Jharkhand High Court
Manorma Devi vs The State Of Jharkhand on 24 September, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No.160 of 2021
-----
Manorma Devi .......... Petitioner.
-Versus-
1. The State of Jharkhand, through the Chief Secretary, Government
of Jharkhand, Project Building, Dhurwa, Ranchi.
2. The District Collector, Chatra.
3. Divisional Forest Officer, South Forest Division, Chatra.
.......... Respondents.
-----
CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
-----
For the Petitioner : Mr. Binod Singh, Advocate
For the State : Mr. Amit Kumar S.C.(Mines)-II
-----
Order No.04 Date: 24.09.2021
1. This case is taken up through video conferencing.
2. The present civil miscellaneous petition has been filed for quashing the
order dated 01.04.2021 passed by the District Judge-VI, Chatra in
Misc. Civil Application No.38 of 2021 filed by the petitioner under Order
XLI rule 27 of the Code of Civil Procedure, whereby the learned court
below has rejected the said application filed in Civil Appeal No.10 of
2020 for allowing her to adduce additional evidence and to mark some
of the documents as exhibits, which were already on record before the
court below, but could not be marked as exhibits due to inadvertence
and by oversight.
3. The factual background of the case, as stated in the C.M.P., is that the
land situated at village-Nagwan, Pargana- Ahuri, P.S Chatra, Thana
No.182, District-Hazaribagh (now Chatra) under C.S Khata No. 1, Plot
No. 1144, measuring an area of 22.80 acres and plot No. 1146,
measuring an area of 37 acres was recorded as Gairmazurwa Khas
land of ex. Landlord-Kunwar Rameshwar Narayan Singh. Out of the
said land, 1 acre land appertaining to Plot no.1144 and 4 acres of land
appertaining to plot no.1146 was settled to one Vindhyavasini Devi on
16.11.1941 by the ex. landlord, who came in possession of the same
and paid rent to the landlord till vesting of Zamindari. After vesting of
Zamindari, jamabandi was opened in her name and she also paid rent
to the Government for the year 1953-54 and 1954-55. The petitioner
purchased 1 acre of land under Touzi No. 28, Khata No. 1, Plot no.
1146 from the settlee by virtue of a registered sale deed dated
21.02.1986 and came in possession of the same. However, the Forest
Department, Government of Jharkhand registered a case bearing
No.105 of 2015 on 23.02.2015, alleging that the petitioner was making
construction over the forest land and to that effect U.C. case No.155
of 2014 was also registered against the petitioner. The petitioner filed
Original Suit No.92 of 2017 for declaration of her right, title, interest
and possession upon the suit property and to restrain the defendants
from interfering with her title and possession over the suit land.
However, the said suit was dismissed by the trial court vide order dated
31.01.2020. Aggrieved by the said order, the petitioner preferred
appeal being Civil Appeal No.10 of 2020. During the pendency of the
said appeal, the petitioner filed Misc. Civil Application No.38 of 2021
dated 17.03.2021 under Order XLI rule 27 CPC to mark some
documents as exhibit which were already on record. The petitioner
also made another prayer for adducing additional evidence claiming
that those documents could not be obtained by the petitioner during
trial in spite of her due diligence. However, vide impugned order dated
01.04.2021, the court below rejected the said application filed by the
petitioner.
