Gujarat High Court
Surat Doodh Utpadak Sahakari Mandali ... vs Devshibhai Haribhai Patel on 10 February, 2022
Author: A.J.Desai
Bench: A.J.Desai
C/LPA/1462/2019 JUDGMENT DATED: 10/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1462 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 12628 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1462 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI Sd/-
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SURAT DOODH UTPADAK SAHAKARI MANDALI LTD. THROUGH
PRESIDENT/MANAGER
Versus
DEVSHIBHAI HARIBHAI PATEL
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Appearance:
MR RS SANJANWALA, SR. ADVOCATE FOR MR BAIJU JOSHI(1207) for the
Appellant(s) No. 1
MR RAVINDRA SHAH(1299) for the Respondent(s) No. 2,3.1,3.2,3.3
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 10/02/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.J.DESAI) Admit. Learned advocate Mr. Ravindra Shah waives service of admission on behalf of the respondents.
2. By way of present appeal under Clause 15 of the Letters Page 1 of 10 Downloaded on : Fri Feb 11 21:01:11 IST 2022 C/LPA/1462/2019 JUDGMENT DATED: 10/02/2022 Patent, the appellant - original petitioner has challenged an order dated 23.7.2019 passed by the learned Single Judge in Special Civil Application No.12628 of 2019 by which the learned Single Judge has dismissed the writ petition filed by the petitioner challenging the order dated 11.7.2019 passed by the Gujarat State Cooperative Tribunal, Ahmedabad ["the Tribunal"
for short] below application Exh.13 in Appeal No.49 of 2016 which was filed by the appellant therein (present appellant - original petitioner) under Regulation 17 of the Gujarat State Cooperative Tribunal Regulations, 1964.
3. The short facts which emerge from the record are as under:
3.1 That the present respondents had filed a suit being Lavad Suit No.652 of 2002 under Section 99(4) of the Gujarat Cooperative Societies Act, 1961 ["the Act" for short] before the Board of Nominees seeking declaration and injunction in respect of the land in question i.e. land admeasuring 900 sq. mts.
adjacent to Bungalow No.55 of Survey No.390 belonging to the appellant society. The suit was decreed by the Board of Nominees vide judgment and order dated 26.10.2016.
3.2 The appellant society filed an appeal being Appeal No.49 of 2016 challenging the said judgment and decree before the learned Tribunal. During pendency of the appeal, the appellant - original petitioner submitted an application at Exh.13 on 16.11.2017 under Regulation 17 of the Gujarat State Cooperative Tribunal Regulations, 1964 ["the said Regulations"
for short] seeking permission to produce about 26 documents as per the list annexed to the said application.Page 2 of 10 Downloaded on : Fri Feb 11 21:01:11 IST 2022
C/LPA/1462/2019 JUDGMENT DATED: 10/02/2022 3.3 The Tribunal rejected the said application, inter alia, holding that there is no reference of those documents, which the appellant intends to produce, in the memo of the appeal nor any supporting affidavit was filed. The said application was also dismissed holding that the Tribunal does not find any reason to entertain the same and also does not want to exercise its discretionary powers under Regulation 17 of the said Regulations. The said decision was challenged before this Court, which came to be dismissed by the learned Single Judge.
Hence, this appeal.
4. Mr. R.S.Sanjanwala, learned Senior Advocate assisted by Mr. Baiju Joshi, learned advocate for the appellant, would submit that the provisions under Regulation 17 of the said Regulations are at par with the provisions of Order 41 Rule 27 of the CPC. Relying upon Order 41 Rule 27 of CPC, he would submit that though there is no bar of production of additional evidence at the appellate stage, the same can be accepted under several circumstances. He would submit that the application, which was filed by the present appellant has been rejected by the Tribunal on the ground that there is no reference about those documents in the appeal memo nor any affidavit was filed supporting such application. He would submit that the appellant
- original petitioner has submitted before the learned Single Judge that he is ready to make a fresh application in detail which was not accepted by the learned Single Judge. He would further submit that even the admissibility or acceptance of those documents, which the parties intend to produce at the appellate stage, can be considered at the time of hearing of the appeal. In support of his submissions, he has relied upon the decision of the Hon'ble Apex Court in case of Union of India v. Ibrahim Uddin Page 3 of 10 Downloaded on : Fri Feb 11 21:01:11 IST 2022 C/LPA/1462/2019 JUDGMENT DATED: 10/02/2022 & Anr. [(2012) 8 SCC 148]. By taking us through the findings of the Hon'ble Apex Court, which are recorded in para 49 to 52 below the expression "Stage of consideration", he would submit that the appellate Court can decide the admissibility or acceptance of such documents at the time of hearing of the appeal and therefore, the Tribunal ought to have decided the application Exh.13 at the time of final hearing of the appeal and not at an interregnum period.
