Ram Prasad Chowdhury @ Ram Prasad ... vs Debu Chamar
2021 Latest Caselaw 3406 Jhar

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                IN THE HIGH COURT OF JHARKHAND AT RANCHI

                              C.M.P. No. 176 of 2021

1. Ram Prasad Chowdhury @ Ram Prasad Singh Chowdhury
2. Kali Prasad Choudhary
                ...     ... Petitioners/Respondent Nos. 1 & 2(b)/Plaintiff Nos. 1 & 2(b)

-Versus-

1. Debu Chamar

2. Madan Das

3. Jitan Das

4. Manoj Das

5. Parvati Devi

6. Arjun Das

7. Vishal Das

8. Karan Das

9. Vilas Devi

10. Bhuneshwar Kumar Das

11. Sangeeta Devi

12. Naina Devi

13. Bhuneshwar Das

14. Laldhari Das

15. Sushila Das ... ... Respondents/Appellants/Defendants

16. The State of Jharkhand through Chief Secretary, Government of Jharkhand

17. The Deputy Commissioner, Dhanbad

18. The Additional Collector, Dhanbad

19. The Sub-Divisional Officer, Dhanbad

20. The Land Reforms Deputy Collector, Dhanbad

21. The Circle Officer, Govindpur, District- Dhanbad

CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioners : Mr. Sudhir Kumar Sharma, Advocate For the State : Ms. Amrita Banerjee, A.C. to S.C.-V

Order No. 06 Dated: 14.09.2021

The present case is taken up through video conferencing.

2. The present Civil Miscellaneous Petition has been filed for quashing the order dated 07.06.2021 passed by the District Judge-VIII, Dhanbad in Civil Appeal No. 51 of 2019 whereby the petitions dated 26.02.2021 and 01.03.2021 both filed by the petitioners under Order XLI rule 27 read with Section 151 of CPC making payer to pass an order for taking certain documents as additional evidence as well as petition dated 01.03.2021 filed under Order VI rule 17 read with Section 151 of CPC seeking amendment of plaint at appellate stage have been dismissed with cost of Rs.5,000/- each i.e Rs.15,000/-.

3. The learned counsel for the petitioners submits that the plaintiffs/ petitioners/their ancestors had preferred a suit being T.S. No. 150 of 2006

for declaration of their right, title, interest and confirmation of possession over the land situated at Mouza- Chhota Pichhari, Mauza No. 85, P.S - Barwadda, District -Dhanbad under Khata No. 123, Plot No. 1226 measuring an area of 1 acre, plot No. 1206 measuring an area of 68 decimals and plot No. 1605 measuring an area 33 decimals (in total 2.01 acres) (hereinafter to be referred as "the said land"). It was further prayed by them for a decree of declaration that the settlement made by the respondent-State in favour of the private respondents/their ancestors for the said land is null and void and not binding on the plaintiffs/ petitioners and also for a decree of permanent injunction, restraining the defendants/respondents, their men, agents, staff and officials from interfering with the peaceful possession of the plaintiffs over the said land and also not to give delivery of possession of the same to the private respondents/their ancestors. The said suit was decreed in favour of the petitioners/their ancestors vide judgment dated 15.02.2019 (decree prepared on 23.02.2019) passed by the Civil Judge (Jr.Div.)-I, Dhanbad. Aggrieved with the said order, the private respondents preferred appeal being Civil Appeal No. 51 of 2019 and during the pendency of the said appeal, the petitioners preferred petitions dated 26.02.2021 and 01.03.2021 both under Order XLI rule 27 read with Section 151 CPC seeking the permission of the court to bring on record certain documents as additional evidence at the appellate stage. The petitioners also preferred a petition under Order VI rule 17 read with Section 151 CPC dated 01.03.2021 praying certain amendments in the plaint. However, all the three petitions were rejected by the learned Additional District Judge- VIII, Dhanbad vide a common order dated 07.06.2021 and cost of Rs.5000/- each i.e total Rs.15,000/- was imposed upon them to be paid to the private respondents/appellants.

