Kulvindersingh S/O Late Sardar ... vs M/S Manish Entertainment Pvt. Ltd
2023 Latest Caselaw 233 Guj

     C/SCA/11816/2022                                ORDER DATED: 10/01/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 11816 of 2022

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      KULVINDERSINGH S/O LATE SARDAR DHARAMSINGH
                         Versus
           M/S MANISH ENTERTAINMENT PVT. LTD.
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Appearance:
NIKITA S BAROT(7417) for the Petitioner(s) No. 1
SANSKRUTI R SHUKLA(8913) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1
MR. HJ KARATHIYA(7012) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
       and
       HONOURABLE MR. JUSTICE RAJENDRA M.
       SAREEN

                           Date : 10/01/2023

                              ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

1. Rule. Mr.S.P.Majmudar, learned advocate, waives service of notice of rule for respondent.

2. With consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing.

3. By way of present petition filed under Articles 226 and 227 of the Constitution of India, the petitioner - original plaintiff has challenged an order dated 18.06.2022 passed by learned Principal District Judge, Kachchh at Bhuj below Exh.8 in Commercial Appeal No. 3 of 2022, by which, learned Appellate Court has rejected the application filed by the appellant - plaintiff under

C/SCA/11816/2022 ORDER DATED: 10/01/2023

Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code' for short).

4. Short facts arise from the record are as under:

4.1. That the appellant - plaintiff filed a suit being Commercial Suit No. 7 of 2020 ( Old Special Civil Suit No. 48 of 2008) in the Court of learned Principal Senior Civil Judge (Commercial Court) Gandhidham, Kachchh for recovery of Rs.32,88,224/-. Learned Principal Senior Civil Judge ( Commercial Court) Gandhidham, Kachchh by judgment and order dated 30.12.2021 dismissed the suit on completion of the evidence produced and led by the parties.

4.2. The said decision dated 30.12.2021 was challenged by the present appellant - original plaintiff by way of filing appeal being Commercial Appeal No. 3 of 2022 under Section 13 of the Commercial Court Act. The appellant - plaintiff has filed an application under Order XLI Rule 27 of the Code at Exh. 8 permitting him to produce certain documents to establish the case. The said application was opposed by the respondent - original defendant.

4.3. The Appellate Court, by order dated 18.06.2022, rejected the application on the ground that the appellant had failed to establish any reasons for not producing the said documents before the trial Court.

4.4. Hence, this petition.

C/SCA/11816/2022 ORDER DATED: 10/01/2023

5. Ms. Nikita Barot, learned advocate for the appellant - original plaintiff, would submit that learned Appellate Court ought to have permitted the appellant - plaintiff to produce certain documents to complete the justice to the parties and thereby, learned Appellate Court ought to have given opportunity to the appellant - plaintiff to prove the said documents. She would submit that it would have been in the fitness of the things that the Appellate Court could have delivered the judgment and order in appeal on all issues including the issue of limitation upon which the suit has been dismissed, since the petitioner wanted to produce the documents which establishes that the said suit was filed within a period of limitation. In support of the case, she has relied upon the decision of the Hon'ble Supreme Court in the case of Sanjay Kumar Singh V. State of Jharkhand reported in (2022) 7 SCC 247. Alternatively, she would submit that learned Appellate Court ought not to have rejected the application at Exh.8 and should have heard the appeal and at the time of hearing the appeal, the application at Exh. 8 filed by the appellant - plaintiff under Order XLI Rule 27 of the Code should have been decided. By relying upon the decision of the Hon'ble Supreme Court in the case of Union of India Vs Ibrahim Uddin reported in (2012) 8 SCC 148, she would submit that the petition be allowed and appropriate order may be passed.

