Jharkhand High Court
Jagdish Ram Gupta @ Jagdish Ram vs Shiv Shankar Prasad Swarnkar on 6 March, 2024
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 328 of 2023
Jagdish Ram Gupta @ Jagdish Ram, aged about 71 years, son of Late
Chintaman Ram Gupta, resident of Station Road, Isri Bazar, P.O. and P.S.
Nimiyaghat, District Giridih, Jharkhand ...... Petitioner
Versus
Shiv Shankar Prasad Swarnkar, son of Sri Ramawatar Prasad Swarnkar, resident
of Isri Bazar, New Bus Stand, P.O. Dumri, P.S. Dumri (at present Nimiyaghat),
District Giridih ......Opposite Party
.....
For the Petitioners : Mr. P.K. Mukhopadhyay, Advocate
For the Opposite Party : Mr. A.K. Sahani, Advocate
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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JUDGMENT
C.A.V. On 07.12.2023 Pronounced On: 06.03.2024
1. The instant petition is directed against the order dated 01.02.2023 passed by the learned Principal District Judge, Giridih in Civil Appeal No. 42 of 2019 (Annexure 3), whereby and whereunder the petition dated 04.12.2021 (in the impugned order it is mentioned as 06.12.2021) filed by the petitioner under Order 41 Rule 27 read with Section 151 CPC has been rejected.
2. Learned counsel for the petitioner assailing the impugned order has vehemently argued that the learned curt below has miserably failed to take into consideration that the documents proposed to be adduced as additional evidence are very much essential in this case for full and final adjudication of the lis between the parties. The petitioner has proved all the requirement for admission of additional evidence as required under Order 41 Rule 27 CPC which has been ignored by the court below without assigning the valid and sound reasons.
3. It is further submitted that the respondent/plaintiff has filed Eviction Suit No. 21 of 2008 against the petitioner for eviction from the suit premises on the ground 2 of default in payment of rent. The real fact is that the present petitioner/defendant was never inducted as tenant by the plaintiff over the suit premises as such there was no relationship of landlord and tenant between the plaintiff and defendant/petitioner. It is further submitted that originally the land under suit was recorded in the name of one Khuda Bux Mian in survey settlement khatiyan and with his permission the defendant/petitioner has constructed Khaparapose house over the portion of the said land of plot no. no. 641 under Khata No. 7 of Isri Bazar since then petitioner is residing along with his family members in the said portion of said premises since more than last 50 years. It is further submitted that plaintiff is claiming title over the suit premises on account of the purchased through sale deeds from one Dinesh Bhagat who had no right title and interest to execute any sale deed in favour of any person and is not binding upon the interest of petitioner. It is further submitted that the said title suit was decreed by learned trial court in favour of plaintiff which has been assailed in civil Appeal No. 42 of 2019 by the present petitioner and during pendency of the appeal while petitioner was searching some documents in relation to the subject matter of the suit, found some documents kept in old box which were not available during the trial of the case, hence, the same could not be adduced in evidence during trial of the suit. Hence, defendant/petitioner filed an application dated 04.12.2021 under Order 41 Rule 27 CPC along with list of some documents, which are more than 40 years old consisting of postcard correspondence, bank cheque book, challan, letter pad, documents issued by the Forest Department and Panchayat paper which shows that the appellant Dinesh Bhagat is living in the suit premises prior to 1987. It is urged by learned counsel for the petitioner that those documents are necessary for just and complete decision of the suit and appeal and the learned court below 3 have committed an error by declining to admit the said vital documents as additional evidence, hence, impugned order is fit to be set aside by allowing this petition.
4. Per contra learned counsel appearing for the respondent has submitted that the petition filed under Order 41 Rule 27 CPC by the present petitioner/defendant was devoid of merits and tainted with deliberate delay in the trial of the case and the hearing of the appeal. The learned appellate court has rightly rejected the aforesaid application of the petitioner observing that it was with object to fill up the lacuna or to patch up weak points in the case of the defendant. The reasons assigned by the appellant for non production of said documentary evidence before the learned trial court was not sufficient and the same was refused and as such, the documents as filed on behalf of the appellant is beyond the pleadings and can't be accepted at this stage. There is no illegality or infirmity in the impugned order calling for any interference by way of this petition which is fit to be dismissed.
5. The only point for determination in this petition under Article 227 of the Constitution of India is that whether impugned order suffers from any illegality or infirmity calling for any interference or not?
