Bombay High Court
Ramubai Krishna Patil (Decd) Through ... vs Barki Bhurya Patil And Ors on 1 April, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-AS:14946
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7400 OF 2019
Ramubai Krishna Patil (deceased)
through her legal representatives;
Poshiram Krishna Patil and Ors. ... Petitioners
versus
Barki Bhurya Patil and Ors. ... Respondents
Mr. K.N.Kandekar, for Petitioners.
Mr. Pankaj Das, (through VC) for Respondent No.9 - CIDCO.
Mr. Narendra Walawalkar, Sr. Advocate with Mr. Jeetendra Sachhdev and
Abubakar Patel, for Respondent No.11.
CORAM: N.J.JAMADAR, J.
DATE : 1 APRIL 2025
JUDGMENT :
1. Rule. Rule made returnable forthwith. With the consent of the Counsel
for the parties, heard finally.
2. This Petition under Article 227 of the Constitution of India calls in
question the legality, propriety and correctness of the order dated 15 May
2015 passed by the learned District Judge in Civil Appeal No.264 of 2023,
whereby the application preferred by the Petitioners-Appellants seeking
permission to adduce additional evidence under the provisions of Order 41
Rule 27 of the Code of Civil Procedure, 1908 came to be rejected.
3. Ramubai Krishna Patil, predecessor in title of the Petitioners, had
instituted a suit, being Special Civil Suit No.203 of 1996, asserting, inter alia,
that Thotya Appa Gaikar was the original holder of the lands bearing Survey
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Nos.371, Hissa No.2, 383, Hissa Nos.1 and 2/B, 444, Hissa Nos.2/3/4/6, 382,
Hissa No.7, 383 Hissa No.3, 454 Hissa No.1, 419, Hissa No.9 and 383 Hissa
No.5 (suit properties). Changibai was the wife of Thotya Appa Gaikar.
Ramubai was born to Changibai by Thotya. Apart from Ramubai, there was
no legal heir of Thotya. Defendant Nos.1 to 6 had no concern or relationship
with Thotya. Defendant Nos.1 to 6 falsely claimed that they were the legal
heirs of Thotya. In connivance with the Officers of the revenue department,
Defendant Nos.1 to 6 got their names mutated to the record of rights of the
suit properties. Eventually, those properties were acquired. Defendants have
illegally and fraudulently obtained the benefit of acquisition of the suit lands
and the plots of land in lieu of the acquisition of the lands have been
unlawfully allotted to Defendant Nos.1 to 6.
4. Hence, the suit for declaration and that late Ramubai was the sole legal
heir of Thotya, declaration of title over the suit lands and the benefits which
are admissible upon the acquisition of the suit lands, recovery of the amount
which has been unlawfully paid to Defendant Nos. 1 to 6 as the legal heirs of
Thotya and to restrain CIDCO - Defendant No.9 from allotting plots in lieu of
acquisition of the suit lands to the Defendant Nos.1 to 5.
5. The said suit came to be dismissed by a judgment and order dated 27
October 2009. The Petitioners preferred an appeal, being Civil Appeal
No.264 of 2013, before the District Court, Raigad at Alibag. During the
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pendency of the said appeal, the Petitioners claimed to have obtained
documents from the authorities under the Right to Information Act, which
indicated that Defendant Nos.1 to 6 had no concern with Thotya. They were
not the legal heirs of Thotya. In fact, Defendant Nos.1 to 6 were the legal
heirs of one Bhurya Phulwara and their real surname was 'Phulwara' and not
Patil, as falsely proclaimed by Defendant Nos.1 to 6. The Petitioners were
also granted the legal heirship certificate during the pendency of the appeal.
Therefore, the Petitioners filed an application seeking permission to adduce
additional evidence so as to bring the said documents on record. The
application was resisted by the Respondents.
6. By the impugned order dated 15 May 2015, the learned District Judge
was persuaded to reject the application. Being aggrieved, the Petitioners
have invoked the writ jurisdiction.
7. I have heard Mr. Kandekar, learned Counsel for the Petitioners, Mr.
Narendra Walawalkar, Sr. Advocate, for Respondent No.11, and Mr. Das,
learned Counsel for CIDCO -Respondent No.9 at some length.
8. Mr. Kandekar, learned Counsel for the Petitioners, submitted that the
impugned order is bereft of reasons. Learned District Judge has not at all
adverted to the principles which govern the admissibility of additional
evidence at the appellate stage under the provisions of Order 41 Rule 27 of
the Code, much less, the aspect as to whether the evidence proposed to be
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adduced by the Petitioners is necessary to enable the appellate Court to
pronounce the judgment or the application deserved to be allowed for any
other substantial cause. Learned District Judge has reproduced the
contentions of the parties and the submissions canvassed across the bar,
and, in the ultimate paragraph, observed that the application was required to
be rejected without applying mind to the necessity and admissibility of the
additional evidence. On this ground alone, Mr. Kandekar would urge, the
impugned order deserves to be quashed and set aside.
