Jharkhand High Court
Mosomat Balandina Hansda Wife Of ... vs Mosomat Rodenmila @ Rodensila ... on 1 April, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No. 358 of 2015
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Mosomat Balandina Hansda wife of Late Samaun Hansda, resident
of village Gudaidhab, P.O. and P.S. Taljhari, District Sahibganj.
... ... Appellant
-versus-
1. Mosomat Rodenmila @ Rodensila Murmu, wife of Late Samaun
Hansda, resident of village Gudaidhab, P.O. and P.S. Taljhari,
District Sahibganj.
2. Namiel Hansda son of Late Samaun Hansda, resident of village
Gudaidhab, P.O. and P.S. Taljhari, District Sahibganj.
... ... Respondents
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CORAM : HON'BLE MR. JUSTICE ANANDA SEN
THROUGH VIDEO CONFERENCING
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For the Appellant: Mr. Sanjay Kumar Tiwari, Advocate
Mr. Gautam Kumar Singh, Advocate
For the Respondents: Mr. Ranjan Kumar Singh, Advocate
----
26/01.04.2022 I.A. No.6643 of 2021
This interlocutory application has been filed by the appellant
under Order XLI Rule 27 of the Code of Civil Procedure for production of
additional evidence. The additional evidence, which is sought to be
brought on record are Family Declarations of different years issued by
Samaun Hansda, showing Balandina Hansda @ Balandini Hembrom as
his wife.
2. Counsel appearing on behalf of the appellant submits that
these are very important documents, which needs to be exhibited. As
per him, these documents will have a great impact on the final decision
of this appeal. He submits that these documents will substantially prove
that deceased Samaun Hansda, who was an employee of Railways, had
declared in his service record that this appellant to be his wife. He
submits that if these documents are considered in evidence, this appeal
will tilt in favour of the appellant as the Principal District Judge,
Sahibganj has held that this appellant is not the wife of the deceased.
He further submits that the instant appeal arises out of a judgment dated
23.06.2015 passed by the Principal District Judge, Sahibganj in
Succession Certificate Case No.06 of 2008 / Title Suit No.01 of 2015. It
is the contention of the counsel for the appellant that the Court below
has held that son of the deceased, born out of this appellant is entitled
for share in the death-cum-retiral benefits of Samaun Hansda, but, since
this appellant is not the wife, she is not entitled to receive any share. As
per him, when these documents suggest that the deceased had
declared the appellant to be his wife, she is also entitled to the benefits,
thus, these documents are substantial piece of evidence. It is contended
that service record of the deceased employee were not in the
knowledge of the appellant and only recently, appellant could come to
know about these documents, so she could not produce the same
before the Trial Court, thus, for the interest of justice, it is prayed that
this application be allowed.
3. Respondents objected the claim of the appellant and
challenged the same submitting that the Court below has held in the
Succession Certificate Case No.6 of 2008 that this appellant is not the
legally wedded wife, rather the respondent Mosomat Rodenmila @
Rodensila Murmu is the legally wedded wife of the deceased. He
submits that issue No.3 was framed to the effect that whether the family
declaration as filed by the deceased in the Railways Department on
18.02.1997 is genuine or not. After considering the said document, the
Court below has answered the issue against this appellant, thus, there is
no question to allow this application. Counsel appearing on behalf of the
claimants submitted that the documents, which is sought to be brought
on record, have got no relevance in the instant appeal. His submission
is that in normal course, additional evidence should not be accepted,
but, only if a case falls within the four corners of the exceptions then
only a document can be exhibited. As per him, the case of the appellant
does not fall within the four corners of the exceptions, thus, this
application should be dismissed.
