Bhaskar Raj Pradhan, J.
1. The impugned judgment dated 30.03.2019 passed by the learned District Judge, Special Division-I, East Sikkim at Gangtok (learned District Judge) in Money Suit No. 22 of 2016 is assailed in this appeal by the appellant who was the plaintiff. The learned District Judge has non-suited the appellant on the ground that he has failed to prove that during the year 2014 the defendant had purchased day old chicks and poultry feed from him for which he was liable to pay an amount of Rs.17,60,105/-. Document X sought to be produced by the plaintiff during trial seems to be central to the case sought to be established by the plaintiff. In the plaint the plaintiff produced a copy of document X and stated:
“5. That on 29th November, 2014, the plaintiff and the defendant signed an agreement letter in the presence of witnesses wherein it was accepted and admitted by both the plaintiff and the defendant that the defendant owed the plaintiff a debt of Rs.17,60,105 (Rupees seventeen lakhs sixty thousand one hundred and five only). The defendant gave the plaintiff four blank cheques bearing cheque numbers 489729, 489728, 489727 and 489726 and agreed that the plaintiff may keep hold of the cheques until the amount owed was fully paid off by the defendant. In the same agreement, it has been mentioned that the first instalment in payment of the debt shall be given by the defendant by the end of December, 2014. The copy of the agreement dated 29th November, 2014 and the copies of the cheques bearing cheque numbers 489729, 489728, 489727 and 489726 are annexed herewith and marked as Annexure-I, II, III, IV and V respectively.”
2. The defendant filed his written statement on 03.05.2017. With regard to document X he took the following plea:
“7. That reference paragraph 5 of the plaint, the defendant vehemently denied all the contents thereof and puts the plaintiff to the strict proof thereof. The defendant submits that since the Defendant stopped buying old-day chicks and feeds from the Plaintiff, in an around the month of August, 2014, the Plaintiff asked this defendant to meet him at Rangpo Bazar and asked to settle dues if any as such he is not maintaining his record of transactions and when this Defendant told him that he would settle the dues if he is owed to pay him after checking the records. Further the plaintiff also requested the Defendant to hand over all documents relating to the transaction made between them in the year 2013 and the defendant declined his request, upon such refusal, out of anger the Plaintiff abused the Defendant and also threatened him with dire consequences.
It is further submitted that the annexure-‘I’ annexed by the Plaintiff is a document executed by the Plaintiff only and I was asked to sign on it being their supplier and further requested to issue blank cheques (i.e., Annexure-II, III, IV and V) by the Plaintiff as well as the Members of the Turuk Poultry Livestock Co-operative Society. It is further submitted that the members of the said co-operative was on the impression that they had some outstanding dues towards the Plaintiff for the transactions made in the year 2013 and that the Plaintiff was failed to show actual credit amount to them.”
3. On 06.11.2017 the learned District Judge recorded an order, at the time of filing of originals, stating that the learned counsel for the plaintiff claimed the photo copy to be the original agreement although it looked like a photo copy. The learned District Judge also recorded the objection of the learned counsel for the defendant. The learned District Judge admitted the documents in evidence subject to be being proved at an appropriate stage.
4. On 07.11.2017 the learned District Judge framed six issues. Issue no.4 related to document X. Issue no.4 read: “Whether vide the agreement dated 29.11.2014 the defendant acknowledged the above liability towards the plaintiff? Or, whether the defendant was coerced to simply sign on the said agreement? (OPP) (OPD)”.
5. The plaintiff filed his evidence on affidavit dated 26.02.2018. In the affidavit the plaintiff stated:
“the agreement dated 29.11.2014 is exhibited as exhibit 1 wherein exhibit 1(a) is my signature, exhibit 1(b) is the signature of Santosh Rai, the defendant, exhibit 1(c ) is the signature of Prakash Rai, exhibit 1(d) is the signature of Bikash Chettri, exhibit 1(e) is the signature of Krishna Rai, exhibit 1(f) is the signature of Issac Rai, exhibit 1(g) is the signature of Robin Rai and exhibit 1(h) is the signature of Pardeep Rai.”
6. At the time of authentication of the evidence on affidavit the plaintiff explained “though I have also referred to the concerned agreement-letter dated 29.11.2014 as exhibit 1 in my evidence on affidavit the same can only be marked as document X being a photostat copy.” The plaintiff was cross examined by the defendant on document X.
7. In the defendant’s evidence on affidavit he took the plea that the documents filed by the plaintiff are false, fabricated and that he was made to execute the alleged document on misrepresentation. He also took the plea that the plaintiff had committed fraud upon him and his family members and he was forced to sign on the alleged documents and made to issue the cheques. He pleaded that the cheques were in custody of the plaintiff and same were given as security and further that he had already paid the entire money to the plaintiff. The defendant was cross examined by the plaintiff. He admitted that the initials on document X was his and that he had signed it. He explained it by saying that the contents thereof were not explained to him.
