Patna High Court
Most. Bimla Devi And Ors vs Most. Laxmi Devi And Ors on 12 January, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.70 of 2017
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1. Most. Bimla Devi Wife of late Ramanand Singh.
2. Santanu Kumar @ Ram Archa.
3. Manoranjan Kumar @ Ramayanjee, Both are sons of Late Ramanand Singh,
all are resident of Village Meghaul, Pargana Bhusari, P.S. and Anchal
Khodawanpur, Sub-Division Manjhaul, District- Begusarai.
... ... Petitioner/s
Versus
1. Most. Laxmi Devi Wife of Late Parmanand Singh.
2. Arunjay Kumar Singh @ Santosh Kumar.
3. Mantosh Kumar, Both are Sons of Late Parmanand Singh, all are resident of
village Meghaul, P.O. Meghaul, Pargana Bhusari, P.S. and Anchal
Khodawanpur, S.D. Manjhaul, District Begusarai- at Present Village Cheriya
Bariarpur, Near Thana, S.D. Manjhaul District Begusarai.
4. Ram Kishore Yadav, Son of Tanuk Yadav, resident of Village Meghaul P.S.
and Anchal Khodawanpur, S.D. Manjhaul, District- Begusarai.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Gouranga Chatterjee, Advocate
Mr. Sahil Kumar, Advocate
Mr. Pulkit Rajan, Advoate
Mr. Anirvan Choudhauri, Advocate
Mr. Ujjwal Raj, Advocate
For Respondent No.4 : Mr. H.P. Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 12-01-2024
Heard learned counsel for the petitioners and learned
counsel for respondent no.4.
2. The petitioners have challenged the order dated 9 th
of November, 2016, passed by learned Additional District
Judge-II, Begusarai in Title Appeal No. 01 of 2010, whereby
and whereunder learned Court has dismissed an application,
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filed on behalf of the petitioners under Order XLI Rule 27 of the
Code of Civil Procedure (hereinafter referred to as 'CPC').
3. The case of the parties, as emerges from the record,
is that the petitioners were plaintiffs in the Court of learned
Munsiff 1st, Begusarai and they filed Title Suit No. 26 of 2004
for declaration that the plaintiffs and the husband of defendant
1st party orally partitioned the lands which were allotted to them
jointly in Title Suit No. 32 of 1965 by learned Sub Judge,
Begusarai in August 1980 and both the parties came in separate
possession of their shares, respectively. The husband of
defendant no.1/ respondent no.1 died in 1991. The plaintiff no.1
and husband of defendant no.1 were full brothers and plaintiff
nos. 2 and 3 are sons of plaintiff no.1, whereas defendant nos. 2
and 3 are sons of defendant no.1. Earlier a partition suit bearing
No. 32 of 1965 was filed and both the brothers came in
possession of their shares jointly. Thereafter, an oral partition
took place between plaintiff no.1 and his brother, the late
husband of defendant no.1, in August, 1980 and thereafter both
the brothers separated in mess and business and they had no
concern with each other. After death of the brother of plaintiff
no.1, some dispute arose with respect to cultivation of land.
Therefore, a memorandum, based on the earlier oral partition,
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was prepared and parties put their signatures on the said
document, allotting properties of Schedule III of the plaint in the
share of the plaintiffs and properties of Schedule IV to the
defendants. After oral partition of August, 1980, the husband of
defendant no.1 had sold some land from his share of the
property to the plaintiff and the defendants were threatening to
interfere with the land belonging to the plaintiffs. Further,
during pendency of the suit, the defendants sold two kathas of
land appertaining to Plot No. 1126, Khata No. 110, Tauzi No.
1091 and Thana No. 29 in favour of respondent no.4, which
belonged to the plaintiff who was in possession. Therefore, an
amendment was sought to challenge the sale deed which was
allowed vide order dated 16th of February, 2006. Schedule-V of
the plaint was added to show the land sold by the defendants in
favour of respondent no.4. The suit before learned Munsif
proceeded ex parte against defendant nos. 1 to 3. Defendant
no.4 appeared in the Court, but did not file his written statement
and hence, the case proceeded against him under Order VIII
Rule 10 of the CPC. After considering the evidence, learned
Trial Court dismissed the suit of the plaintiffs/petitioners vide
judgment dated 30th of October, 2009, which was challenged by
the plaintiffs in Title Appeal No. 01 of 2010 in the Court of
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learned District Judge, Begusarai. During pendency of the
appeal, the plaintiffs/appellants/petitioners filed an application
dated 18th of June, 2016 in the Court of learned Additional
District Judge-II, Begusarai to call for the original records of
Partition Suit No. 32 of 1965 from the Civil Court, Begusarai.