4. The learned counsel for the petitioner submits that a similarly situated
person, namely, Mohini Devi had also filed T.S. No. 3 of 2001 which
was allowed in her favour vide judgment dated 29.02.2012 and the
appeal filed by the respondents being T.A. No. 8 of 2012 was also
dismissed vide judgment dated 13.06.2018. It is further submitted that
the petitioner is an old lady and when the trial was going on, she met
with an accident and was bedridden. After recovery, she traced out
certain material documents which would enable the court below to
pronounce effective judgment and as such the court below should
have allowed the application filed by the petitioner under Order XLI
rule 27 C.P.C. It is also submitted that the court below failed to
appreciate that the documents sought to be brought on record as
additional evidence were kept on the record of T.A No.8 of 2012 and
the petitioner even after due diligence could not trace the same during
trial. As soon as she came to know the said fact, she filed Misc. Civil
Application no.38 of 2021 under Order XLI rule 27 C.P.C. The said
application filed by her should not have been rejected in a routine
manner. Moreover, the opposite parties will have every right to rebut
the said documents and as such no prejudice will be caused to them
in allowing the petitioner to adduce additional evidence at the
appellate stage. It is further submitted that the court below has failed
to appreciate that the documents sought to be adduced/exhibited are
relevant for effective determination of the issue involved in the present
case.
5. Heard the learned counsel for the parties and perused the materials
available on record. The petitioner filed an application under Order XLI
rule 27 CPC before the lower appellate court, seeking to mark certain
documents as exhibits, which were already on record, claiming that
inadvertently the same could not be marked as exhibit during the trial.
The petitioner also prayed to adduce additional evidence at the
appellate stage claiming that during trial she was bedridden and as
such could not obtain those documents at that time. The court below,
however, rejected the application of the petitioner by holding that the
provisions of Section 107 C.P.C. and Order XLI rule 27 CPC are not
intended to allow an unsuccessful party to patch up the weak part of
the case and to fill up the omission in the court of appeal.
6. To appreciate the above contentions, it would be relevant to refer the
judgment of the Hon'ble Supreme Court rendered in the case of
Mahavir Singh & Others Vs. Naresh Chandra & Another,
reported in (2001) 1 SCC 309, relied upon by the learned counsel
for the petitioner, the relevant paragraph of which is quoted as under:
"5. Before we proceed further we would like to refer to the scope of an
application under Order 41 Rule 27 CPC. Section 107 CPC enables an
appellate court to take additional evidence or to require such other
evidence to be taken subject to such conditions and limitations as are
prescribed under Order 41 Rule 27 CPC. The principle to be observed
ordinarily is that the appellate court should not travel outside the
record of the lower court and cannot take evidence on appeal.
However, Section 107(d) CPC is an exception to the general rule, and
additional evidence can be taken only when the conditions and
limitations laid down in the said rule are found to exist. The court is
not bound under the circumstances mentioned under the rule to permit
additional evidence and the parties are not entitled, as of right, to the
admission of such evidence and the matter is entirely in the discretion
of the court, which is, of course, to be exercised judiciously and
sparingly. The scope of Order 41 Rule 27 CPC was examined by the
Privy Council in Kessowji Issur v. Great Indian Peninsula Rly. Co. [ILR
(1907) 31 Bom 381 : 9 Bom LR 671 : (1906-07) 34 IA 115 (followed in
AIR 1931 PC 143)] in which it was laid down clearly that this rule alone
can be looked to for taking additional evidence and that the court has
no jurisdiction to admit such evidence in cases where this rule does
not apply. Order 41 Rule 27 CPC envisages certain circumstances when
additional evidence can be adduced:
(i) the court from whose decree the appeal is preferred has refused to
admit evidence which ought to have been admitted, or
(ii) 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
(iii) 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.