4. Learned counsel for the petitioners submits that the learned court below failed to appreciate that the proposed amendments as well as the documents sought to be adduced at the appellate stage were necessary for determining the real questions in controversy between the parties. It is also submitted that Khata No. 123 is actually recorded in Khewat No. 8 and not in Khewat No. 1/2 which happened due to inadvertence and as such the amendment of the plaint as sought by the petitioners was essential for the effective adjudication of the appeal. The learned court

below also failed to construe the provisions of section 107(2) CPC and did not exercise the jurisdiction vested in it. It is further submitted that from the averments made in the plaint as well as in the written statement of defendants and the evidence on record, it would appear that there is no dispute that the predecessors of the plaintiffs/petitioners were the tenure holders and Gandhori Choudhary (grandfather of the petitioners) was the landlord who had submitted the return/statement of the land in his khas possession at the time of vesting of Zamindari interest under the provisions of the Bihar Land Reforms Act, 1950. The learned court below further failed to appreciate that the documents which the petitioners wanted to bring on record were necessary for arriving at a definite finding for which substantial pleading was already there in the plaint and it would not change the nature of the dispute. Learned counsel for the petitioners in support of his submission puts reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale (D) & Others reported in (2007) 6 SCC 737.

5. Per contra, learned A.C to S.C V appearing on behalf of the respondent-State, opposes the submission of the learned counsel for the petitioners and submits that the petitioners failed to show cogent grounds before the learned court below for adducing evidence at appellate stage and as such the learned court below rightly rejected the petitions filed by the petitioners. It is further submitted that the petitioners were trying to bring certain new facts at the appellate stage which the learned court below did not find necessary for determination of the appeal. As such, the amendment petition filed by the petitioners was also rejected.

6. Heard learned counsel for the petitioners as well as the respondent-State. I have also perused the materials available on record including the impugned order dated 07.06.2021 passed by the court below. It is evident that during appellate stage of the case and even after conclusion of the argument of the private respondents as well as State respondents, the petitioners filed petitions dated 26.02.2021 and 01.03.2021 both under Order XLI rule 27 read with Section 151 CPC to bring on record one information slip dated 27.01.2020 obtained from the Circle Officer, Govindpur, Dhanbad (the respondent no. 21 herein) stating that C.S. Khata number 123 was subsequently changed to R.S. Khata

number 113 and similarly C.S. plot no. 1206 was converted into R.S. Plot no.1680 as well as C.S Plot Nos. 1226 and 1227 were converted into R.S. plot Nos. 1639 and 1640 respectively. It was claimed by the petitioners that the said evidence would connect the details of the Cadestral Survey to Revisional Survey and it would help the court to effectively decide the issue in question. The learned court below, however, rejected the plea of the petitioners by holding that the suit was based on C.S. Khatiyan and the plaint did not mention R.S. Khatiyan as also the said issue was neither framed nor contested during the trial of the suit. As such, the proposed amendments would change the nature and character of the suit which could not be taken on record.

7. The petitioners also filed petition dated 01.03.2021 under Order XLI rule 27 CPC to bring on record the certified copy of Khewat Nos. 2/1, 2/2 and 2/3 of Mouza- Chhota Pichhari and certified copy of decree passed in Mortgage Suit No. 243 of 1948 stating that the said documents could not be filed during the trial as the same were not available with the petitioners. The court below rejected the said petition of the petitioners by holding that the petitioners had contested and succeeded in the suit based on Khewat No. 8 and as such they would not be allowed to bring on record new Khewat Nos. 2/1, 2/2 and 2/3. It was further held that the certified copy of Mortgage Suit No. 243 of 1948 was filed with a view to show that Gandhori Choudhary was the predecessor-in-interest of the petitioners, however the said fact was not pleaded in the plaint and just to fill up the lacuna in the plaint, the said document was filed and as such the same could not be permitted to be brought on record.

8. On bare reading of Order XLI rule 27 of CPC, it would appear that no additional evidence can be produced by either of the parties in the appellate court. However, three exceptional situations have been provided under which the appellate court may allow such evidence or document to be produced or witness to be examined. Sub-rule 1(a) of rule 27 CPC permits the production of additional evidence at appellate stage when the original court which passed the decree had refused to admit certain evidence which ought to have been admitted. Sub-rule 1(aa) of rule 27 CPC provides that if it is established that even after 'due diligence', the party seeking to produce additional evidence had no knowledge of the same or the same could not be produced by him even after exercise of

'due diligence' at the time of passing the decree, the appellate court may allow for the production of additional evidence even at appellate stage. Sub-rule 1(b) of rule 27 CPC gives discretion to the appellate court to require any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause.