4.1 He would further submit that a question has been raised by the learned advocates before the appellate Court that since this decision was neither relied upon by the appellant before the learned Tribunal nor before the learned Single Judge, now such arguments are not permissible in law. In support of his submission, he has relied upon the decision of the Division Bench of this Court in case of Jenusan Textile v. Rajkot Municipal Corporation [1999(1) GLR 460]. However, as per the ratio laid down by the Hon'ble Apex Court in case of Rajendra Shankar Shukla & Ors. v. State of Chhattisgarh& Ors. [(2015) 10 SCC 400], the Hon'ble Apex Court has held that a party can raise legal question at any stage even before the higher Court of the country. He, therefore, would submit that the order passed by the learned Tribunal and confirmed by the learned Single Judge may be quashed and set aside and appropriate order may be passed.
5. Pursuant to the notice issued by this Court, the respondents have appeared through learned advocate Mr. Ravindra Shah and has opposed this appeal. He would submit that the learned Tribunal has rightly exercised its discretionary powers under Regulation 17 of the said Regulations and Page 4 of 10 Downloaded on : Fri Feb 11 21:01:11 IST 2022 C/LPA/1462/2019 JUDGMENT DATED: 10/02/2022 therefore, the learned Single Judge has rightly not exercised his powers under Article 227 of the Constitution of India. Since the petition was filed under Articles 226 and 227 of the Constitution of India, the learned Single Judge has exercised his powers only under Article 227 of the Constitution of India and therefore, the Appeal under Clause 15 of the Letters Patent would not lie. He would submit that in case of Jenusan Textile (supra), it has been categorically held by the Division Bench of this Court, more particularly in para 4 and 5 that the Letters Patent Appeal Bench would not decide the issues, which have been raised for the first time before the Bench while entertaining an Appeal under Clause 15 of the Letters Patent. By taking us through para 77 and 78 of the decision in case of Ibrahim Uddin (supra), he would submit that no evidence is permissible to be taken on record in absence of pleading in that respect and therefore, the learned Courts below have committed no error in rejecting the said application.
6. We have heard learned advocates for the respective parties and perused the material on record.
7. At this stage, it would be appropriate to take into consideration Regulation 17 of the said Regulations, which reads as under:-
"17. Fresh evidence and witness.- (1) No party to an appeal or an application for revision shall be entitled to adduce fresh evidence, whether oral or documentary, before the Tribunal. The Tribunal may accept documents tendered by a party or call for them if it is of opinion that they are necessary for deciding the appeal or application provided that the other party shall in that case be entitled to produce rebutting the evidence.
(2) xxx .... xxx .... xxx"
7.1 Whereas, the provisions of Order 41 Rule 27 of the CPC Page 5 of 10 Downloaded on : Fri Feb 11 21:01:11 IST 2022 C/LPA/1462/2019 JUDGMENT DATED: 10/02/2022 reads as under:-
"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) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission."
7.2 Regulation 44 of the said Regulations makes it clear that while dealing with the suit filed under the Act and in subsequent proceedings like appeal, review and revision, the provisions of CPC would be applicable. Apart from said aspect, Chapter XIII of the Act deals with the powers and procedure for establishment of Coperative Tribunal and applicability of several provisions, more particularly sub-section (12) of Section 150 makes it clear that the Tribunal while hearing an appeal under the Act shall exercise all the powers conferred upon an appellate Court under Section 97 and Order 41 in the First Schedule of the CPC. Section 150(12) of the Act reads as under:-
"150(12) The Tribunal hearing an appeal under this Act shall exercise all the powers conferred upon an appellate Court by Section 97 and Order XLI in the First Schedule of the Code of Civil procedure, 1908 (V of 1908)."
8. As far as the contention raised with regard to bringing to the notice of the learned Tribunal or the learned Single Judge about the decision of the Hon'ble Apex Court in case of Union of Page 6 of 10 Downloaded on : Fri Feb 11 21:01:11 IST 2022 C/LPA/1462/2019 JUDGMENT DATED: 10/02/2022 India v. Ibrahim Uddin & Anr. [(2012) 8 SCC 148] is concerned, the Hon'ble Apex Court in case of Rajendra Shankar Shukla & Ors. v. State of Chhattisgarh& Ors. [(2015) 10 SCC 400] has categorically held in para 28 and 29 as under:-
"28. We are not able to agree with the contention of the respondent that a ground raised before this Court for the first time is not maintainable because it has been raised before us for the first time and has not been raised before the courts below. Though the said legal plea is raised for the first time in these proceedings, the learned senior counsel on behalf of the appellants placed reliance upon the judgment of the Privy Council In Connecticut Fire Insurance Co. v. Kavanagh[5] wherein, Lord Watson has observed as under:
"...When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea." The aforesaid views of the Court of Appeal have been relied upon by this Court in Gurcharan Singh v. Kamla Singh[6].
