Sri Ratan Kumar Majumder vs Sri Subhas Majumder & Anr
2023 Latest Caselaw 615 Cal

19.1.2023
   205
Ct. no. 652
    sb
                                   CO 526 of 2012


                              Sri Ratan Kumar Majumder
                                         Vs.
                              Sri Subhas Majumder & Anr.


                      Ms. Debolina Lahiri
                      Mr. Mrinmoy Chatterjee
                      Ms. Teresa Chetri                  ...for the petitioner

                      Mr. Nirmalendu Bera
                      Mr. Raja Biswas
                      Mr. Abhijit Sarkar  ...for the Opposite parties


                      Being aggrieved and dissatisfied with the order no.

              11 dated 8.12.2011 passed by the learned Civil Judge

              (Senior Division), Ranaghat, Nadia in Title Appeal no. 08

              of 2010, the present application under Article 227 of the

              Constitution of India has been preferred.

                      The petitioner contended that petitioner had filed a

              suit being title suit no. 13 of 2007 before the court of

              learned Civil Judge (Junior Division), 1st Court, Ranaghat,

              Nadia    seeking   relief   inter   alia    for   temporary      and

              permanent injunction restraining the defendants from

              illegally dispossessing the plaintiff from the suit shop and

              from closing down the business of the plaintiff from the

              suit shop. Learned trial court dismissed the suit against

              which the plaintiff/petitioner has preferred aforesaid

              appeal being Title Appeal no. 08 of 2010.

                      Ms. Lahiri, learned advocate for the petitioner

              submits where possession of the plaintiff is admitted and
                      2




the plaintiff is in settled possessions, such possession

cannot be disturbed without adopting due legal process

and learned court should have decreed the suit by

granting injunction to protect the possession of the

plaintiff in the suit property. During pendency of the

aforesaid    Title       Appeal     no.     8     of      2010,      the

plaintiff/petitioner filed a petition under Order XLI rule

27 read with Section 151 of the Code for adducing

evidence in the interest of justice, on the ground that

during the trial in the trial court, the appellant could not

submit some relevant documents as the same were

misplaced and recently found, which were kept in an old

wooden almirah and some documents were in the custody

of the petitioner/appellant, which are required to be

produced and proved to adjudicate dispute between the

parties completely and effectively and for pronouncing

judgment by the appellate court.

      Learned first appellate court was pleased to reject

the said application under Order XLI Rule 27 on the

ground that the plaintiff appellant did not pray before the

trial court and he took sufficient time for searching

documents but did not find and court delivered the

judgment. The plaintiff/appellant did not take any step

for three years before the date of judgment and he was

not at all diligent till judgment and it is not the case of

the   petitioner     that   lower   court       refused    to     accept

plaintiff's documents or has not granted time to file the
                   3




documents.     Moreover,     some     of   the    documents,

plaintiff/petitioner wants to prove, were executed after

the judgment has been passed by the trial court and

accordingly those documents are not relevant for the

adjudication of the suit or the appeal.

      Learned counsel for the petitioner in this context

further submits that the court below has erred in

rejecting the prayer for additional evidence because all

those documents are very much required to support the

plaintiffs case of settled possession in the suit shoproom

till date. She further submits that the question of refusal

by the learned trial court to accept the documents does

not arise as the documents came to the hands of plaintiff

on subsequent dates. Learned trial court should have

considered the nature of the additional evidence prayed to

be adduced and that such additional evidence would not

introduce       any      new        case     against       the

defendant/respondent       and    accordingly     the    order

impugned is arbitrary, whimsical and perverse.

Learned counsel for the opposite party supports the

impugned order and contended that the learned first

appellate court has rightly held that plaintiff did not pray

before the trial court and he took sufficient time for

searching the documents but did not produce the same

before delivery of judgment. The plaintiff was not at all

diligent till delivery of judgment and such prayer cannot

be allowed at this stage as it is not the case of the plaintiff

that the court below refused to admit those documents.

He also pointed out showing list of documents that some

of the documents were executed after delivery of

judgment and some are undated. So it is not

ascertainable from the undated documents as to whether

they were issued before or after judgment. As the plaintiff

was not at all diligent, so plaintiff is not entitled to pray

for additional evidence before the appellate court.

I have considered the submissions made by both

the parties.

It is the case of plaintiff that the mother of the

parties namely, Arati Majumder got the property from

trust committee represented by its Secretary, Makhan Lal

Debnath which fact has not been denied by the

defendants. From the prayer portion of the plaint, it

appears that the plaintiff has only prayed for an

injunction restraining defendants from dispossessing the

plaintiff from the suit property. It further appears that the

defendant has not disputed the plaintiff's possession in

the suit property. Learned trial court while delivering

judgment and while disposing issue no. 3 and 4 was

pleased to observe that on perusal of the documents filed

by the plaintiff, it does not appear that the property is

trust property and at what footing property was handed

over, though it is admitted by both the parties that their

mother was the title holder of the suit shoproom. She

further observed that from the documents it also reveals

that the plaintiff had taken loans but Exhibit 5 does not

support that loan was taken by mortgaging suit property.

Learned trial court held that no document filed by

plaintiff showing his title alone so on the basis of

plaintiff's deposition only, it cannot be said that the

plaintiff is the owner of the suit property. There is nothing

to show that the suit shoproom exist on plot no. 502.