9. In the case of Union of India Vs. Ibrahim Uddin & Another reported in (2012) 8 SCC 148, the Hon'ble Supreme Court has held as under:-

"Order 41 Rule 27 CPC

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 41 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, the provision does not apply, when on the basis of the 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 [AIR 1963 SC 1526] , Municipal Corpn. of Greater Bombay v. Lala Pancham [AIR 1965 SC 1008] , Soonda Ram v. Rameshwarlal [(1975) 3 SCC 698] and Syed Abdul Khader v. Rami Reddy [(1979) 2 SCC 601] .)

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 v. Mohd. Iqbal and Mohd. Ali and Co. [(1978) 2 SCC 493] )

38. Under Order 41 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 [AIR 1965 SC 1008] .)

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 [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 the 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.

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 an 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 conditions 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.

10. Thus, leading of evidence at appellate stage is an exception to the normal rule. A party to appeal cannot claim for leading evidence at the appellate stage as a matter of right. It is a discretionary power of the court to decide as to whether the evidence sought to be adduced is of such a nature which would enable to the court to pronounce judgment effectively and the said evidence could not be produced before the court below in spite of his due diligence. The court is however required to record reasons while admitting evidence at the appellate stage.

Inadvertence/negligence, either of the counsel or of the aggrieved party, cannot be a ground to adduce additional evidence at the appellate stage.

11. I am of the considered view that the petitions dated 26.02.2021 and 01.03.2021 were filed by the petitioners under Order XLI rule 27 read with Section 151 CPC to bring on record some documents just to patch up the lacuna in the evidence as was found in course of hearing of the appellants. The petitioners also failed to show before the court below that despite exercise of due diligence, such evidence was not within their knowledge. Moreover, the information obtained from the Circle Officer, Govindpur, Dhanbad could have been obtained by the petitioners at the time the suit was pending before the trial court, however they failed to do so. While passing the judgment, the trial court recorded "further from the revisional survey, it is clear that during the revisional survey operation which was finally published in the year 1992, the possession of Mahadev Choudhary has been shown over plot no. 1640 and 1639 of Khata No. 113 and from the information slip filed, it is clear that plot no. 1639 and 1640 were made from old plot no. 1226 and 1227. However, no information regarding the new plot number of plot nos. 1205 and 1206 has been given." It seems that the petitioners, just to fill up the said lacuna tried to bring on record the information slip obtained from the Circle Officer, Govindpur, Dhanbad. Had the petitioner shown due diligence, the same would have been obtained while the trial was in progress. Certified copy of Khewat Nos. 2/1, 2/2 and 2/3 and the decree of Mortgage suit No. 243 of 1948 are also not of much relevance so as to pronounce the judgment in appeal since the same are the new facts which were not incorporated in the plaint.

12. It further appears that a petition dated 01.03.2021 was filed by the petitioners under Order VI rule 17 read with section 151 CPC stating that Khata No. 123 actually lies in Khewat No. 8 however due to inadvertence, Khewat Number 1/2 was written in the plaint in place of Khewat No. 8. They further wanted to add some facts in the plaint regarding inheritance that the Khewat no. 2/2 stands recorded in the name of Ram Sundar Choudhary whereas Khewat no. 2/3 stands recorded in the name of Kodo Choudhary. The court below rejected the said prayer of the petitioners observing that the petitioners failed to show that in spite of due diligence, they could not raise the said aspect before commencement of the trial,

rather the amendment petition was filed as a matter of course on general grounds. It was further found that the said fact was not necessary for determining the real controversy between the parties.

13. It is a trite law that though the court has power to allow a petition for amendment at any stage of the suit which is necessary for the purpose of determining the real questions in controversy between the parties, yet by way of the proviso to Order VI rule 17 of CPC, certain restriction has been put to cases where amendment petitions are filed after commencement of trial. Thus, the stages of the cases has been divided into two parts for dealing with the amendment petitions; one is before the commencement of trial wherein a petition for amendment may be allowed to determine the real issue in controversy and the other is after the commencement of the trial where before allowing the amendment petition, the court has to be satisfied that the party seeking amendment properly explains that in spite of due diligence, he/she could not raise the matter before the commencement of trial. This requirement is to be mandatorily followed by the courts.