6. On the other hand, Mr. S.P.Majmudar, learned advocate for the respondent, opposed this petition and supported the reasons assigned by the Appellate Court. By taking us through the application at Exh.8, he would submit that the appellant has not stated any reason for not producing the documents before learned Trial Court in the suit proceedings. As per the provisions

C/SCA/11816/2022 ORDER DATED: 10/01/2023

of Order XLI Rule 27 of the Code, the Appellate Court is precluded from permitting a party to produce the additional evidence unless the party establishes that on due diligence, the documents could not be produced and no such averments are made in the application. He would further submit that the application filed under Order XLI Rule 27 of the Code cannot be entertained to fulfill the lacuna, which resulted at the instance of the party who intends to produce those documents to fill the same. In support of the case, he has relied upon the decision in case of State of Gujarat V. Bharat Vijay Construction Co. reported in AIR 2021 Guj. 58.

7. We have heard learned advocates appearing for the respective parties.

8. Bare perusal of the application filed under Order XLI Rule 27 of the Code at Exh.8, which has been filed by the appellant - plaintiff, does not discloses any reason for producing the documents at appeal stage as provided under Order XLI Rule 27 of the Code. The party, who intends, to produce the additional evidence, whether oral or documentary, before the Appellate Court is supposed to establish that though there was due diligence on his part, the evidence was not within his knowledge or after exercise of due diligence, could not be produced by him. However, considering the ratio laid down by the Hon'ble Supreme Court in the case of Union of India Vs Ibrahim Uddin (Supra), we are of the opinion that the application, which has been filed under Order XLI Rule 27 of the Code, can be decided at the time of hearing of the appeal. The Hon'ble Supreme Court in the aforesaid decision in Para - 36 to 49 has held that such

C/SCA/11816/2022 ORDER DATED: 10/01/2023

application can be considered at the time of final hearing. The relevant paragraphs are as follows.

36. 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 XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553).

37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).

38. Under Order XLI , Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors. (supra) ].

C/SCA/11816/2022 ORDER DATED: 10/01/2023

39. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101).

40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.

41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.

42. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the Court of further appeal to see, if the discretion under this rule has been properly exercised by the Court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the Rule.

43. The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate Court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer

C/SCA/11816/2022 ORDER DATED: 10/01/2023

for the admission of the additional evidence, is not enough comp1iance with the requirement as to recording of reasons.

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. 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. Dhaniram Luhar, AIR 2004 SC 1794; State of Uttaranchal & Anr. v. Sunil Kumar Singh Negi, AIR 2008 SC 2026; The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity & Ors., AIR 2010 SC 1285; and Sant Lal Gupta & Ors. v. Modern Cooperative Group Housing Society Limited & Ors., (2010) 13 SCC 336).

45. In The Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H. Narayanaiah etc. etc., AIR 1976 SC 2403, while dealing with the issue, a three judge Bench of this Court held as under:

"We are of the opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it an opportunity should have been given to the appellant to rebut any inference arising from its insistence by leading other evidence."

(Emphasis added)

A similar view has been reiterated by this Court in Basayya I. Mathad v. Rudrayya S. Mathad and Ors., AIR 2008 SC 1108.

C/SCA/11816/2022 ORDER DATED: 10/01/2023

46. A Constitution Bench of this Court in K. Venkataramiah (Supra), while dealing with the same issue held:

"13. It is very much to be desired that the courts of appeal should not overlook the provisions of cl. (2) of the Rule and should record their reasons for admitting additional evidence..... The omission to record reason must, therefore, be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory."

(Emphasis added)

In the said case, the court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. In such a fact- situation, the order allowing such application did not vitiate for want of reasons.

47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record such application may be allowed.

48. To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.

49. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility

C/SCA/11816/2022 ORDER DATED: 10/01/2023

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 the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide: Arjan Singh v. Kartar Singh & Ors., AIR 1951 SC 193; and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053).

9. Considering the above aspects, we are of the opinion that the order passed by the Appellate Court requires to be quashed and set aside and accordingly, is quashed and set aside. Rule made absolute.

10. We hereby direct the Appellate Court to decide the application under Order XLI Rule 27 of the Code, at Exh.8 afresh, which has been filed by present appellant - plaintiff, at the time of hearing the appeal. Such application shall be dealt with in accordance with law considering all the contentions raised by all the parties and without being influenced by the earlier order dated 18.06.2022 passed by the Appellate Court itself.

(A.J.DESAI, J)

(RAJENDRA M. SAREEN,J) *F.S.KAZI.....