29. The above mentioned aspect of Article 243ZD, although is being raised before this Court for the first time, we are of the view that the same is based on admitted facts. The legal submission made on behalf of the appellants under Article 243ZD of the Constitution has to be accepted by this Court in view of the similar view that a new ground raising a pure question of law can be raised at any stage before this Court as laid down by this Court in V.L.S. Finance Limited v. Union of India & Ors.[7], which reads thus :-
"7. Mr Shankaranarayanan has taken an extreme stand before this Court and contends that the Company Law Board has no jurisdiction to compound an offence punishable under Section 211(7) of the Act as the punishment provided is imprisonment also. Mr Bhushan, however, submits that imprisonment is not a mandatory punishment under Section 211(7) of the Act and, hence, the Company Law Board has the authority to compound the same. He also points out that this submission was not at all advanced before the Company Law Board and, therefore, the appellant cannot be permitted to raise this question for the first time before this Court. We are not in agreement with Mr Bhushan in regard to his plea that this question cannot be gone into by this Court at the first instance. In our opinion, in a case in which the facts pleaded give rise to a pure question of law going to the root of the matter, this Court possesses discretion to go into that. The position would have been different had the appellant for the first time prayed before this Court for adjudication on an issue of fact and then to apply the law and hold that the Company Law Board had no jurisdiction to compound the offence."
8.1 This Court has examined the ratio laid down by the Hon'ble Apex Court in case of Ibrahim Uddin (supra). The Hon'ble Apex Court has held in para 49 to 54 of the said decision Page 7 of 10 Downloaded on : Fri Feb 11 21:01:11 IST 2022 C/LPA/1462/2019 JUDGMENT DATED: 10/02/2022 as under:-
"Stage of Consideration :
49. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find 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 & Ors., AIR 1951 SC 193;
and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053).
50. In Parsotim Thakur & Ors. v. Lal Mohar Thakur & Ors., AIR 1931 PC 143, it was held:
"...The provisions of S.107 as elucidated by O.41, R.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 R.27, Cl.(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 apply 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 R. 27(2) to record its reasons for so doing, and under R.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)
51. In Arjan Singh v. Kartar Singh & Ors. (supra), this Court held:
"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.Page 8 of 10 Downloaded on : Fri Feb 11 21:01:11 IST 2022
C/LPA/1462/2019 JUDGMENT DATED: 10/02/2022 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 the judgment" (Emphasis added)
52. Thus, from the above, it is crystal clear that 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 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, 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.
53. In the instant case, the application under Order XLI Rule 27 CPC was filed on 6.4.1998 and it was allowed on 28.4.1999 though the first appeal was heard and disposed of on 15.10.1999. In view of law referred to hereinabove, the order dated 28.4.1999 is just to be ignored.
54. The High Court while admitting the appeal had framed the following substantial questions of law:
1. Whether the judgment and decree passed by the lower appellate court is vitiated in law inasmuch as the land in dispute which was recorded in Column B-4 under Rule 6 of the Cantonment Land Administration Rule 1937 was wrongly and illegally discarded on the ground of secondary evidence in the presence of the original register maintained by the Military Estate Officer?
2. Whether the certified copy of the relevant registers maintained under the Cantonment Act are admissible in evidence and appellate court erred in law in discarding the same illegally against the relevant provisions of the Evidence Act and decreed the suit of the plaintiff on the false pretext that there is no document was filed on behalf of the defendant?
3. Whether the appellate court did not consider this aspect at all that the suit for declaration without possession is not maintainable is barred by the provision of Specific Relief Act.?
4. Whether the lower appellate court has committed illegality while accepting the Will dated 1.3.1992 filed on 28.4.1999 without its proof by plaintiff?
The High Court admittedly did not answer any of them, though had the question Nos. 2, 3 and 4 been decided, the result would have been otherwise."
9. In view of above ratio laid down by the Hon'ble Apex Court, we, hereby, quash and set aside the order dated 23.7.2019 passed by the learned Single Judge in Special Civil Application No.12628 of 2019 as well as the order dated 11.7.2019 passed by the Gujarat State Cooperative Tribunal, Ahmedabad below Page 9 of 10 Downloaded on : Fri Feb 11 21:01:11 IST 2022 C/LPA/1462/2019 JUDGMENT DATED: 10/02/2022 application at Exh.13 in Appeal No.49 of 2016.
9.1 We hereby direct that the application at Exh.13 shall be heard and decided simultaneously at the time of hearing of the appeal finally. It would be open for the present respondents - original plaintiffs to raise all contentions, including maintainability of the application at Exh.13 and also about admissibility of those documents which the appellant intended to produce before the Appellate Tribunal.
With above observations, the appeal is allowed and accordingly, stands disposed of.
In view of disposal of main appeal, Civil Application for stay also stands disposed of.
Sd/-
(A.J.DESAI, J) Sd/-
(ANIRUDDHA P. MAYEE, J.) KAUSHIK D. CHAUHAN Page 10 of 10 Downloaded on : Fri Feb 11 21:01:11 IST 2022