Gauhati High Court
Page No.# 1/6 vs The State Of Assam And Anr on 6 June, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/6
GAHC010185212024
2025:GAU-AS:7626
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/337/2024
MAZAHARUL SULTAN
S/O- LATE RUSTAM ALI, R/O- VILL.- GOTLONG, MOUZA- BHAIRABPAD,
P.O. AND P.S. TEZPUR, DIST. SONITPUR, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE DEPUTY COMMISSION, SONITPUR, TEZPUR,
MOUZA- MAHABHAIRAB, P.O. AND P.S. TEZPUR, DIST. SONITPUR, ASSAM
2:THE CIRCLE OFFICER
TEZPUR REVENUE CIRCLE
MOUZA- MAHABHAIRAB
P.O. AND P.S. TEZPUR
DIST. SONITPUR
ASSA
For the Petitioner(s) : Mr. P. Mahanta, Advocate
For the Respondent(s) : Mr. K. Bhattacharjee, Government Advocate
Date of Hearing : 06.06.2025
Date of Judgment : 06.06.2025
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BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
JUDGMENT AND ORDER (ORAL)
Heard Mr. P. Mahanta, the learned counsel appearing on behalf of the Petitioner and Mr. K. Bhattacharjee, the learned Government Advocate appearing on behalf of the respondent Nos. 1 and 2.
2. The supervisory jurisdiction of this Court is invoked challenging the order dated 04.07.2024 whereby the learned Court of the Civil Judge (Senior Division), Sonitpur at Tezpur (hereinafter referred to as the 'the learned First Appellate Court') had rejected the application filed under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 (for short 'the Code') which have been registered and numbered as Misc. (J) Case No.44/2023.
3. The learned counsel for the petitioner drawing the attention of this Court to the judgment of the Supreme Court in the case of Union of India Vs. Ibrahim Uddin and Another reported in (2012) 8 SCC 148 had submitted that the learned First Appellate Court ought to have considered the application under Order XLI Rule 27 of the Code at the stage of arguments and not prior thereto as it is the settled principle of law. The learned counsel submitted that in the instant case, the learned First Appellate Court had taken up the application under Order XLI Rule 27 of the Code for adducing additional evidence in relation to exhibit five documents even prior to the appeal being heard on merits.
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4. This Court has duly taken note of the judgment of the Supreme Court in the case of Ibrahim Uddin (supra) wherein the Supreme Court at paragraph No.49 to 52 dealt with the stage at which the application under Order XLI Rule 27 of the Code was required to be taken into consideration. The said paragraphs being relevant are reproduced herein under:
"49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. 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. 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. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court. (Vide Arjan Singh v. Kartar Singh and Natha Singh v. Financial Commr., Taxation.)
50. In Parsotim Thakur v. Lal Mohar Thakur it was held : (LW pp. 86-87) "... The provisions of Section 107, Civil Procedure Code, as elucidated by Order 41 Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and fill up omissions in the court of appeal.
... Under Rule 27, clause (1)(b), it is only where the appellate court 'requires' it (i.e. finds it needful).... The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent'. ... It may well be that the defect may be pointed out by a party, or that a Page No.# 4/6 party may move the court to supply the defect, but the requirement must be the requirement of the court upon its appreciation of evidence as it stands. Wherever the court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. ... the power so conferred upon the court by the Code ought to be very sparingly exercised, and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case."
(emphasis added) (See also Indrajit Pratap Sahi v. Amar Singh.)
51. In Arjan Singh v. Kartar Singh this Court held : (AIR pp. 195-96, paras 7-8) "7. ... If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non- existent. ...
8. ... The order allowing the appellant to call the additional evidence is dated 17-8-1942. The appeal was heard on 24-4-1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing its judgment."
(emphasis added)
52. Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing Page No.# 5/6 of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored."
5. From the above quoted paragraphs, it would be seen that an application for taking additional evidence on record at the appellate stage even if filed during the pendency of the appeal is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the Court reaches the conclusion that the additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause.
6. Taking into account the settled principles of law, it is the opinion of this Court that the impugned order dated 04.07.2024 by which the learned First Appellate Court even prior to hearing the appeal on merits have decided the application under order XLI Rule 27 goes contrary to the law laid down by the Supreme Court. Accordingly, the said order dated 04.07.2024 passed in Misc. (J) Case No.44/2023 is interfered with.
7. This Court restores Misc. (J) Case No.44/2023 to the record of the learned First Appellate Court. This Court further directs the learned First Appellate Court to take into consideration the said application at the stage of final arguments of the appeal and thereupon decide the same as per the mandate of the Supreme Court in the case of Ibrahim Uddin (supra) and more particularly the paragraphs above quoted.
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8. This Court further observes and directs that while considering the said application at the time of arguments, the learned First Appellate Court may not be influenced by the order dated 04.07.2024 impugned in the instant proceedings.
9. This Court further takes note of that vide an order dated 09.09.2024, the further proceedings of Title Appeal No.8/2022 was stayed. The said stay order stands vacated and as the parties are duly represented, they are directed to appear before the learned First Appellate Court on 16.07.2025 for further proceedings of the appeal.
10. The Registry is directed to forthwith return the LCR to the learned Court below.
11. With above observations and directions, the instant petition stands disposed of.
JUDGE Comparing Assistant