Sunil Kumar Burman vs Rajesh Barman & Ors
2022 Latest Caselaw 1460 Cal

24.03.2022 Item No.22 Ct. No.7 CHC (disposed of)

C.O.448 of 2022 (Physical Hearing)

Sunil Kumar Burman Vs.

Rajesh Barman & ors.

Ms. Sudeshna Basu Thakur ...for the petitioner

Mr. Santanu Chatterjee, Ms. A. Chakraborty Mr. Rajendra Kr. Nandi ...for the opposite parties

Petitioner assails the order dated 24th January,

2022, passed by learned Civil Judge (Senior Division),

1st Court, at Asansol, in Title Appeal No.10 of 2019,

rejecting a petition under Order 41 Rule 27 C.P.C. filed

by the petitioner/appellant.

Admittedly, a suit for eviction of a licensee was

filed by the petitioner/plaintiff against the opposite

parties/defendants. The petitioner/plaintiff lost the

suit as the learned court below dismissed the suit ex

parte. The appeal was then carried against the ex parte

dismissal of the suit and in connection with appeal a

petition under Order 41 Rule 27 C.P.C. was filed,

which was rejected by the order impugned.

Ms. Sudeshna Basu Thakur, learned advocate

appearing for the petitioner upon adverting to the copy

of affidavit-in-chief of P.W.1 under Order 18 Rule 4

C.P.C, annexed with the instant revisional application

at page 14, marked as Annexure-'B', submits that the

reference of the deed of gift was very much disclosed in

the affidavit-in-chief in paragraph-'7' of such affidavit-

in-chief. But it is due to some inadvertent mistake on

the part of the conducting learned advocate, the same

could not be marked exhibit resulting serious prejudice

to the petitioner/plaintiff.

Mr. Chatterjee, learned advocate appearing for the

opposite parties disputes with the submission

advanced by the learned advocate for the petitioner

submitting inter alia that without fulfillment of the

conditions embodied in Order 41 Rule 27 C.P.C, there

cannot be a blanket order favourable to the purpose of

the petitioner in aid of Order 41 Rule 27 C.P.C.

It is strongly contended by Mr. Chatterjee that the

deed of gift sought to be marked exhibit cannot be

automatically marked exhibit without making due

adherence to the provisions of the law and more so,

there was deliberate suppression to get the same

tendered in evidence at the appropriate time of trial.

Upon perusal of the affidavit-in-chief of P.W.1, it

appears that in paragraph-'7', the petitioner already

disclosed the certified copy of deed of gift no.3242 of

the year 1993 of ADSR Office at Asansol requiring

proof in evidence so as to mark it exhibited. Therefore,

the relevant document, sought to be marked exhibit,

was disclosed at the time of trial.

Having considered the submission of both sides, it

appears that when the document sought to be marked

exhibit was disclosed in affidavit-in-chief of P.W.1, the

impugned order rejecting the application under Order

41 Rule 27 C.P.C. is not sustainable.

It is true that the general principle is that the

appellate court should not travel outside the record of

the lower court and cannot take any evidence in

appeal. However, as an exception, Order 41 Rule 27

CPC enables the appellate court to take additional

evidence in exceptional circumstnces.

Referrence may be drawn to a decision of Apex

Court delivered in the case of A. Andisamy Chettiar

v. A. Subburaj Chettiar, reported in (2015) 17 SCC

713, that 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 of the

additional evidence sought to be adduced.

Such test needs to be considered by first lower

appellate court.

Accordingly, the same is set aside with the

direction upon the learned Civil Judge (Senior

Division), 1st Court, at Asansol in Title Appeal No.10 of

2019 to hear afresh the application under Order 41

Rule 27 C.P.C. in context with the matters disclosed in

affidavit-in-chief of P.W.1, filed in Title Suit No.13 of

2015.

This Court however, clarifies that this order would

not cause automatic marking of the document as

exhibit, unless the required provisions of law are not

strictly adhered to.

With this direction/observation, the instant

revisional application stands disposed of.

Urgent certified photostat copy of this order, if

applied for, be given to the parties as expeditiously as

possible on compliance of all necessary formalities.

(Subhasis Dasgupta, J.)