8. On 01.05.2018 the defendant filed a petition under section 45 of the Indian Evidence Act, 1872 read with section 151 of the CPC seeking leave of the court for sending document X to RFSL for its analysis.
9. On 19.05.2018 the learned District Judge allowed this application and sought the opinion of the RFSL on “(a) agreement letter dated 29.11.2014 (in its front as well as reverse side) marked X for identification is a genuine original document or photostat copy of the original?” The opinion of the RFSL, Saramsa was that document X is the reproduction of the original copy.
10. The learned District Judge examined documents X and held that it is inadmissible and cannot be looked into.
11. The appellant has preferred an appeal under Order XLI Rule 1 and 2 of the Code of Civil Procedure, 1908 (CPC) against the impugned judgment and decree dated 30.03.2019 dismissing the suit filed by the appellant. The appellant has also preferred an application under Order XLI Rule 27 read with section 151 C.P.C. for production of additional evidence.
12. The appellant was represented by Mr. Sajal Sharma, learned counsel. Mr. Manish Kumar Jain represents the respondent. Mr. Sharma submits that the original of document X placed along with the application for additional evidence is vital to the case and a perusal thereof makes it evident that the respondent had clearly admitted his liability to pay the sum of Rs. 17,60,105/- towards payment of the purchase of the day old chicks and poultry feed by him. He relied upon two judgments of this court and one of the Andhra Pradesh High Court for the said purpose. They are Shri T.Ongyal Bhutia vs. Smt. Phumpi Bhutia & Ors. (2014 SCC OnLine Sikk 127); Shri Damber Singh Chettri vs. Shri Lachuman Chettri (2019 SCC OnLine Sikk 159); and The Land Acquisition officer and Sub-Collector, Vijayawada and etc. Vs. Chigurupati Umamaheswara Rao & Ors. (AIR 1993 Andhra Pradesh 8) The appellant explains that the original of document X that was misplaced in a pile of files and documents has now been located. Mr. Jain referred to the judgment of the Supreme Court in H.S. Goutham vs. Rama Murthy & Anr. (2021) 5 SCC 241) and submitted that it is impermissible to direct taking additional evidence in appeal without following procedure under Order 41 Rule 27 to 29 CPC.
13. As held by the Supreme Court it is required to be noted that as per the provisions of Order 41 CPC, the appellate court may permit additional evidence to be produced whether oral or documentary, if the conditions mentioned in Order 41 Rule 27 CPC are satisfied after the additional evidence is permitted to be produced in exercise of powers under Order 41 Rule 27. Thereafter, the procedure under Order 41 Rule 28 and 29 is required to be followed.
14. The appellant has been able to satisfy that the appellant could not genuinely produce the original of document X (referred to as the original of document X in this judgment only for convenience) as he had misplaced it during the trial. The appellant has now placed a document stating to be the original of document X along with the application. Prima facie, when compared with document X it does seem to be its original. The appellant has also been able to satisfy that it is vital and relevant to determine the issues involved in the present suit. As noticed above the entire case of the plaintiff is based primarily on this document, a copy of which had been filed by the plaintiff along with the plaint itself. Although an application for leading secondary evidence had been filed during trial the learned District Judge rejected that application. It was then the case of the appellant that he had mysteriously lost the original of document X and lodged a report about it. Consequently, the document X was not considered.
15. It is incomprehensible that when the appellant was banking so heavily on document X he would have withheld its original on his own free will. A perusal of the original of document X sought to be produced as additional evidence does reflect that it is an important document to determine the outcome of the suit which was dismissed for lack of evidence. In the circumstances the application for production of the original of document X as eviden
Please Login To View The Full Judgment!
ce is allowed. The file is sent back to the court of learned District Judge, Special Division-I at Gangtok to take additional evidence on the original of document X (agreement letter dated 29.11.2014 filed along with I.A. No.01 of 2020) and after completion of recording of the additional evidence to send it back to this court. While taking the additional evidence as directed, the learned District Judge shall consider the genuineness and authenticity of the additional evidence, including as to whether the contents thereof have been proved by the party relying thereon, and thereafter, to return the evidence to this court together with its findings thereon and reasons therefor within a period of three weeks hence. The learned District Judge shall afford an opportunity to the respondent to adduce evidence in rebuttal, but confined to the aspects covered by the original of document X. 16. Money Suit shall be restored to its original number in the files of the learned District Judge for the said purpose. 17. A copy of this judgment be sent forthwith to the Court of the learned District Judge.