Jharkhand High Court
Metro Industries Through Proprietor ... vs Adityapur Industrial Area Development ... on 13 June, 2022
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
[Civil Writ Jurisdiction]
W.P.(C) No. 6116 of 2018
Metro Industries through Proprietor Avnit Kumar
.... .. ... Petitioner(s)
Versus
Adityapur Industrial Area Development Authority (AIADA) & Anr.
. .. ... ...Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO .........
For the Petitioner : Mr. Atanu Banerjee, Advocate
Ms. Piyushita Neha Tudu, Advocate
For the respondent(s)/State : Ms. Moushmi Chatterjee, AC to SC-VII
For the Respondent/ AIADA : Mr. R. C. P. Sah, Advocate
......
05/ 13.06.2022. Having gone through the defect no.5, the same is hereby ignored for the present.
Heard, learned counsel for the parties.
Mr. Atanu Banerjee, learned counsel for the petitioner has submitted that the petitioner-Metro Industries through Proprietor Avnit Kumar, has preferred the instant Writ Petition on 06.12.2018, for quashing the order dated 10.09.2018 (Annexure-3) passed by learned Principal District & Sessions Judge, Seraikella, in Title Appeal No.25 of 2011, whereby the petition filed by the appellant/plaintiff/ petitioner under Order XLI Rule 27 read with Section 151 CPC alternatively under Order XII Rule 1 and 2 CPC has been rejected by the learned court below.
Mr. Atanu Banerjee, learned counsel for the petitioner while assailing the impugned order has submitted that so far the additional evidence which has been sought by the plaintiff/appellant is on the point of non-finding of signature of the authority concerned over the Exhibit-36/1, whereby, the lease granted by the Respondent-Adityapur Industrial Area Development Authority (herein after be referred as AIADA) has been cancelled without application of mind.
Mr. Atanu Banerjee, learned counsel for the petitioner in support of his submission has relied upon the judgment passed by the Hon'ble Apex Court in the case of A. Andisamy Chettiar vs. A. Subburaj Chettiar, reported in 2016 (1) JBCJ 291 at paras 12, 13, 14, 15 and 16 which may profitably be quoted hereunder :-
"12. From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfillment of either of the three conditions mentioned in Rule 27. In the case at hand, no application was moved before the trial court seeking scientific examination of the document (Ex.A-4), nor can it be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him. Now it is to be seen whether the third condition, i.e. one contained in clause (b) of sub-rule (1) of Rule 27 is fulfilled or not.
13.In K.R. Mohan Reddy v. Net Work Inc., (2007) 14 SCC 257, this Court has held as under:-2-
"19. The appellate court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial court, but it will be different if the court itself requires the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the court. But mere difficulty is not sufficient to issue such direction......
14.In North Eastern Railway Admn. v. Bhagwan Das[2], this Court observed thus:-
"13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist........
15. In N. Kamalam (dead) and another v. Ayyasamy and another[3], this Court, interpreting Rule 27 of Order XLI of the Code, has observed in para 19 as under: -
"....... the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal - it does not authorize any lacunae or gaps in the evidence to be filled up. The authority and jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way.
16." In Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148], this Court has held as 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............."
Thus, learned counsel for the petitioner has submitted that the signature on the impugned cancellation order is to be proved, as such, the impugned order passed by the learned lower appellate Court is bad in law and the same may be set aside by this Hon'ble Court.
Mr. Atanu Banerjee, learned counsel for the petitioner in support of his submission has further relied upon the judgment passed by the Hon'ble Apex Court in the case of Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries) & Ors., reported in 2010 (8) SCC 423 at paras 16 to 18 which may profitably be quoted hereunder :-
16. The learned single judge rightly allowed the appellant's plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41, Rule 27. But then the single judge seriously erred in proceeding simultaneously to allow the appeal and not giving the defendants/respondents an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence.
17. The division bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41, Rule 27. As shown above the additional documents produced by the appellant were liable to be taken on record as provided under Order 41, Rule 27 (b) in the interest of justice. But it was certainly right in holding that the way the learned single judge disposed of the -3- appeal caused serious prejudice to the defendants/respondents. In the facts and circumstances of the case, therefore, the proper course for the division bench was to set aside the order of the learned single judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to defendants/respondents to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so.
18. The judgment and order dated April 25, 2003 passed by the division bench is set aside and the matter is remitted to the learned single judge to proceed in the appeal from the stage the original of the registration certificates were taken on record as additional evidence. The learned single judge may allow the defendants/respondents to lead any rebuttal evidence or make a limited remand as provided under Order 41, Rule
28.
Learned counsel for the petitioner has thus, submitted that under provisions of Order XLI Rule 27 (1)(b) CPC, this is a substantial question which is to be adjudicated by the learned lower Appellate Court.
Mr. Atanu Banerjee, learned counsel for the petitioner has further submitted that no substantial order has been passed under Order XII Rule 1 and 2 CPC which was alternatively prayed by the petitioner/appellant/plaintiff before the learned lower appellate Court.
Learned counsel for the petitioner has submitted, that the reasoning given in the impugned order is not in consonance with the reason required under the CPC, as such, the impugned order may be set aside.
