This writ petition assails the validity of an order dated 05.04.1995, whereby the application moved by the petitioners, who were appellants before the learned appellate court below, under Order 41 Rule 27 of the Code of Civil Procedure for adducing additional evidence has been rejected.
Heard Sri S. A. Jamal, Advocate holding brief of Sri Shafiq Mirza, learned counsel for the petitioners and Sri Mohd. Arif Khan, Senior Advocate, assisted by Sri Mohd. Moinuddin Khan and Sri Mohd. Aslam Khan, Advocates for respondents no. 1 to 3.
The facts which are relevant for the purposes of resolving the dispute engaging attention of this Court in the instant writ petition are that a Suit bearing No. 124 of 1981 was filed before the learned trial court by the respondents wherein the petitioners were the defendants. The suit was filed with the prayer for decree for demolition of the construction raised by the petitioners. Subsequently another suit was filed by the petitioner no.6 against the respondents no.1 to 3 which was registered as Regular Suit No.134 of 1981 wherein the decree for permanent injunction was sought for restraining the defendants i.e. respondents no. 1 to 3 in the instant writ petition from raising any construction on the land in dispute.
Out of the aforesaid two regular suits, Suit No.134 of 1981 was later on dismissed in default on 13.08.1985 whereas the Suit No.124 of 1981 was decreed by the trial court by means of judgment and order dated 28.09.1991.
Being aggrieved against the decree passed in Suit No.124 of 1981, an appeal was preferred by the petitioners before the learned appellate court below. During pendency of appeal, an application was preferred before the learned appellate court below by the petitioners on 24.03.1995 praying therein that certain documents annexed with the application may be taken on record. The said application was moved by the petitioners invoking the provision of Order 41 Rule 27 of the Code of Civil Procedure. The application was, however, rejected by the learned appellate court below by means of order dated 05.04.1995 which is under challenge in the instant writ petition.
The sole contention of the learned counsel appearing for the petitioners is that the impugned order dated 05.04.1995 passed by the learned appellate court below is erroneous for the reason that contrary to the provision of Order 41 Rule 27(1)(b) of the Code of Civil Procedure, no finding has been returned by the learned appellate court below on the issue as to whether the documents which were sought to be filed along with application moved by the petitioners were required by the appellate court to enable it to pronounce the judgment. Sri Jamal, learned counsel for the petitioners citing two judgments reported in [2010 (28) LCD 1345]; Shalimar Chemical Works Ltd. vs. Surendra Oil & Dal Mills (Refineries) and others and [2003 (21)LCD 219]; M/s. Gupta National Radios and Electric House vs. Sagarmal Arora and another, has very emphatically submitted that in absence of finding recorded by the learned appellate court below in terms of the provision of Order 41 Rule 27(1)(b) of the Code of Civil Procedure, the impugned order passed by the learned appellate court below cannot be permitted to be sustained.
Strongly opposing the arguments raised by the learned counsel for the petitioners, Sri Mohd. Arif Khan, learned Senior Advocate has submitted that in the wake of distinct finding by the learned appellate court below that evidence, which was sought to be adduced by means of application moved by the petitioners before the learned appellate court below, had all along been in the knowledge of petitioners since in the year 1981 itself and, as such, at this belated stage in the year 1995 appellants cannot be permitted to adduce the evidence, hence, there is no illegality or irregularity of any kind which can be seen by this Court in the order passed by the learned appellate court below. In his support, he has strongly relied upon the judgment of Apex Court reported in [2001 (44) ALR 737]; N.Kamalam (dead) and another vs. Ayyasamy and another. Sri Mohd. Arif Khan, learned Senior Advocate citing paragraph 17 and 18 of the aforesaid judgment of Hon'ble Apex Court has submitted that since in the instant case also the application to adduce additional evidence was moved after a very long time and since there is a finding by the court below that petitioners were in the knowledge of evidence which they wanted to adduce at the appellate stage since the very beginning, hence the application has rightly been rejected by the court below. He has further drawn attention of this Court to para 18 of the judgment of the Apex Court in the case of N. Kamalam (dead) and another (supra) and has submitted strenuously that at the belated stage no fresh evidence can be led by the petitioners keeping in view the fact that the evidence which they wanted to lead by way of filing application in March, 1995 has all along been available to them and in their knowledge.
Having given thoughtful consideration to the arguments advanced by the learned counsel appearing for the respective parties and also going through the material available on record, it is clear that application moved by the petitioners before the learned appellate court below for adducing additional evidence contained two grounds, namely, (1) the documents which were sought to be furnished before the appellate court contained admission of the respondents, therefore, the said documents would facilitate the appellate court to pronounce the judgment in the matter; and (2) the documents which were sought to be furnished were not in the knowledge of the petitioners.
Admittedly, the application moved by the petitioners contained the aforesaid two grounds which is clear from a perusal of Annexure-1 appended to the writ petition, which is a true copy of the application moved before the learned appellate court below for adducing additional evidence. A bare reading of the said application establishes that a specific plea was taken by the petitioners while moving the application for adducing the additional evidence that since the documents sought to be filed contained admission of the respondents, as such, the evidence was such that it would enable the appellate court to pronounce the judgment.