In the present case, it is not the case of either party that the first
situation is attracted. So far as the second circumstance noticed above
is concerned, question of exercise of due diligence would not arise
because the scientific equipment concerned from which examination
is sought to be made itself was not in existence at the time of trial and
so that clause is also not attracted. In the third circumstance, the
appellate court may require any document to be produced or any
witness to be examined to enable it to pronounce the judgment, or for
any other substantial cause. The expression "to enable it to pronounce
judgment" has been the subject of several decisions including Syed
Abdul Khader v. Rami Reddy [(1979) 2 SCC 601] wherein it was held
that when the appellate court finds itself unable to pronounce
judgment owing to a lacuna or defect in the evidence as it stands, it
may admit additional evidence. The ability to pronounce a judgment is
to be understood as the ability to pronounce a judgment satisfactory
to the mind of the court delivering it. It is only a lacuna in the evidence
that will empower the court to admit additional evidence
(see: Municipal Corpn. of Greater Bombay v. Lala Pancham [AIR 1965
SC 1008:(1965) 1 SCR 542] ). But a mere difficulty in coming to a
decision is not sufficient for admission of evidence under this rule. 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. G.I.P. Rly. [ILR (1907)
31 Bom381 : 9 Bom LR 671 : (1906-07) 34 IA 115 (followed in AIR
1931 PC 143)] 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 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. In this
regard, we may notice the decision of this Court in Gurdev
Singh v. Mehnga Ram [(1997) 6 SCC 507] in which the scope of
exercise of power under Section 115 CPC on an order passed in an
application filed under Order 41 Rule 27 CPC was considered. When
this decision was cited before the High Court, the same was brushed
aside by stating that the principle stated therein is not applicable to
the facts of this case. We do not think so. The High Court ought not to
have interfered with such an order."
7. 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:-
"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 for the admission of the
additional evidence, is not enough compliance 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 the 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 [(2004) 5 SCC 568] , State of
Uttaranchal v. Sunil Kumar Singh Negi [(2008) 11 SCC 205] , Victoria
Memorial Hall v. Howrah Ganatantrik Nagrik Samity [(2010) 3 SCC
732] and SantLal Gupta v. Modern Coop. Group Housing Society
Ltd. [(2010) 13 SCC 336] )."
8. Further, in the case of K.R. Mohan Reddy Vs. Net Work Inc.
Represented through MD, reported in (2007) 14 SCC 257, the
Hon'ble Supreme Court has held as under:-
"17. It is now a trite law that the conditions precedent for application
of clause (aa) of sub-rule (1) of Rule 27 of Order 41 is different from
that of clause (b). In the event the former is to be applied, it would be
for the applicant to show that the ingredients or conditions precedent
mentioned therein are satisfied. On the other hand if clause (b) to sub-
rule (1) of Rule 27 of Order 41 CPC is to be taken recourse to, the
appellate court is bound to consider the entire evidence on record and
come to an independent finding for arriving at a just decision;
adduction of additional evidence as has been prayed by the appellant
was necessary. The fact that the High Court failed to do so, in our
opinion, amounts to misdirection in law. Furthermore, if the High Court
is correct in its view that the respondent-plaintiff had proceeded on
the basis that the suit is entirely based on a cheque, wherefor, it was
not necessary for it to file the books of accounts before the trial court,
finding contrary thereto could not have been arrived at that the same
was in fact required to be proved so as to enable the appellate court to
arrive at a just conclusion.
18. The Supreme Court in State of Gujarat v. Mahendra kumar
Parshottambhai Desai [(2006) 9 SCC 772] relying upon Municipal
Corpn. of Greater Bombay v. Lala Pancham [AIR 1965 SC 1008] held
as under : (SCC p. 775, para 10)
"10. ... though the appellate court has the power to allow a
document to be produced and a witness to be examined
under Order 41 Rule 27 CPC, 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 did not entitle the
appellate court to let in fresh evidence at the appellate
stage where even without such evidence it can pronounce
judgment in the case. It does not entitle the appellate court
to let in fresh evidence only for the purposes of
pronouncement of judgment in a particular way."
19. The appellate court should not pass an order so as to patch up the
weakness of the evidence of the unsuccessful party before the trial
court, but it will be different if the court itself requires the evidence to
do justice between the parties. The ability to pronounce judgment is
to be understood as the ability to pronounce judgment satisfactorily to
the mind of the court. But mere difficulty is not sufficient to issue such
direction. While saying so, however, we do not mean that the court at
an appropriate stage would be precluded from considering the
applicability of clause (b)."