14. In the case of Mehboob-Ur-Rehman(dead) through Legal Representatives Vs. Ahsanul Ghani, reported in (2019) 19 SCC 415, the Hon'ble supreme Court has observed that the plaintiff-appellant had failed to aver and prove his continuous readiness and willingness to perform his part of the contract and the trial court made a rather assumptive observation that he had proved such readiness and willingness. Thereafter, the plaintiff sought leave to amend the plaint only when the ground to that effect was taken in the first appeal by the defendant. Their Lordships have held that it was too late for the plaintiff- appellant to fill up such a lacuna in his case at the appellate stage.

15. In the present case also, after conclusion of hearing of the appellants, the petitioners tried to amend the plaint to fill up the infirmities in the plaint which could not be allowed at such a belated stage. The petitioners also failed to show before the court below as to in what manner such fact was essential to pass the judgment in appeal. Inadvertence cannot be a ground to amend the plaint at the appellate stage. Otherwise also, the schedule of the property mentioned in the plaint as also the decree do not mention those Khewat numbers which were sought to be included and as such the court below has rightly

observed that the proposed amendment would not help it in pronouncing the judgment in appeal. It is also revealed that the petitioners had failed to correlate the relationship of Khewatdar Kodo Choudhary and Ram Sundar Choudhary with Gandhori Choudhary in the plaint which the petitioners wanted to add by way of proposed amendment at the appellate stage. They further tried to replace Khewat No. 1/2 with Ezmal Khewat no. 8 and further to incorporate Khewat Nos. 2/2 and 2/3 which belonged to Ram Sundar Choudhary and Kodo Choudhary respectively. I therefore find that by seeking such amendment, the petitioners did not want to correct a clerical/arithmetical error, rather they want to incorporate additional facts to fill up the lacuna in the plaint which is not permissible to be incorporated at the stage of final hearing of the appeal.

16. This court has no confusion with the proposition laid down by the Hon'ble Supreme Court in the case of Tilak Raj Vs. Baikunthi Devi (Dead) by LRs. reported in (2010) 12 SCC 585 that since the court exists to dispense justice, any mistake which is found to be clerical in nature should be allowed to be rectified by exercising inherent power vested in it for subserving the cause of justice. The principle behind the provision is that no party should suffer due to bona fide mistake. However, in the present case the petitioners not only tried to correct the arithmetical error, rather sought to add more facts as discussed hereinabove which cannot be allowed at a highly belated stage.

17. I have also gone through the judgment rendered by the Hon'ble Supreme Court in the case of Ramchandra Sakharam Mahajan (supra) wherein the plaintiff had filed an application for amendment of the plaint trying to pinpoint the disputed property with better particulars. The trial court had rejected the said application. The appeal filed by the plaintiff was also dismissed. The Hon'ble Apex Court in para 17 has held as follows:-

"17. We find that the trial court and the appellate court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting Defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the court to pinpointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We,

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therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial court within three months from this date as per the practice followed in the trial court. Obviously Defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment."

18. In the aforesaid case, the Hon'ble Supreme Court was of the view that the amendment as sought by the plaintiff would enable the trial court to pinpointedly consider the real dispute between the parties and to render a decision more satisfactorily.

19. In the present case, the amendment petition was filed at the appellate stage, that too, after hearing of the appellants and the respondent-State was concluded. The fact of the present case is completely different from the case cited on behalf of the petitioners who have also failed to show that the proposed amendment was necessary to pronounce the judgment in appeal.

20. In view of the aforesaid discussion, I do not find any infirmity in the order dated 07.06.2021 passed by the Additional District Judge-VIII, Dhanbad in Civil Appeal No. 51 of 2019 so as to interfere with the same. The present CMP is, accordingly, dismissed. The cost imposed upon the petitioners by the learned court below is however waived. It is made clear that this order is confined to the issue of filing of the aforesaid three petitions by the petitioners at the appellate stage and the same will not affect the respective cases of the parties which will be adjudicated by the appellate court on the basis of the materials available on record.

(Rajesh Shankar, J.) Ritesh/AFR