Jharkhand High Court
Basudev Dutta @ Basudeo Dutta vs Edus Birdget Collette on 19 April, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 362 of 2023
Basudev Dutta @ Basudeo Dutta, Aged about 60 years, son of Binay
Kumar Dutta, Resident of Ward No.5, Mohalla Chandmari Town, P.O.
& P.S. Chakradharpur, District- West Singhbhum.
.... Petitioner/Plaintiff/Appellant
Versus
Edus Birdget Collette, daughter of late R.W. Collette (as claimed by
her in Misc. Case No. 12/2004 arising out of Execution Case No.
7/95), Resident of 16, Khasmahal, Jamshedpur, P.O. Jamshedpur-2,
P.S. Parsudih, District- Singhbhum West.
.... Respondent /Defendant /Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner: Mr. Atanu Banerjee, Advocate Mr. Rohit Basak, Advocate Mr. Suman Ghosh, Advocate
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09/Dated: 19th April, 2024
1) Pursuant to the order dated 12.04.2024, the report has been furnished on 18.04.2024 by the learned Registrar General (I/c.)
2) It is evident from the aforesaid report that on the direction of Hon'ble the Acting Chief Justice, the show-cause notice has been issued upon the concerned employees of the concerned Sections, namely, Sri Shailendra Kumar Sonu, S.O. cum Dealing Assistant I/c and Sri Akhilesh Kumar, Dealing Assistant and replies to the said show-cause notice have been submitted which are under consideration.
C.M.P. No. 362 of 2023 Prayer
3) This is an application under Article 227 of the Constitution of India, for quashing of the order dated 06.02.2023 passed by the learned District Judge-IV, at Chaibasa in Civil Appeal No.02/2021 whereby and whereunder the application filed on behalf of the 1 of 14 petitioner/appellant under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (in short 'CPC') for adducing additional evidence at the appellate stage has been rejected.
Brief Facts of the Case
4) The case of the plaintiff/petitioner(herein) in short is like that the Title suit no.06 of 2005 has been filed by the plaintiff/petitioner for declaration of the right, title and interest over the suit property as described in schedule A and schedule B of the plaint.
5) The fact as narrated in the said Title Suit being Title suit no.06 of 2005 is like that the father of the plaintiff (petitioner herein), namely Vinay Kumar Dutta (original plaintiff) purchased the schedule 'A' property from its previous owner and for valuable consideration by sale deed no. 414 of 1989, dated 17.04.1989 executed by Sri Bunilal Singh, S./o Late Shivdat Singh as Attorney holder of Russel Fernandes, S/o of Late J. Fernandes in respect with raiyati land situated in Mauza Kolchakrá Municipal, Ward No. 5, Chakradharpur, Plot No. 260, Khata No. 114 having an area of 0-4-0 Katha.
6) Further by another sale deed no.2682 dated 28.02.1990 executed by self same vendor in favour of the plaintiff, land bearing Plot No. 259, Khata No. 114, Ward no. 5, Chakradharpur having an area of 0.38 decimals was purchased by the plaintiff and simultaneously with purchase of land as above, the plaintiff came in possession of the entire lands and the plaintiff extended his possession over the contiguous of Plot no. 260 and came into possession in all of 0.75 decimals of land.
7) Thus, plaintiff is in continuous, peaceful, open and uninterrupted possession of 0.75 decimals of land fully described in schedule 'B' of the plaint. Plaintiff has acquired Indefeasible right, title and interest 2 of 14 over the 2 decimals of land by continuous possession of the same in his own right since February, 1990 and onward till date, which is more than 12 years and have thus perfected his right, title under principles of adverse possession law of prescription.
8) Further case of the plaintiff is that after purchase of the land for valuable consideration plaintiff raised pucca structures thereon in the year 1989 and is residing there with all his family members and he is regularly paying the land revenue to the State as also the holding Tax for the new holding no. 5 to the Municipal Authorities and the suit lands were duly recorded in the Recent Survey under Khata no. 114 in the name of Russel Fernandes, the vendor of plaintiff and the schedule "A" property has duly been mutated in the name of the plaintiff in Chakradharpur Anchal Mutallion Case No. 297 of 1995, vide order dated 18:08 1996.