9. The ordinary rule is that the appellate court should not travel outside
the record of the lower court and cannot take evidence in appeal.
However, section 107 CPC enables an appellate court to take additional
evidence subject to such conditions and limitations as are prescribed
under Order 41 Rule 27 CPC i.e if the court from whose decree, the
appeal is preferred has refused to admit evidence which ought to have
been admitted, or if the party seeking to produce additional evidence,
establishes that notwithstanding exercise of due diligence, such
evidence was not within his knowledge or could not, even after
exercise of due diligence, be produced by him at the time when the
decree appealed against was passed, or 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
matter relating to taking of evidence at the appellate stage is entirely
in the discretion of the court, which is, however, to be exercised
judiciously and sparingly. Though the appellate court has the power to
allow a document to be produced and a witness to be examined under
Order 41 Rule 27 CPC, the power of the said Court must be limited to
those cases where it finds necessary to obtain such evidence so as to
pronounce judgment effectively. The said 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 the case.
The appellate court should not pass an order so as to patch up the
weakness of evidence of an unsuccessful party before the trial court.
The position will, however, be different if the court itself requires
additional evidence to effectively adjudicate the dispute between the
parties. The ability to pronounce judgment is to be understood as the
ability to pronounce judgment satisfactorily as per the understanding
of the court but mere difficulty is not sufficient to issue such direction.
Whenever the appellate court admits additional evidence it should
record its reasons for doing so. The omission to record the reasons
must, therefore, be treated as a serious defect. Nevertheless, this
provision is only directory and not mandatory, if the reception of such
evidence can be justified under the Rule.
10. In the case in hand, the petitioner during trial failed to exhibit certain
documents which were already on record. The trial court while passing
judgment dated 31.01.2020 observed that Hukumnama, Zamindari
receipt, Parcha etc. were not filed in original or called from Title Suit
No.3 of 2001, which was contested by Mohini Devi against the forest
department. Hence, pleadings in this regard also become suspicious,
afterthought and unreliable, which remained uncorroborated by any
cogent piece of documentary evidence. It also appears that the
petitioner, just to patch up the weakness in the evidence, filed a
petition before the appellate court to mark certain documents as
exhibits, which could not be marked due to the latches on the part of
the petitioner. I am of the view that the latches, inadvertence,
negligence cannot be the grounds to allow an unsuccessful party
before the Trial Court to lead evidence at the appellate stage. It is only
intended under the provisions enumerated under Section 107 as
elucidated by Order XLI rule 27 CPC to allow a party to lead evidence
at the appellate stage. Since the documents were already on record,
the petitioner cannot claim that those documents were not within her
knowledge.
11. So far another prayer of the petitioner made before the appellate court
to bring on record some additional documents i.e. certified copy of the
order dated 26.09.2019 passed in Misc. Appeal No. 42 of 2015-16,
certified copy of rent receipt in favour of Vindhyavasini Devi and
certified copy of Hindi translated copy of Hukumnama dated
16.11.1942 issued by the ex. landlord in favour of Vindhyavasini Devi
is concerned, from the nature of the documents it is hard to believe
that the same were not within her knowledge during the trial, it rather
appears that the same could not be filed due to the latches on her
part. Reason assigned by the petitioner for not filing the said
documents during trial that she had met with an accident and was
bedridden was rightly not accepted by the appellate court in absence
of any document being available on record in support of the said claim.
Moreover, it transpires that the petitioner examined herself as a
plaintiff-witness before the trial court and had sufficient opportunity to
produce and prove all possible documents in support of her case,
however, she failed to avail the said opportunity.
12. In view of the aforesaid discussions, I find no infirmity in the order
dated 01.04.2021 passed by the learned District Judge-VI, Chatra in
Civil Miscellaneous No.38 of 2021 filed in Civil Appeal No.10 of 2020.
13. This petition being devoid of merit is, accordingly, dismissed.
(Rajesh Shankar, J.)
Sanjay/AFR