However, the learned Appellate Court directed the appellants to
file the certified copy of the Partition Suit No. 32 of 1965 and
thereafter, the appellants applied for the certified copy, which
was provided to the appellants on 10 th of August, 2016. In the
meantime, the appeal was heard and was fixed for judgment on
17th of August, 2016. On 17th of August, 2016, the appellants
filed the certified copy of the Partition Suit No. 32 of 1965 with
an application to accept the documents giving reasons for not
filing the same earlier. The application of the petitioners was
objected to by the respondent no.4. Learned Additional District
Judge-II, Begusarai heard the application under Order XLI Rule
27 CPC and rejected the same on the ground that the appellant
was having knowledge about existence of the said documents
and there has been no cogent and valid proof that proper steps
were taken for obtaining the documents and therefore there was
no satisfactory and plausible as well as genuine grounds to show
that due diligence has been taken by the appellants. The learned
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Appellate Court went on to dismiss the application of the
plaintiffs/appellants/petitioners vide its order dated 9th of
November, 2016, which is under challenge before this Court.
4. Learned counsel appearing on behalf of the
petitioners submits that the impugned order is illegal, arbitrary
and bad in law. The learned 1st Appellate Court has not
appreciated the scope and ambit of Order XLI Rule 27 CPC.
Learned counsel further submits that the plaintiff did not
produce the document at the first instance since there was no
denial of the partition in the year 1965 vide Title Suit No. 32 of
1965 and no issue was framed on this aspect. So there was no
occasion for the plaintiffs to bring the documents on record
before learned Trial Court. However, the learned Trial Court
dismissed the suit of the plaintiffs referring to the contention of
the plaintiffs about existence of such documents, which it ought
not to have done. Learned Trial Court passed its judgment for
not bringing on record the said document by the plaintiffs and
for this reason, it became necessary for the plaintiffs to bring the
said documents on record as additional evidence before the
learned 1st Appellate Court.
5. Learned counsel further submits that the
plaintiffs/appellants prayed before the learned 1 st Appellate
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Court to call for the record of Title Suit No. 32 of 1965, but the
prayer was declined with direction to the plaintiffs/appellants to
get the certified copy of the said documents. Since it was an old
record, it took time and thereafter when the certified copy of the
documents was furnished to the plaintiffs, they filed it on
record. Learned counsel further submits that the documents are
necessary to decide the real issue in controversy between the
parties, since the basis of title in respect of land sought to be
partitioned, is the order passed by learned Sub Judge in Partition
Suit No. 32 of 1965 and it has not been appreciated by learned
1st Appellate Court. Hence, the impugned order be set aside and
the application of the petitioners be allowed.
6. Learned counsel appearing on behalf of respondent
no.4 vehemently opposed the submissions made on behalf of the
petitioners submitting that a document can be produced as an
additional evidence before the learned Appellate Court under
Order XLI Rule 27 of the CPC only under two conditions that
the Court from whose decree the appeal is preferred has refused
to admit evidence which ought to have been admitted and the
party seeking to produce additional evidence, establishes due
diligence that he could not have produced the documents despite
making efforts. In this case, both the ingredients are missing.
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The petitioners did not make any prayer before learned Trial
Court for bringing the documents on record. At the same time,
they were having all the knowledge since beginning and despite
this knowledge, they failed to bring the documents on record
before learned Trial Court. Hence, the petitioners have no case
before this Court. Even the learned Appellate Court has held
that the appellants had very much knowledge of the existence of
the said document and there is no any cogent and valid reason
that any prompt attempt was made for obtaining the same and
there was no satisfactory and plausible as well as genuine
grounds to show that due diligence has been made by the
appellants to procure the said document. In the circumstances,
bringing the documents on record cannot be allowed and
learned Appellate Court has rightly rejected the petition filed
under Order XLI, Rule 27 of the CPC.
7. Perused the records.
8. Despite service of notice, respondent nos. 1 to 3
chose not to appear in this case. However, respondent no.4
appeared through learned counsel who has already been heard.
9. Having regard to the submissions made
hereinbefore, the short point for consideration is whether the
certified copy of documents related to Partition Suit no. 32 of
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1965 could be brought on record at the appellate stage as
evidence under Order XLI Rule 27 of the CPC or not? From the
facts of the case as enumerated before this Court, what
transpires is that the matter of bringing the said document on
record before the learned Trial Court did not arise, since the
issue was not in dispute and the fact of partition of 1965 was not
under challenge. So on this point, plaintiffs have a case.
10. Order XLI Rule 27 of the CPC provides as
under :-
"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."
11. From the plain reading of this provision, it is
apparent that the additional evidence could be allowed if the
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Appellate Court requires any document to be produced to enable
it to pronounce judgment or for any other substantial cause. The
Hon'ble Supreme Court in the case of Sanjay Kumar Singh
Vs. The State of Jharkhand, reported in (2022) 7 SCC 247 has
held that where the documents are necessary for determination
of mere controversy between the parties, the same would be
allowed to bring on record as additional evidence subject to all
just exceptions. The issue of delay or due diligence can always
be subservient to the cause of substantial justice. It would be
relevant to quote paragraphs 7 to 11, which read as under :
"7. 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 27CPC 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
Patna High Court C.Misc. No.70 of 2017 dt.12-01-2024
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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 27CPC
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
pronounce judgment or for any other substantial
cause of like nature.
