Court No. - 18
Case :- MATTERS UNDER ARTICLE 227 No. - 5833 of 2016 Petitioner :- Shambhu Nath Mishra And 2 Others Respondent :- Bachanu And Another Counsel for Petitioner :- Amar Nath Singh,Sanjay Srivastava,V.K. Baranwal Counsel for Respondent :- Tarun Kumar Tiwari
Hon'ble Mahesh Chandra Tripathi,J.
Heard learned counsel for the parties.
The plaintiff-petitioners are before this Court assailing the order dated 22.7.2016 passed by Addl. District Judge/ Special judge (Prevention of Corruption Act), Special Court No.4, Varanasi in Civil Appeal No.163 of 2014 (Shambhu Nath Mishra & Ors. v. Bachanu & Anr.), whereby the application (paper no.17Ga) under Order 41 Rule 27 CPC moved by the petitioners to produce the handwriting expert to prove the signature on the registered sale deed in question, which they claimed to be forged, was rejected. It is contended that infact the same were never executed by the first petitioner namely Shambhu Nath Mishra and Late Gyan Chandra Mishra.
The record in question reflects that the aforesaid agreement to sale was executed on 2.2.2980. The petitioners filed Original Suit No.691 of 1992 (Shambhu Nath Mishra & Anr. v. Bachanu & Anr.) for cancellation of sale deed dated 2.2.1980. The entire claim has been set up in the said suit that the respondents had illegally and in forged manner by impersonation got registered sale deed dated 2.2.1980. The respondents have also filed Original Suit No.2062 of 1992 (Bachanu & Anr. v. Shambhu Nath Mishra & Anr.) on 3.12.1992 for permanent injunction over the disputed land. After exchange of the affidavits finally the suit in question filed by the petitioners had been dismissed and the other suit filed by the respondents had been allowed by common order dated 9.9.2014. Aggrieved by order dated 09.09.2014 the petitioners filed Civil Appeal No.162/2014 and Civil Appeal No.163 of 2014, which are pending consideration. On 8.5.2016 the petitioners filed the application (paper no.17Ga) under Order 41 Rule 27 CPC with prayer to permit the petitioners to produce the handwriting expert, which was rejected by impugned order.
Learned counsel for the petitioners has vehemently contended that one more indulgence may be accorded otherwise on the basis of said alleged sale deed the respondents would succeed in the matter and no actual adjudication would be ensured in the matter and the petitioners would suffer irreparable loss and injury.
Per contra, learned counsel for defendant-respondents has vehemently opposed the writ petition and submitted that the sale deed had been executed way back in the year 1980 and the suit has been preferred in the year 1992. In the trial the petitioners had ample opportunity to prove his case but at no point of time the plaintiff-petitioners had ever filed any application to produce hand writing expert to prove the signature on the registered sale deed. Though the trial court has given opportunity to produce the expert but the plaintiff- petitioners did not avail the same and eventually the suit in question was dismissed. Even the appeal in question has been preferred in the year 2014 and at belated stage an attempt has been made through the aforesaid application to revive the issue just to derail the proceeding. The scope and ambit of Order 41 Rule 27 CPC is very limited and as such no interference is required in the matter and the writ petition is liable to be dismissed.
Heard learned counsel for the petitioners and perused the record in question.
The principles governing the jurisdiction of the first appellate Court to take/accept the additional evidence on record under Order 41 Rule 27 CPC, the guidelines had been issued by the Apex Court in Union of India v. Ibrahim Uddin and another, 2013 (4) ALJ 66, wherein it had held that;
"1. 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.
2. The powers under Order 41 Rule 27 CPC given to the first appellate court to take additional evidence is in the nature of exception and has to be exercised in exceptional circumstances with due care and caution.
3. The appellate court may permit additional evidence only and only if the conditions laid down in the said rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence.
4. The matter is entirely within the jurisdiction of the court and is to be used sparingly as the discretion provided therein is a judicial discretion circumscribed by the limitations specified in the rule.
5. The Court shall 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 issue lies fails to discharge the same, would not be entitled to a fresh opportunity to adduce evidence as in such a case the Court can pronounce judgement against him and does not require any additional evidence to enable it to pronounce its judgement in appeal.
6. Under Order 41 Rule 27 CPC, the power given to the appellate court to allow a document to be produced or a witness to be examined, is limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgement. It does not entitle the appellate court to allow a party to remove lacuna in the evidence or supplement the evidence adduced by one party.
7. In absence of satisfactory reasons for the non production of the evidence in the trial court, additional evidence could 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. Thus a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or chose not to do so, cannot have it admitted in appeal.
9. The inadvertence of the party or his inability to understand the legal issue involved or the wrong advice of the pleader or the negligence of the pleader or that the party did not realize the important of the document does not constitute a "substantial cause" within the meaning of this rule. Mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
10. The words "for any other substantial cause" must be read with the word "requires" in the beginning of the sentence, meaning thereby the rule that the appellate court require additional evidence for any substantial cause, will apply in such a case where it is felt by the appellate court that the evidence had been so imperfectly taken by the trial court that it cannot pass a satisfactory judgement.
11. Whenever the appellate court admits additional evidence, it should record its reasons for doing so, as per sub rule (2) of Rule 27 of Order 41 CPC. The requirement in the said sub rule is with a view to put a check against too easy reception of evidence at a late stage of the litigation and further that the statement of reasons inspires confidence of the litigant and disarm objection. The omission to record the reasons must, therefore, be treated as a serious defect. However, the said provision is only directory and not mandatory, if the admission of such evidence can be justified under the rule.
12. The reasons so requires, are not necessarily to be recorded in a separate order and may be embodied in the judgement of the appellate court.
13. Mere reference to the peculiar circumstance of the case or mere statement that the evidence is necessary to pronounce judgement or that the additional evidence is required to be admitted in the interest of justice, or there is no reason to reject the prayer for admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.
14. 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."
Learned court below has recorded findings of fact and unless these findings are shown perverse or contrary to record resulting in grave injustice to petitioner, in writ jurisdiction under Article 227, this Court exercising restricted and narrow jurisdiction would not be justified in interfering with the same.
The scope and ambit of Order 41 Rule 27 CPC is very limited, it is also settled that the appellate court cannot travel outside the record of the lower court and generally cannot appreciate new evidence. Such discretion should be used sparingly. In the present matter the said application was moved to produce hand writing expert to prove the signature on the registered sale deed, but at the same time applicant utterly failed to convince the appellate court in this regard. As such the court has rightly proceeded strictly as per the parameters laid down by Hon'ble the Apex Court in Ibrahim Uddin (Supra) and no interference is required in the matter.
In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.
This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.
In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 Hon'ble Supreme Court said:
"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."
A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".
The Constitution Bench of Apex Court in Nagendra Nath Bora and Another v. Commissioner of Hills Division and Appeals, Assam & Others AIR 1958 SC 398 settled that power under Article 227 is limited to seeing that the courts below function within the limit of its authority or jurisdiction.
In view thereof, I find no justification warranting interference with the order impugned in this writ petition.
The writ petition sans merit and is accordingly dismissed.
Order Date :- 31.7.2018 SP/