6. Before parting my verdict on the above issue/point appraisal from certain relevant aspect appears to be necessary.
7. The plaintiff/respondent has instituted the Eviction Suit No. 21 of 2008 for eviction of the defendant on the ground that the suit premises belong to one Lalji Bhagat who obtained the same through Hukmnama from Raja Ram Bahadur Singh of Palganj Estate, dated 14.03.1930. The said Lalji Bhagat after vesting of the zamindari was recognized as raiyat by the State of Bihar and started paying rent to the government of Bihar. The said Lalji Bhagat had two brothers namely, 4 Gulab Chand Bhagat and Babu Ganga Bhagat, sons of late Halkhori Bhagat, who had partitioned all the land in three shares by virtue of registered partition deed no. 2408, dated 06.05.1941 and the house in suit along with other land was allotted in the share of Lalji Bhagat, who also died leaving behind his two sons, namely, Ramesh Bhagat and Dinesh Bhagat, who also partitioned their land on suit premises and in that partition the land and house in suit was allotted in the share and takhata of Dinesh Bhagat who was coming in peaceful possession and he inducted the defendant as a monthly tenant upon the suit land in the month of June, 1987 on the monthly rent of Rs. 20 payable according to English calendar in the first week of each month. Since then, the defendant has been living in the suit premises with his family members. Dinesh Bhagat was also granting rent receipts in favour of the defendants in consideration of the tenancy in token of the payment of monthly rent. The plaintiff relied upon receipt no. 0573 dated 15.01.1988 for the rent of month of June 1985 to December 1987 amounting to Rs. 80 and defendant has put his signature on the counter-foil of the rent receipt. The rent was also increased from time to time and enhanced to Rs. 300/- per month till August 1997 and rent receipt no. 442 dated 20.09.1997 has been issued to the defendants which also bears his signature. On request of the defendant/tenant some renovation and additional constructions like bathroom, latrine, etc. were made and electric connection was also taken and the rent was increased to Rs. 2000/ per month. Rent receipts issued for the year 2006, 2007 & 2008 has also been filed. The plaintiff Shiv Shankar Prasad Swarnkar has purchased the suit land and premises by virtue of registered sale deed no. 9996 dated 29.07.2008 from the right full owner Dinesh Bhagat and obtained symbolic possession over the suit property and acquired very ownership right and title over the suit premises. 5
8. The plaintiff intimated the defendant informing about purchase of the suit premises and his entitlement to get rent of the suit property and also served a legal notice sent through registered post on 11.08.2008 to the defendant demanding the payment of arrears of rent to be paid to plaintiff henceforth, which was duly served upon the defendant. The defendant replied the notice sent by the plaintiff but paid nothing. The next ground taken by the plaintiff that he has lost family members and not any other accommodation to live hence, plaintiff is also required the suit premises for personal bonafide, use and occupation. Hence, this suit was filed for eviction of the defendant on the aforesaid ground.
9. According to petitioner/defendant the suit premises was never let out to him as alleged by the plaintiff rather he has been residing in this suit premises on the basis of ground of permission by original owner of the suit land, namely, Khuda Bux Mian to the father of defendant. On that basis father of the defendant constructed Khaparapose house over the portion of the said land of plot no. no. 641 and he was living in the house and also paying rent to Khuda Bux Mian, thereafter, the defendant also made several new construction by removing and remodeling the old house and adding some facility. The said Khuda Bux Mian died prior to vesting of zamindari leaving behind his heirs who never came to Isris Bazar and they were living at Lal Bazar area, Kolkata and Asansole who have relinquished their right title and interest in the property of Isris Bazar in favour of defendant. The claim of plaintiff that Dinesh Bhagat and Laljee Bhagat were recorded raiyat on false and imaginative and plaintiff has got no right title and interest on the basis of alleged sale deed which is not binding upon the interest of defendant. As such, the case of the defendant is that he is residing in the suit 6 premises on the strength of his own right, title and interest denying the factum of tenancy as well as title of plaintiff.
10. It appears that during trial of the eviction suit both parties have adduced their oral as well as documentary evidence and after completion of trial the suit of the plaintiff was decreed on contest vide judgment dated 31st July, 2019 (annexure 5).
11. The present petitioner has filed an appeal assailing the judgment and decree passed by learned trial court and during pendency of the appeal an application under Order 41 Rule 27 was filed which has been rejected by the learned appellate court.
12. Now reverting back to the question of legality/propriety of the impugned order it is relevant to quote the provision of order XLI Rule 27 CPC which runs as under.
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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
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13. A bare reading of above provisions it is evident that the provisions of Order 41 Rule 27 of the Code of Civil Procedure grants power on the appellate court to grant leave to either party to adduced additional evidence on two vital conditions:-
i.e. (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. Admittedly this ground is not available to the petitioner in the instant case since it is admitted by him that the document sought for as additional evidence could not have been brought to the notice of the trial court as the same was not within his knowledge and was kept in an old box. Therefore, there was no occasion to file the said documents before the trial court of its refusal to admit.
14. The next ground mentioned in clause I (aa) requires that party seeking additional evidence must establish 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 appeal against was passed. On this ground also the learned appellate court has found no exercise of due diligence on the part of present petitioner to accept the application under Order 41 Rule 27 CPC. It appears that there was full dress trial for a long period before the concerned trial court, therefore a casual approach of the petitioner about no knowledge of the said document which was kept in a old box cannot be accepted.
15. Now the provision of sub clause 1(b) which provides that when the appellate court requires any documents to be produced or any witness to be examine to enable it to pronounce judgment or for any other substantial cause, this ground is still live and may be considered by the concerned appellate court at the proper 8 stage of hearing of the case and appropriate order may be passed in the interest of justice.
16. At this juncture, the legal principles laid down by the Hon'ble Apex Court in the case of Union of India Versus Ibrahim Uddin and Anr. reported in (2012) 8 SCC 148, requires to be quoted.
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 [1951 SCC 178 : AIR 1951 SC 193] and Natha Singh v. Financial Commr., Taxation [(1976) 3 SCC 28 : AIR 1976 SC 1053] .)
17. In view of aforesaid observation and reasons and also keeping in view the observation made by Hon'ble Apex Court in the case of Ibrahim Uddin(supra) this Court is of the view that while dealing with the provision of Order 41 Rule 27 CPC "true test" to be adjudged by the appellate court as to whether the appellate court is able to pronounce the judgment on the material before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence sought as it stand the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court.
18. Therefore, in view of the aforesaid facts and circumstances, the impugned order is not required to be interfered with at present, hence, this petition is dismissed. It is needless to say that the learned appellate court shall follow the 9 observation and direction as quoted above by the Hon'ble Apex Court in the case of Ibrahim Uddin (supra) at para 49 of the said judgment at the time of final hearing of the appeal.
19. Let a copy of this order be sent to the court below for information and needful.
(Pradeep Kumar Srivastava, J.) Jharkhand High Court, at Ranchi Date: 06/ 03 /2024 Rajnish/- N.A.F.R.