8. As observed and held by this Court
in A. Andisamy Chettiar v. A. Subburaj Chettiar
[A. Andisamy Chettiar v. A. Subburaj Chettiar,
(2015) 17 SCC 713 : (2017) 5 SCC (Civ) 514] ,
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 law laid down by this
Court in the aforesaid decision to the facts of the
case on hand, we are of the opinion that while
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considering the application for additional
evidence, the High Court has not at all adverted
to the aforesaid relevant consideration i.e.
whether the additional evidence sought to be
adduced would have a direct bearing on
pronouncing the judgment or for any other
substantial cause. As observed hereinabove,
except sale deed 29-12-1987, which as such was
rejected, there was no other material available
on record to arrive at a fair market value of the
acquired land. Therefore, in the facts and
circumstances of the case, the High Court ought
to have allowed the application for additional
evidence. However, at the same time, even after
permitting to adduce the additional evidence, the
applicant has to prove the existence, authenticity
and genuineness of the documents including
contents thereof, in accordance with law and for
the aforesaid purpose, the matter is to be
remanded to the Reference Court.
10. In view of the above discussion and
for the reasons stated above, the present appeal
is partly allowed. Order passed by the High
Court rejecting IA No. 1384 of 2019 for
adducing additional evidence to bring on record
the documents mentioned in the said application
is hereby quashed and set aside. IA No. 1384 of
2019 filed before the High Court for adducing
additional evidence under Order 41 Rule 27CPC
is hereby allowed. The appellant herein is
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permitted to bring on record the documents
mentioned in IA No. 1384 of 2019 as additional
evidence.
11. However, as observed and held by
this Court in Uttaradi Mutt v. Raghavendra
Swamy Mutt [Uttaradi Mutt v. Raghavendra
Swamy Mutt, (2018) 10 SCC 484 : (2019) 1 SCC
(Civ) 29] , allowing the application filed under
Order 41 Rule 27CPC does not lead to the result
that the additional documents/additional
evidence can be straightway exhibited rather, the
applicant would have to not only prove the
existence, authenticity and genuineness of the
said documents but also the contents thereof, in
accordance with law. It is observed that thus the
documents which are permitted to be brought on
record as additional evidence have to be proved
by the appellant before the Reference Court, in
accordance with law and only thereafter and
after proving the existence, authenticity and
genuineness of the said documents including
contents thereof, the same can be taken into
consideration by the Reference Court".
12. Further, it appears that the documents may help
the learned first appellate court to arrive at just and proper
finding in order to further the substantial cause of justice. The
Hon'ble Supreme Court in the case of Billa Jagan Mohan
Reddy vs. Billa Sanjeeva Reddy, reported in (1994) 4 SCC 659
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has observed that it is settled law that, if the documents are
found to be relevant to decide the real issue in the controversy,
and when the court felt that the interest of justice requires, that
the documents may be received, exercising the power under
Order 41 Rule 27 CPC the appellate court would receive the
documents and consider their effect thereof.
13. In the present case, as has already been observed
that documents were supposedly not required to be brought on
record at the stage of trial and further prayer has been made to
the learned Appellate Court to call for the documents from the
court concerned, which was refused, the petitioners/appellants
could not be faulted for bringing the documents so late on
record.
14. In view of the aforesaid facts and circumstances
and discussions made here-in-before, I am of the opinion that
the learned first appellate court failed to exercise the jurisdiction
vested in it and, for this reason, I do not think the impugned
order dated 09.11.2016 passed in Title Appeal No.01/2010,
arising out of Title Suit No.26 of 2004, could be sustained and,
hence, the same is set aside. Consequently, the application dated
17.08.2016
filed on behalf of the appellants/petitioners under
Order 41 Rule 27 CPC is allowed. The petitioners are permitted
Patna High Court C.Misc. No.70 of 2017 dt.12-01-2024
to bring on record the documents mentioned in the petition
dated 17.08.2016 as additional evidence.
At this point of time, it would be relevant to point out
that allowing the petition filed by the petitioners/appellants
under Order 41 Rule 27 CPC does not mean the additional
documents/additional evidence can be straightway exhibited
rather, the petitioners/appellants would have to prove the
existence, authenticity and genuineness of the said documents
and also the contents thereof, as may be required by law, as has
been observed and held by the Hon'ble Supreme Court in the
case of Uttaradi Mutt v. Raghavendra Swamy Mutt, reported
in (2018) 10 SCC 484.
15. Accordingly, the instant petition stands allowed.
16. Since the appeal is pending before the learned first
appellate court since the year 2010, the learned first appellate
court is directed to dispose of the appeal pending before it
within three months from the date of receipt/production of a
copy of this judgment.
17. However, it is made clear that this Court has not
expressed anything on merits of the case of the respective
parties as well as documents permitted to be brought on record
as exhibits and it would be for the learned appellate court to deal
Patna High Court C.Misc. No.70 of 2017 dt.12-01-2024
with the same in accordance with law and on its own merits, but
after giving ample opportunity to the respondents/defendants to
rebut/controvert the documents sought to be brought on record,
if they so desire.
(Arun Kumar Jha, J)
Amrendra/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 16.01.2024
Transmission Date N/A