Accordingly, the trial court came to the conclusion that it

is a cardinal principle of law that plaintiff will have to

prove his own case and also his sole ownership in the

property over plot no. 502 measuring 10ft/8ft and/or

three parted shop. So the trial court came to the

conclusion that the plaintiff have not succeeded in

proving the case and suit was accordingly dismissed.

As has already been stated that the plaintiff had

filed aforesaid suit only for injunction and there is no

prayer for declaration of title. It is also not in dispute that

the plaintiff is in possession of the property. The settled

position of law is that a person who is in possession, is

not liable to be dispossessed without taking due course of

law. On perusal of the documents which were sought to

be proved by way of additional evidence, goes to show

that all those documents relate to plaintiff's attempt to

prove that he is in settled possession of the property in

question. As plaintiff's case is that he is in settled

possession and prayed for restraining defendants from

disturbing his settled possession without taking due

course of law, the observation of trial court, that plaintiff

failed to prove his sole ownership, is perverse and trial

court has confused plaintiff's possessory right with

plaintiff's sole ownership.

The first appellate court held that the additional

evidence can be permitted to be given by court in four

circumstances, out of which one condition is for "any

other substantial cause". The appellate court held that as

he does not find due diligence on the part of the

plaintiff/appellant to produce and prove those documents

at the time of trial and as some documents have been

executed after passing the decree so such documents

cannot be permitted to be adduced in evidence.

Now the subject matter of determination of the

present suit is whether the plaintiff's possession in the

property is liable to be disturbed by the defendants or

not, if he is in settled possession and whether he is

entitled to get the order of injunction as sought for or not.

In the light of above, the court below is required to judge

while adjudicating appellant's petition under order XLI

rule 1 whether the documents sought to be proved by way

of additional evidence would determine the fate of the suit

and fate of the appeal. The word " or for any substantial

cause" used in Order XLI rule 27 came up for

interpretation before the Hon'ble Supreme Court and it

was held by the Apex Court in Andisamy Chettiar Vs.

Subburaj Chettair reported in (2015) 17 SCC 713 in

paragraph 18 as follows:

"18. We have considered the argument advanced on behalf of the appellant and also perused the law laid down by this Court as to the exercise of revisional power under Section 115 of the Code in such matters. In Mahavir Singh v. Naresh Chandra [Mahavir Singh v. Naresh Chandra, (2001) 1 SCC 309] , explaining the scope of revision in the matters of acceptance of additional evidence by the lower appellate court interpreting expression "or for any other substantial cause" in Rule 27 of Order 41, this Court has held as under: (SCC p. 314, para 5) "5. ... The words 'or for any other substantial cause' must be read with the word 'requires', which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply as noticed by the Privy Council in Kessowji Issur v. Great Indian Peninsula Railway Co. [Kessowji Issur v. Great Indian Peninsula Railway Co., 1907 SCC OnLine PC 9 : (1906-07) 34 IA 115 : ILR (1907) 31 Bom 381] It is under these circumstances such a power could be exercised. Therefore, when the first appellate court did not find the necessity to allow the application, we fail to understand as to how the High Court [Naresh Chandra v. Mahavir Singh, 2000 SCC OnLine P&H 610 : (2001) 2 ICC 273] could, in exercise of its power under Section 115 CPC, have interfered with such an order, particularly when the whole appeal is not before the Court. It is only in the circumstances when the appellate court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order 41 Rule 27 CPC, the whole appeal was before it and if the first appellate court is satisfied that additional evidence was not required, we fail to understand as to how the High Court could interfere with such an order under Section 115 CPC."

From the said judgment it is clear that it is only in

the circumstances when the appellate court requires the

additional evidence for pronouncing judgment, the prayer

for adducing evidence would be allowed. Here for the

pronouncement of judgment by the appellate court what

is required to be ascertained by the appellate court, is the

appellant/plaintiff's possession in the property and for

that purpose whether he is entitled to get injunction or

not. In this context, it can be said that though it is the

general rule that the appellate court should not travel

outside the record of the lower court and cannot take any

evidence in appeal and order permitting the appellant to

adduce additional evidence is allowed only in exceptional

cases but the true test is whether the documents which

are sought to be proved has a direct and important

bearing on the real controversy in the suit and whether or

not the appellate court requires the additional evidence so

as to enable it to pronounce judgment. In the case of

Andisamy Chettiar Vs. Subburaj Chettair reported in

(2015)17 SCC 713 it was clearly held 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

sough to be adduced to enable it to pronounce judgment

or for any other substantial cause. It was further

observed that 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.

In view of the aforesaid discussions and to complete

justice to the parties, I think that it would be just and

proper to direct the first appellate court to decide the

application for additional evidence afresh in the light of

observations made by this court regarding principles on

which such application for additional evidence can be

allowed or rejected. The case is remanded back to the

appellate court namely, learned Civil Judge (Senior

Division), Ranaghat, Nadia to consider afresh the

application under order XLI rule 27 of the code in the

light of aforesaid observations regarding principle

applicable for disposal of such application made in the

body of this judgment within a period of 12 weeks from

the date of communication of the order.

C.O. 526 of 2012 is accordingly disposed of.

Urgent photostat certified copy of this order, duly

applied for, be given to the parties upon compliance of all

requisite formalities.

(Ajoy Kumar Mukherjee, J.)