and nor the appellants had any subsisting right, title and interest in the suit land on and after 1941 consequent upon issuance of the notifications by the State under the Act. The reason was that all the ownership rights of the appellants' predecessor-in-title in the suit land stood vested in the State once the acquisition proceedings were completed under the Act. As mentioned above, the appellants' only right was to either challenge the land acquisition proceedings as being against the provisions of Act or to claim compensation payable under the Act in relation to the suit land under Section 11 of the Act followed by reference proceedings under Section 18 of the Act and lastly, in appeal before the High Court for its redertermination.
24. We find from the record that the appellants failed to file any document in rebuttal to the documents filed by the respondent in appeal by way of additional evidence with a view to show that the notifications issued under the Act for acquiring the suit land, which were relied on by the respondent in appeal, were either withdrawn or set aside or not given effect to. Such fact, in our view, alone would have enabled the appellants to claim and assert their right of ownership over the suit land. Such was, however, not the case of the appellants.
25. In the light of the foregoing discussion, we are of the considered opinion that the suit filed by the appellants seeking therein a declaration of their title over the suit land and further claiming permanent injunction was wholly misconceived and was liable to be dismissed.
26. Indeed, no declaration of title over the suit land could be claimed or/and granted by the Civil Court and nor any suit of such nature could be filed in the Civil Court in the light of background facts brought on record by the respondent by way of additional evidence in appeal. These documents fully establish that neither the appellants' predecessor and nor the appellants had any subsisting prima facie title in their favour over the suit land on the date of filing the two suits.
27. Learned counsel for the appellants, however, argued that there was non-compliance of the provisions of Order 41 Rule 27-A of the Code and hence the application filed by the respondent ought not to have been allowed by the High Court. The submission, in our opinion, has no merit for the following reasons.
28. In the first place, the documents sought to be filed by the respondent, namely, notifications issued under the Act were relevant and also necessary for deciding the rights of the parties involved in the suit/appeal. Second, these documents did not require any proof being public documents in nature. Third, the respondent had already made reference of these documents and laid foundation in the pleadings and lastly, the first Appellate Court has jurisdiction under Order 41 Rule 27 of the Code to allow the parties to file additional evidence, if such documents are required to decide the suit/appeal provided satisfactory explanation is given as to why the documents could not be filed in the suit and why they are filed in appeal. The respondent, in this case, did give the explanation, which found acceptance to the High Court and, in our opinion, rightly."
By way of referring the aforesaid judgments, he submits that there was no foundation in the pleadings and that is why the District Judge, 1st, Jamtara has rightly dismissed the application of the petitioner.
6. Having heard learned counsel for the parties, in paragraph 8 of the plaint the respondents/plaintiffs have admitted about the show-cause of Dhannalal Poddar in R.E. Case No. 80 of 1979-80 before the Sub-Divisional Officer, Jamtara. It appears that there is justifiable reason for not filing additional evidence at the trial court stage and that additional evidence is relevant and material for deciding the rights of the parties, which are the subject matter of the lis, the Court should allow the party to file such additional evidence. Order XLI Rule 27 C.P.C. enable the party to file additional evidence at the first and second appellate stage.
7. It has been held by the Hon'ble Supreme Court in the case of Union of India v. K.V. Lakshman, (2016) 13 SCC 124 in paragraph 36, which is quoted herein below:
"36. Order 41 Rule 27 of the Code is a provision which enables the party to file additional evidence at the first and second
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appellate stage. If the party to appeal is able to satisfy the appellate court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject-matter of the lis, the court should allow the party to file such additional evidence. After all, the court has to do substantial justice to the parties. Merely because the court allowed one party to file additional evidence in appeal would not by itself mean that the court has also decided the entire case in its favour and accepted such evidence. Indeed once the additional evidence is allowed to be taken on record, the appellate court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal." 8. 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. In view of the judgment rendered by the Hon'ble Supreme Court in Union of India v. Ibrahim Uddin & another (supra) and by this Court in W.P.(C) No. 7527 of 2017 (supra), prior to conclusion of arguments in Title Appeal No.06 of 2012, that is, a stage prior to the evidences led before the trial court have been scrutinized and arguments of the parties on sustainability of the judgment in Title Suit No.35 of 2004 is heard, the stage for the appellate court has not reached to form an opinion whether the show-cause of Dhannalal Poddar in R.E. Case No. 80 of 1979-80 before the Sub-Divisional Officer, Jamtara is an essential document for arriving at a just decision in the case or not. Thus, the appellate court was required to consider this aspect of the matter before coming to the conclusion as to whether the application filed by the petitioner under Order XLI Rule 27 C.P.C. is fit to be allowed or dismissed. By the impugned order dated 01.10.2013, the appellate court has refused to admit in evidence the show-cause of Dhannalal Poddar as an additional evidence at a stage prior to the stage conceived in law. 9. In view of the aforesaid facts and law on the subject, rejection of the application under Order XLI Rule 27 C.P.C. is found unsustainable and, accordingly, the impugned order dated 01.10.2013 is set aside. The application dated 03.07.2013 is restored to its original file and it shall be decided by the appellate court, if pressed, on conclusion of the arguments by both the parties, in accordance with law. 10. Accordingly, this writ petition stands allowed and disposed of. 11. Interim order dated 05.05.2014 stands vacated.