The other ground, of course, was that the said documents were in the knowledge of the petitioners.
From a bare perusal of the impugned order dated 05.04.1995, it is abundantly clear that though the learned appellate court below has given a finding to the effect that documents which were sought to be filed as additional evidence before the appellate court below have all along been in the knowledge of the petitioners since 1981, however, the court below has not recorded any finding on the other issue raised and the ground taken by the petitioners in their application to the effect that since the evidence being sought to be adduced contains admission on the part of the respondents, as such, this would facilitate the appellate court to arrive at a just decision and to pronounce the judgment accordingly.
So far as the submission made by Sri Mohd. Arif Khan, learned Senior Advocate in respect of broad principles emanating from the provision of Order 41 Rule 27 of the Code of Civil Procedure to the effect that this provision should be applied very sparingly and only in case ingredients given in sub rule 1 of Rule 27 are fulfilled is concerned, there cannot be any quarrel to this legal proposition. However, what needs to be seen is as to whether despite raising a specific plea and taking specific ground that the documents sought to be furnished by moving application under Order 41 Rule 27 of the Code of Civil Procedure before the appellate court were such which would enable the appellate court to arrive at a just decision, the court below ought to have given specific finding on the said issue or not. Further, in case no such finding has been given then as to whether it will vitiate the impugned order dated 05.04.1995.
The provision of Order 41 Rule 27 of the Code of Civil Procedure reads as follows:
"Order 41 Rule 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.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
There is no doubt that the provision of Order 41 Rule 27 of the Code of Civil Procedure should be permitted to be invoked not so very often but only in case application so moved under the said provision fulfills the basic ingredients given in Clauses (a), (aa) & (b) of sub-rule 1 of Rule 27, Order 41. A party making an application under Order 41 Rule 27 can take either all the grounds enumerated in sub-rule (1) of Rule 27 or can take two of the three grounds enumerated therein or it can take only one of the three grounds envisaged in Rule 27(1) of the Code of Civil Procedure. There is also no doubt as to the legal proposition that for exercising the authority to permit a party to an appeal to produce additional evidence, it is the discretion of the appellate court which has to be exercised by it. However, the discretion so vested in the appellate court has to be exercised judiciously.
It is also noteworthy that conditions precedent for application of clause (aa) are different from those of clause (b). In case clause (aa) is to be applied in a particular case, it would be seen by the court concerned that conditions precedent mentioned in clause (aa) are fulfilled. In case a party takes recourse to clause (b) to sub-rule (1) of Rule 27 of Order 41 of the Code of Civil Procedure, then it is for the appellate court to consider the evidence on record and then give a finding as to whether additional evidence which is sought to be adduced will be necessary for arriving at a just decision.
To emphasize that in case a party, by moving application under Order 41 Rule 27 of the Code of Civil Procedure, takes a plea as envisaged in sub clause (b) of sub rule (1) of Rule 27 of Order 41 of the Code of Civil Procedure then finding needs to be returned on the said issue, regard may be had to the decision of the Apex Court in the case of K. R. Mohan Reddy vs. Net Work INC, represented through M.D, reported in [(2007) 14 SCC 257]. To appreciate the nature of discretion vested in the appellate court to allow a party to lead additional evidence for the purposes of facilitating pronouncement of the judgment in a just manner, paragraph 17 of the judgment of the Apex Court in the case of K. R. Mohan Reddy (supra) is worth noticing, which runs 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".
(Emphasis supplied by the court) In the aforesaid quoted judgment, Hon'ble Apex Court has clearly stated that the appellate court is bound to consider the entire evidence on record and come to an independent finding that adduction of additional evidence is necessary for arriving at a just decision.
In view of what has been held by Hon'ble Apex Court in the case of K. R. Mohan Reddy (supra), it is concluded that the submission made by the learned counsel for the petitioners carries weight. As discussed above, though the application moved by the petitioners before the learned appellate court below contained two grounds, however, no finding has been returned by the court below as regards the issue raised by the petitioners in their application that since the documents sought to be furnished as evidence contained certain admission on the part of the respondents, as such, in case the said evidence is permitted to be taken on record, the same would enable the court to pronounce the judgment by arriving at a just decision. In absence of the aforesaid finding, learned appellate court below has clearly erred in law which renders the impugned order dated 05.04.1995 vitiated.
In the result, the writ petition deserves to be allowed. Accordingly, it is allowed. The impugned order dated 05.04.1995, passed by the Additional Civil Judge, Bahraich in Civil Appeal No.34 of 1991; Imamuddeen and others vs. Mujibullah and others is hereby quashed. Further, a direction is issued to the learned appellate court below to decide the application Ka-48 moved by the petitioners afresh keeping in view the observations made hereinabove in the judgment.
Sri Mohd. Arif Khan, learned Senior Advocate appearing for the respondents has also submitted that the application moved by the petitioners seeking production of the additional evidence was nothing but a dilatory measure adopted by the petitioners. Keeping in view the fact that the appeal is pending since 1991, the learned appellate court below is also directed to decide the entire appeal itself within a period of three months from the date a certified copy of this judgment is produced before it.
In the circumstances of the case, however, there will be no order as to cost.
Dated: December 18, 2012 Sanjay