Anr vs Haradhan Mondal And Others
2023 Latest Caselaw 1617 Cal

13.03.2023



                      C.O. 2593 of 2022


         Malidanga Reijendra Memorial Institution and
                            Anr.
                          -versus
               Haradhan Mondal and Others.



                  Mr. Biswajit Hazra
                  Mr. Tanmoy Mukherjee
                  Mr. Archisman Sain
                       ...For the Petitioners.
                  Mr. Narayan Debnath
                  Mr. Bishalazmi Ghosh
                       ...for the Opposite Party No.1.


                  The petitioners before this court are the

             appellants in the learned court below and is

             aggrieved by an order of rejection of an

             application made by them under Order 41

             Rule 27 of the code of civil procedure. The

             petitioner being aggrieved by the order no61

             dated15/07/2022       passed    by    Learned

             Additional District Judge (FTC)Kalna Purba

             Burdwan has come up with the instant

             Revisional Application.
          The     case     of   the    petitioner      may    be

  summed up thus.

1.

The petitioner no-1/defendant/appellant is a

government sponsored educational institute

namely Maldanga Rajendra Memorial

Institution (H.S) situated at village and Post

Office Maldanga, police Station-Manteswar,

District Purba Bardhaman.

2. There is a plot of land under Mouja

KhanpurC.S. Khatian No737, plot Number

851, under block-Monteswar, District-Purba

Bardhaman, measuring about13decimals. The

original owners of the aforesaid plot of land

were one Jatindra Nath Singha, Tinkari

Singha, Gokul Chandra Singha and

Nityananda Singha and after the demise of

said Nitya Nanda Singha his two sons namely

Shyamapada Singha and Sankari Prasad

Singha became the successor of said Nitya

Nanda Singha.

3. That being the education enthusiasts the

persons aforesaid Tinkari Singha ,Nityananda

Singha gifted the said plot of land by way of an

unregistered deed of gift dated 15/02.1949 to the said School, which is the petitioner no 1

herein and since then the petitioner no1 is

under enjoyment and/or possession of the said

plot of land .It is also pertinent to say that, the

people of the concerned area know that the

said plot of land is possessed by the petitioner

No. 1/said school by virtue of the said gift

made by the aforesaid education enthusiasts

persons namely Tinkari Singha, Nityananda

Singha and JatindraNath Singha and till date

the aforesaid plot of land is being used by the

said school authority for the purpose of

education.

4. The plaintiffs/opposite party No. 1 purchased

the aforesaid plot of land/suit property from

the legal heirs of the said Tinkari Singha

Nityananda Singha and Jatindra Nath Singha

by way of a registered deed of sale. The

opposite party number one is as much as

knowledgeable like other people of the area

concerned that, the suit property has been

gifted to the said school, which is the

petitioner No. 1 herein, by virtue of a deed of

gift dated15/02/1949 and since then it is the possession under the petitioner No. 1, despite

of that, the opposite party No. 1 executed the

various deed of sale with the heirs of the

aforesaid donors of the suit property.

5. Thereafter the opposite party Nos. 2 filed a suit

for declaration with consequential relief being

title suit No.269 of 1999 in the court of

Learned Munsif at Kalna, District- Purba

Bardhaman (formerly known as District -

Burdwan) against the petitioners in respect of

the aforesaid plot of Land and after receiving

the summons the petitioners made it's entry in

the said suit proceedings. Ultimately the said

suit came up for hearing on different dates and

decreed on contest against the Defendant No.

1 and 2/petitioners and ex-parte against the

rest.

6. The petitioners being aggrieved by the

Judgment and Decree passed by Learned Civil

Judge (Junior Division) Kalna Purba

Burdhaman in Title Suit No-269 of 1999

preferred an appeal against the said Decree

which is pending before Learned Additional District Judge (FTC) Kalna Purba Bardhaman

being Title Appeal No-16 of 2018.

7. During the pendency of the appeal the

petitioners filed an Application under Order 41

Rule 27 of the Code of Civil Procedure for

production of one certified copy of registered

deed of sale being I-1865/1993 as an

additional evidence in the Learned Court of

Appeal below. The said Sale Deed was

executed at sub-registry office at Monteswar by

one Jugal Kishor Singha son of Late Jatindra

Nath Singha in respect of Suit plot No. 851.

8. On 15th July 2022 Learned Court of Appeal

upon hearing the parties was pleased to reject

the application under Order 41 Rule 27 of the

Code of Civil Procedure.

The petitioners being aggrieved by the

Order dated 15th July 2022 passed by Learned

Additional District Judge (FTC) Purba

Bardhaman in TA-16 of 2018 has come up

with the present application.

It is the contention of the petitioners that

the Learned Additional District Judge (FTC), passed the impugned Order without applying

the Judicial mind. It is further contended that

additional evidence is required to be produced

before the Learned Court of Appeal for the

purpose of Justice and for adjudication of the

said Appeal. It is also contended that the

Learned Judge acted illegally in not

considering the statement of fact contained in

the said application under Order 41 Rule 27 of

the Code made by the petitioners.

Heard Learned Advocate for the

petitioners and Learned Advocate for the

opposite parties perused the petition filed and

materials on record.