9. Mr. Kandekar took the Court through the documents which were sought
to be adduced by way of additional evidence to draw home the point that
those documents do bear upon the adjudication of the disputes between the
parties. Mr. Kandekar would urge that had the learned District Judge
observed that those documents were not necessary for the determination of
the real question in controversy between the parties, different consideration
might have come into play. However, the learned District Judge has just not
ascribed reasons for the rejection of the prayer.
10. Mr. Walawalkar, learned Senior Advocate for Respondent Nos.11, made
an endeavour to support the impugned order. It was submitted that, a persual
of the judgment of the trial Court would indicate that the Plaintiffs miserably
failed to discharge the burden to establish that Ramubai was the daughter of
Thotya. The suit came to be dismissed on 27 October 2009. There was
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delay in preferring the appeal. The application for adducing additional
evidence came to be filed in the year 2015. The said application was
preferred with a view to further protract the disposal of the appeal. Even the
instant Petition came to be filed in the year 2019. In these circumstances,
this Court need not entertain the Petition, urged Mr. Walawalkar.
11. On the merits of the matter, Mr. Walawalkar submitted that the
contingencies covered by Order 41 Rule 27 to permit adduction of additional
evidence are not at all made out. It is not the case of the Petitioners that the
trial Court has refused to admit evidence. Thus, clause (a) Rule 27 of Order
41 has no application. From the perusal of the averments in the application
and the material on record, it cannot be said that the Petitioners could not
have produced the documents, which were sought to be produced by way of
additional evidence, at the time of the passing of the decree despite due
diligence. Therefore, clause (aa) of Rule 27 Order 41 also has no
application. Lastly, the stage as to whether the appeal Court required the
evidence sought to be adduced to enable it to pronounce the judgment or
existence for any other substantial cause covered by clause (b) of Order 41
Rule 27, had yet not reached as the appeal was yet to be heard on merits.
Therefore, the learned District Judge cannot be said to have committed any
error in rejecting the application. Mr. Walawalkar would also urge that the
order impugned in this Petition cannot be said to be sans reasons. Therefore,
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in the totality of the circumstances, according to Mr. Walawalkar, the Petition
deserved to be rejected.
12. Generally, the appeal Court is not expected to travel outside the
evidence and the material upon consideration of which the Trial Court has
passed a decree and cannot take any evidence in appeal. Under Order 41
Rule 27 of the Code the appeal Court is, however, empowered to take
evidence in specified circumstances. The power of the appeal court to admit
additional evidence is circumscribed by the provisions contained in clauses
(a), (aa) and (b) of the said Rule.
13. The principles which govern the exercise of jurisdiction to admit
additional evidence were expounded by the Supreme Court in the case of
Union of India V/s. Ibrahim Uddin and Anr. 1. Those principles have been
consistently followed. In the case of Ibrahim Uddin (supra), in addition to the
satisfaction of the pre-requisites envisaged by clauses (a), (aa) and (b) of
Order 41 Rule 27, the Supreme Court also adverted to the stage of
consideration of the prayer for additional evidence. It was, inter alia,
observed that the 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 the final hearing of the appeal at a stage when after
appreciating the evidence on record, the Court reaches the conclusion that
1 (2012) 8 SCC 148
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additional evidence was required to be taken on record in order to pronounce
the judgment or for any other substantial cause. In case, the 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.
14. The aforesaid judgment of the Supreme Court was further clarified by
the Division Bench of this Court in the case of Hasanate Taheriyyah
Firdayyiah V/s. Mahesh2, wherein it was enunciated that the application for
adducing additional evidence under clause (a) or (aa) of Rule 27 of Order 41
can be decided at the stage prior to the hearing of the appeal. However, if the
case is covered by clause (b) of Rule 27, namely, where the Court finds that
such additional evidence is necessary for pronouncing the judgment or for
any substantial cause, the same has to be dealt with at the stage of
pronouncement of the judgment.
15. In the light of the aforesaid position in law, it is necessary to note the
reasons which weighed with the learned District Judge in rejecting the
application as severe criticism was mounted to the impugned order on the
ground that it is bereft of reasons. I have perused the impugned order. The
2 2014(2) MhL.J.884
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learned District Judge has narrated the nature of the claim in the suit, defence
thereto, the averments in the application to lead additional evidence and the
reply thereto, the submissions canvassed across the bar in paragraphs 1 to
15 and went on to reject the application by the following observations in
paragraph No.16 :
"16. I have considered the submissions of learned counsels for
rival parties, in the light of material on record as well as the
authorities cited by them. It is seen that document in list at Sr.