4. After hearing learned counsel for the parties, I find that the
appellant seeks to introduce the family declarations given by the
deceased before his employer. The appellant claims to be the wife of
the deceased. To prove that substantially, she wants to bring the
aforesaid documents on record by way of additional evidence, where,
according to her, the deceased had declared her to be his wife. This
appeal arises out of a judgment dated 23.06.2015 passed by the
Principal District Judge, Sahibganj in Succession Certificate Case No.06
of 2008 / Title Suit No.01 of 2015, wherein parties are claiming share in
the death-cum-retiral benefits of the deceased. Learned Principal District
Judge granted share to the petitioner-respondent, namely, Mosomat
Rodenmila @ Rodensila Murmu and Namiel Hansda, holding that she is
the wife of the deceased and Namiel Hansda is the son of the deceased
through Mosomat Rodenmila @ Rodensila Murmu. The Principal District
Judge has also granted share to both sons of this appellant holding that
they were born through the deceased. Only no share was granted to the
appellant, holding that she was not the legitimate wife. Appellant, thus,
wants to bring on record the aforesaid documents. Thus, this application
under Order XLI Rule 27 of the Code of Civil Procedure has been filed.
5. From perusal of Order XLI Rule 27 (1) of the Code of Civil
Procedure, I find that in normal circumstances, parties to an appeal are
not entitled to produce additional evidence, be it oral or documentary.
There are exceptions, which are carved out, which are mentioned in
Order XLI Rule 27 (1) (a), (aa) and (b).
Order XLI Rule 27(2) provides that if an evidence is allowed
to be adduced at the appellate stage, the Appellate Court shall record
reasons for its admission. For better appreciation, the provisions of
Order XLI Rule 27 are quoted hereinbelow: -
27. Production of additional evidence in Appellate Court - (1)
The parties to an appeal shall not be entitled to produce
additional evidence, whether oral 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
6. As held earlier, exceptions to the Rule have been provided
in Order XLI Rule 27 (1) (a), (aa) and (b). Three conditions laid down for
exhibiting additional evidence at the appellate stage are:-
(i) The Trial Court has refused to admit the evidence,
which ought to have been admitted;
(ii) Party seeking to adduce the evidence, establishes
that the said evidence was not within the knowledge
after exercise of due diligence, thus, he could not
produce the same before the Trial Court;
(iii) If the Appellate Court requires any document to be
produced or any witness to be examined to enable it
to pronounce the judgment or for any other
substantial cause.
7. From perusal of all these three conditions, which have been
enumerated in Order XLI Rule 27 (1) - (a), (aa) and (b), I find that after
each of the exception, the word 'OR' has been used, which means that
existence of any one of the conditions is sufficient to allow a petition
under Order XLI Rule 27 of the Code of Civil Procedure. It is not
necessary that all the three conditions should coexist.
8. In a very recent decision, in the case of Sanjay Kumar
Singh versus State of Jharkhand reported in 2022 SCC OnLine SC
292 the Hon'ble Supreme Court has held that the parties, as a matter of
right, are not entitled to adduce additional evidence by invoking Order
XLI Rule 27 of the Code of Civil Procedure. The Appellate Court may
permit additional evidence to be adduced, if the conditions laid down in
the Rule are found to exist. The Hon'ble Supreme Court further went on
to hold that where the additional evidence sought to be adduced
removes the cloud over the case and the evidence is important and has
direct bearing on the issues in the suit, in that case additional evidence
may be permitted to be recorded. The Hon'ble Supreme Court further
held that one of the circumstances under which the production of
additional evidence is to be recorded is whether or not the Appellate
Court requires the same for pronouncement of judgment. Hon'ble
Supreme Court, in the aforesaid judgment, while relying upon A.
Andisamy Chettiar versus A. Subburaj Chettiar, reported in (2015)
17 SCC 713, has held that admissibility of additional evidence does not
depend on the relevancy of the issue on hand or on the facts. The main
consideration would be whether the Appellate Court requires the
evidence sought to be adduced to enable it to pronounce the judgment.