It appears from the Order dated 15-07-

2022 that the Learned Additional District

Judge (FTC) Kalna Purba Bardhaman was

pleased to reject the application under Order

41 Rule 27 of the Code of Civil Procedure by

observing and directing as follows:

'this is a case between plaintiff and the

defendant and even after lapse of 20 years the

said stranger purchaser Jnanendra Singha has neither come up before this court nor

before the Learned Trial Court to claim his

right, title and interest in respect of 1 decimal

of land in plot no. 851 and as such I do not

find any reason as to why the appellant is so

much eager to establish the claim of the said

stranger purchaser in respect of the said

portion of land as mentioned in registered sale

deed sought to be introduced by way of

additional evidence when the said document is

surely not going to improve the claim of the

appellant/defendant rather it has the effect of

nullifying the same. Thus I find that the

appellant has failed to establish that in the

absence of the said registered deed, judgment

cannot be pronounced.

Considering the facts and circumstances

of the case and upon careful perusal of the

registered sale deed I am of the opinion that

the appellant has failed to satisfy the basic

ingredients of Order 41 Rule 27 CPC required

for admitting the said deed as additional evidence. Accordingly, the petition under Order

41 Rule 27 CPC is liable to be rejected.'

In Order to decide the validity of the

impugned Order it is necessary to consider the

provisions contained in Order 41 Rule 27 of

the Code of Civil Procedure and some judicial

pronouncements. Order 41 Rule 27 of the

Code of Civil Procedure provides as follows:

1) 'The parties to an appeal shall not be

entitled to produce additional evidence

whether real 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.'

In the case of Deputy Commissioner

Taluka Social Welfare officer and another V

Channaveeryya and another 2013 (2) Civil

LJ 690 (kant) where an application under

Order XLI Rule 27 CPC was filed by

appellants/petitioners seeking permission

for production of documents in pending first

appeal it was held that the Appellate Court

ought to have considered the application

under Order XLI Rule 27 CPC, along with

the appeal hence the first Appellate Court

committed error and illegality in taking the

said application for consideration without

taking up the appeal for consideration. The

procedure adopted by the Court below was held

irrational and the Order under challenge

was held illegal. Therefore the Order under

challenge was set aside and the Court below

was directed to examine the said application

along with appeal and decide the matter in

accordance with law.

In the case of Bijay Kumar Bannerjee Vs

Smt. Malati Bannerjee reported in AIR-2007

Ori 155 the Hon'ble Court observed as

follows:

'If a petition under Order XLI Rule 27

CPC is filed the Appellate Court may

postpone consideration of the said petition

till hearing of the appeal and should take up

the same at the time of hearing of the

appeal on merits, so, as to find whether the

documents and/or evidence sought to be

adduced have any relevance or bearing in

the issues involved. In the instant case the

documents sought to be introduced being

all materials on record and as judgment in

an earlier Suit and as the same had a

bearing on the issues to be decided by the Court, therefore it can be said that the said

documents were necessary for a just

decision of the case.'

In the case of Anima Das Sharma Vs

Dr Lawrence Trevas reported in (1976) 2

CAL LJ. 243 it was observed that Appellate

Court has power under Order XLI Rule 27 to

admit additional evidence where the Court

feels that in the interest of Justice

something which remains obscure should

be cleared up so that Court may pronounce

judgment in a more satisfactory manner.

Negligence of a party in adducing evidence

before Trial Court is no bar when Court

itself requires for a satisfactory decision.

Thus from the decisions referred above it

will appear that Court of Appeal can permit

additional evidence in the interest of Justice

irrespective of the fact that there was

negligence of the party concerned who seeks

to adduce additional evidence.

In the instant case the petitioner no-1 is

the Government sponsored School

imparting education, which is the basic requirement in a society. The petitioners

who have already suffered a decree of

eviction in the suit will have to hand over

possession of the suit property where the

School is run which will affect the education

of several students unless the decree is set

aside in appeal. It is thus the duty of the

petitioners in public interest to produce

relevant documents in appeal as evidence

even if the same could not be produced

during trial either due to negligence or due

to the non-availability of the same. Thus the

relevant documents may be produced in

appeal as evidence if the same protects the

valuable right of a party and enables him to

get the relief. It is a well settled principle of

law that parties in a suit has obligation to

disclose all material facts before the Court.

In the event any party suppresses any

material fact before the Court the opposite

party may disclose the said material fact

whenever it comes to his knowledge and the

Court at any stage of the proceedings is

empowered to take cognizance of the said facts. Thus the Court of Appeal while

considering petition under Order 41 Rule 27

of the Code of Civil Procedure should

consider that whether in the interest of

Justice something which remains obscure

should be cleared up so that Court may

pronounce judgment in a more satisfactory

manner and should not give priority to the

issue of negligence.

In the instant matter the deed of sale

relied upon by the petitioners should be

considered as to whether by virtue of the

said deed of sale right of the plaintiff

opposite party no-1 in the suit property is

partly extinguished or not and the

petitioners/defendant no-1 and 2 have a

better right of possession or not. However

these facts are to be taken into

consideration along with the hearing of the

Appeal and not in isolation.

         In   the    facts     and       circumstances

  discussed         above           this     Revisional

Application stands allowed. Order dated

15/07/2022 passed by Learned Additional District Judge (FTC) Kalna

Purba Bardhaman in Title Appeal 16 of

2018 is set aside. The matter is remitted

back to the Learned Court below to

consider the application under Order 41

Rule 27 of the Code of Civil Procedure

filed by the Appellant along with the

hearing of the Appeal.

(Biswaroop Chowdhury,J)