Mr. R. C. P. Sah, learned counsel for the respondent -AIADA while opposing the prayer has placed the impugned order at Page-23 which may profitably be quoted hereunder :-
"Admittedly the document sought to be admitted as additional evidence are of dated 18.10.2012 and dated 07.11.2012. The appellant has stated in his petition that it was necessary to ascertain the correct picture in this regard because of the fact that Ext. 36/1 is not signed by anybody. The appellant had already introduced the related document as Ext. 36/1 before the lower court and the lower court, after full flegged trial, passed the judgment. After elapsing of more than six years from the date of filing of appeal, the appellant wants to introduce some documents as additional evidence. Additional evidence cannot be allowed to fill any lacuna."
Mr. R. C. P. Sah, learned counsel for the respondent -AIADA has thus, submitted that when the document has been admitted by the defendant/ respondent that it has been issued by AIADA, there is no such necessity for proving the same under additional evidence.
Mr. R. C. P. Sah, learned counsel for the respondent -AIADA has further submitted, that under Order XLI Rule 27(1)(b) CPC, the Court may verify but since defendant /respondent has already admitted, that the cancellation order has been passed by the competent authority. Further, there is no more lis between the parties and the same shall not be an issue before the learned lower appellate Court -4- for which additional evidence is required as such, the impugned order does not suffer from any irregularity or illegality so as to interfere under Article 227 of the Constitution of India.
Ms. Mousami Chatterjee, learned AC to SC-VII for the State has submitted that it is a dispute between the petitioner and the respondent- AIADA and the State is a formal party in this case.
After hearing learned counsel for the parties and perusing the materials available on records and judgment relied by the learned counsel for the petitioner, this Court has examined the documents on record. It appears that the cancellation order has been issued by the respondent- AIADA, which is admission of AIADA in its written statement as well as before the learned trial court as well as the appellate court. The authenticity of the document cannot be challenged in view of the admission of the AIADA under Order XII Rule 2 CPC as the same has been admitted by the respondent- AIADA. The principle of recording Additional evidence has been discussed by Hon'ble Apex Court in the case of Union of India Vs. Ibrahim Uddin and Anr., reported in (2012) 8 SCC 148 at Paras 36 to 52 which may profitably be quoted hereunder :-
"36. 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. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself.
37. The appellate court should 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 point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. [(1978) 2 SCC 493 : AIR 1978 SC 798] ).
38. Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. (Vide Lala Pancham [AIR 1965 SC 1008] .)
39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should 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. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal.-5-
(Vide State of U.P. v. Manbodhan Lal Srivastava [AIR 1957 SC 912] and S. Rajagopal v. C.M. Armugam [AIR 1969 SC 101] .)
40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment.
42. Whenever the appellate court admits additional evidence it should record its reasons for doing so (sub-rule (2)). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the court of further appeal to see, if the discretion under this Rule has been properly exercised by the court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the Rule.
43. The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.
44. It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable, particularly when the order is subject to further challenge before a higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision-making. The person who is adversely affected must know why his application has been rejected. (Vide State of Orissa v. Dhaniram Luhar [(2004) 5 SCC 568 : (2008) 2 SCC (Cri) 49.
45. In City Improvement Trust Board v. H. Narayanaiah [(1976) 4 SCC 9 : AIR 1976 SC 2403] , while dealing with the issue, a three-Judge Bench of this Court held as under : (SCC p. 20, para 28).
"28. ... We are of the opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence." (emphasis added) A similar view has been reiterated by this Court in Basayya I. Mathad v. Rudrayya S. Mathad [(2008) 3 SCC 120] .
46. A Constitution Bench of this Court in K. Venkataramiah [AIR 1963 SC 1526] , while dealing with the same issue held : (AIR p. 1529, para 13) "13. It is very much to be desired that the courts of appeal should not overlook the provisions of clause (2) of the Rule and should record their reasons for admitting additional evidence. ... The omission to record the reason must therefore be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory." (emphasis added) -6- In the said case, the Court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. In such a fact situation, the order allowing such application did not vitiate for want of reasons.
47. 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.
48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.
Stage of consideration
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 [AIR 1951 SC 193] and Natha Singh v. Financial Commr., Taxation [(1976) 3 SCC 28 : AIR 1976 SC 1053] .)
50. In Parsotim Thakur v. Lal Mohar Thakur [(1931) 34 LW 76 : AIR 1931 PC 143] 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 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 [(1922-23) 50 IA 183 : AIR 1923 PC 128] .)
51. In Arjan Singh v. Kartar Singh [AIR 1951 SC 193] this Court held : (AIR pp. 195- 96, paras 7-8) -7- "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 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."
Considering the judgment of Ibrahim Uddin and Anr. (supra), and the contention raised by the petitioner to discard the same by leading evidence under Order XLI Rule 27 CPC is concerned, this Court is of the opinion that once the document is admitted by the AIADA, there is nothing to be adjudicated by the learned appellate court. If the learned Appellate Court has to verify about the authenticity of the document, the other provisions are there to call for records and to compare the same. As such, there is no illegality which invites an interference by this Court under Article 227 of the Constitution of India.
Accordingly, the instant Writ Petition stands dismissed. Pending I.A., if any, stands closed.
However, the learned appellate court will decide the case on its own merits without being prejudiced by this order.
[Kailash Prasad Deo, J.] Sandeep/