No.12 to 17 are came into existence after the decision of suit.
Document No.1 to 3 in the list of appellant are already referred
before trial court. The issues framed by trial court deciding the
fate of suit are already decided by court on the basis of evidence
available. In view of the above facts, I am of the view that
application is liable to be rejected, therefore, the order."
16. The criticism of Mr. Kandekar appears well merited. Only two
reasons, if they can be said to be so, seem to have been ascribed. First, the
documents at Sr. Nos.12 to 17 came into existence after the decision of the
suit and the document at Sr. Nos.1 to 3 were already referred before the Trial
Court. Second, the trial Court has already decided the issues which were
framed on the basis of the available evidence.
17. The learned District Judge, it appears, had not at all applied his mind to
the issue that arose for consideration in an application for adducing additional
evidence. Learned District Judge did not even consider under which clauses
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of Order 41 Rule 27, the application in question would fall. Nor the learned
District Judge posed unto himself the question as to whether the issue was
required to be decided before the final arguments in the appeal or at the stage
of the decision of the appeal, in case clause (b) of Order 41 Rule 27 applied.
By ascribing reasons which ex-facie do not fully address the aspect of
admissibility of additional evidence, the learned District Judge went on to
reject the application.
18. Reference to the decision of the Supreme Court in the case of Ibrahim
Uddin (supra), can also be made for laying emphasis on the necessity of
recording reasons in support of the decision. The observations in paragraph
No.44 read as under :
"44. It is a settled legal proposition that not only
administrative order, but also judicial order must be
supported by reasons, recorded in it. Thus, while
deciding an issue, the Court is bound to give reasons
for its conclusion. It is the duty and obligation on the
part of the Court to record reasons while disposing of
the case. The hallmark of order and exercise of judicial
power by a judicial forum is for the forum to disclose its
reasons by itself and giving of reasons has always been
insisted upon as one of the fundamentals of sound
administration of the justice - delivery system, to make
it known that there had been proper and due
application of mind to the issue before the Court and
also as an essential requisite of the principles of natural
justice. The reason is the heartbeat of every conclusion.
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It introduces clarity in an order and without the same,
the order becomes lifeless. Reasons substitute
subjectivity with objectivity. The absence of reasons
renders an order indefensible/unsustainable particularly
when the order is subject to further challenge before a
higher forum. Recording of reasons is principle of
natural justice and every judicial order must be
supported by reasons recorded in writing. It ensures
transparency and fairness in decision making. The
person who is adversely affected must know why his
application has been rejected. (Vide: State of Orissa
V/s. Dhaniram Luhar3; State of Uttaranchal V/s. Sunil
Kumar Singh Negi4; Victoria Memorial Hall V/s. Howrah
Ganatantrik Nagrik Samity5 and Sant Lal Gupta V/s.
Modern Co-op. Group Housing Society Ltd.6"
(emphasis supplied)
19. If the impugned order is appraised on the aforesaid touchstone, I find
substance in the submission of Mr. Kandekar that the impugned order is sans
reasons which may bear upon the determination of the question of
permissibility of the additional evidence before the appellate Court. Learned
District Judge simply did not pose questions which were required to be
determined. In substance, the impugned order singularly lacks reason and
suffers from the vice of non-application of mind, bordering on perversity.
Resultantly, the impugned order deserves to be quashed and set aside and
3 (2004) 5 SCC 568
4 (2008) 11 SCC 205
5 (2010) 3 SCC 732
6 (2010) 13 SCC 336
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the application for adducing additional evidence is required to be remitted
back to the learned District Judge for decision afresh.
20. Hence, the following order :
ORDER
(i) The Writ Petition stands allowed.
(ii) The impugned order dated 15 May 2015 stands quashed and set
aside.
(iii) The application (Exh. 14) stands restored to the file of the learned
District Judge.
(iv) Learned District Judge is requested to hear and decide the said
application (Exh. 14) afresh after providing an effective opportunity of hearing
to the parties and keeping in view the principles which govern the exercise of
jurisdiction to permit additional evidence at the appellate stage.
(v) By way of abundant caution, it is clarified that this Court has not
entered into the merits of the application seeking permission to adduce
additional evidence and all contentions of all the parties are kept open for
consideration by the District Court.
(vi) Rule made absolute to the aforesaid extent.
(vii) No costs.
( N.J.JAMADAR, J. )
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 01/04/2025 18:50:21