As per the Hon'ble Supreme Court, the true test is whether the Appellate
Court is able to pronounce the judgment on the materials without taking
into consideration the additional evidence sought to be adduced. It is
necessary to quote paragraph 4 of the said judgment :-
4. It is true that 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. It may also be true that
the appellate court may permit additional evidence if
the conditions laid down in this Rule are found to exist
and the parties are not entitled, as of right, to the
admission of such evidence. However, at the same
time, 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.
Even one of the circumstances in which the production
of additional evidence under Order 41 Rule 27 CPC by
the appellate court is to be considered is, whether or
not the appellate court requires the additional evidence
so as to enable it to pronouncement judgment or for
any other substantial cause of like nature. As observed
and held by this Court in the case of A. Andisamy
Chettiar v. A. Subburaj Chettiar, reported in (2015) 17
SCC 713, 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 sought to be adduced to enable it
to pronounce judgment or for any other substantial
cause. It is 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.
9. Applying the aforesaid law, I find that the appellant wants to
bring on record the Family Declarations of different years issued by
Samaun Hansda, showing Balandina Hansda @ Balandini Hembrom as
his wife. Appellant takes two grounds in support of her claim:-
(i) That these documents were not within her
knowledge and it was very difficult for her to obtain
the same as the same was in custody of the
employer of the deceased, i.e., Indian Railways and
these documents are necessary to pronounce the
judgment;
(ii) It is the contention of the appellant that these
documents will prove that she is the wife of the
deceased and the deceased declared to be his wife,
that being so, she is entitled to get share in the
property.
10. Admittedly, from the photocopies of the documents, which
are sought to be brought on record as additional evidence, it is clear that
the same are Family Declarations submitted by the deceased before his
employer and these documents are in the custody of the employer, i.e.,
Indian Railways. Contention of the appellant cannot be disbelieved that
it was not possible for her to bring these documents as she did not knew
about the existence of the said documents. Further, existence of the
documents and admitting them in evidence may help the Court to pass a
better judgment in this appeal. Counsel for the respondents submitted
that this document is of no relevance. Whether these documents are of
relevance or not, will be seen at the time of final hearing and not at the
stage when the Court is considering whether to admit the documents or
not. As per the judgment of the Hon'ble Supreme Court in the case of
Sanjay Kumar Singh (supra), admissibility of Family Declarations,
which are sought to be brought on record as additional evidence, does
not depend upon the relevancy to the issue on hand. If I apply the true
test, I find that these Family Declarations are important documents for
considering the entire appeal as the same may have some impact on
the final judgment of this appeal. Thus, by invoking Order XLI Rule 27
(1) (b) of the Code of Civil Procedure, these Family Declarations, are
admitted in evidence.
11. The interlocutory application is, thus, allowed. These Family
Declarations, which are sought to be brought on record and annexed
with the interlocutory application are photocopies of the original
documents. These documents cannot be straightaway exhibited.
Appellants will have to prove the existence, authenticity and
genuineness of the said documents. She will also have to prove the
contents in accordance with law. Thus, these documents have to be
proved by the appellant in terms of the Evidence Act before the Principal
District Judge, Sahibganj and only after proving the existence,
authenticity and genuineness including the contents of the documents,
the same can be considered.
12. For the aforesaid purpose, this matter is remanded to the
Principal District Judge, Sahibganj. After the marking the documents as
per law, giving opportunity to the parties to lead evidence on the
aforesaid documents, the record along with marked documents be sent
to this Court. Since both the parties are present before this Court, I
direct them to appear before the Principal District Judge, Sahibganj for
the aforesaid purpose. The Principal District Judge, Sahibganj is
directed to complete the entire procedure within four months and sent
the newly marked documents alongwith the Lower Court Records to this
Court.
13. Office is directed to remit the records of Succession
Certificate Case No.06 of 2008 / Title Suit No.01 of 2015 and also I.A.
No. 6643 of 2021 filed before this Court to the Principal District Judge,
Sahibganj alongwith a copy of this order.
14. I.A. No.6643 of 2021, accordingly, stands allowed.
(Ananda Sen, J.)
Kumar/Cp-02