9) Further case of the plaintiff is that coming to know of the Execution Case No.7 of 1995 of the Court of learned Sub-Judge I, Chalbasa, the plaintiff filed an application claiming right, title and interest over the suit properties, which was registered as Misc Case No.12 of 2004. However, the learned Subordinate Sub-Judge-I vide order dated 06.10.2004 dismissed the Misc. Case.
10) Thereafter, the plaintiff preferred an appeal in the court of learned District Judge, Chaibasa vide Misc Appeal No.3 of 2004 against the said order. The learned District Judge dismissed the appeal holding that order passed by the Court below is conclusive subject only to the result of a suit filed. Hence, the said Title suit no.06 of 2005 has been filed before the court of Sub-Judge-II,Chaibasa.
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11) The learned court of court of Sub-Judge-II, Chaibasa vide order dated 30.01.2009 had held that suit as framed is not maintainable and plaintiff has no valid cause of action for the suit.
12) Thereafter, the plaintiff has preferred First Appeal being First Appeal No. 30 of 2009 before this Court against the said order dated 30.01.2009 and in the said appeal, an application was filed under XLI Rule 27 of the CPC for adducing additional evidence.
13) However, in view of the subsequent amendment and enhancement of the pecuniary jurisdiction of the District Judge, the said First Appeal was remitted to be heard and decided by the District Judge, West Singhbhum, Chaibasa and accordingly, the Civil Appeal No. 2 of 2021 was registered.
14) Thereafter, a separate petition under Order 41 Rule 27 of the C.P.C. for adducing the further evidence was filed in the Civil Appeal No. 2 of 2021.
15) It is evident from the application filed under order XLI Rule 27 that the petitioner has sought to bring on record and exhibit the certified copy of judgment and decree passed in Original (Title) Suit No. 10 of 2016 and Civil Appeal No. 1 of 2019, certified copy of registered Power of Attorney No. 21 dated 15.05.1987 and deposition of one staff of Sub- Registrar examined as DW.2 in Original (Tittle) Suit No. 10 of 2016 to prove the Power of Attorney.
16) However, in the petition filed under Order XLI Rule 27 of the CPC, there is no reference as to under which circumstances, the said Power of Attorney could not be filed, but it appears from the application under Order XLI Rule 27 of the CPC that the ground has been taken that the said registered Power of Attorney could not be produced before the learned Trial Court. Hence, the said registered 4 of 14 Power of Attorney was not available with the petitioner. Meaning thereby, the petitioner wants to take the plea that the said document was in his possession and hence, he by showing the ground of due diligence has made prayer for allowing the said additional evidence to be brought on record which, according to the petitioner, is a vital document for adjudication of the lis,
17) The rejoinder had been filed to the said application filed under Order XLI Rule 27 of the CPC. The ground has been taken that the application under Order XLI Rule 27 of the CPC cannot be allowed in a routine manner, rather it is to be allowed with all circumspection and not to be allowed in order to fill up the lacuna, otherwise, it will be an unending process.
18) The learned Trial Court has appreciated the ground as per the pleading made in the petition and the rejoinder and has rejected the said application filed under Order XLI Rule 27 of the CPC, against which the present petition has been filed under Article 227 of the Constitution of India under its writ jurisdiction. Submission of the learned Counsel for the petitioner:
19) Mr. Atanu Banerjee, learned counsel appearing for the petitioner, has taken the ground that although the petition under Order XLI Rule 27 of the CPC was filed on the ground that the said document could not have been produced even accepting that there is no proper explanation said to be shown as a due diligence showing the reason as to why the said Power of Attorney could not have been produced at the time trial for its consideration, but the learned First Appellate Court ought to have taken into consideration the very import of the provision of Order XLI Rule 27, particularly sub-clause (b) wherein it has been provided that if the additional document is not fit
5 of 14 to be accepted due to non-compliance and non-availability of the reason as provided under Order XLI Rule 27(a) or in sub-clause (aa), then the provision has been made under (b) of Order XLI Rule 27, wherein the right of the learned Appellate Court to consider the said document at the time of pronouncement of judgment so as to assess the fact that the document which has been sought to be filed by way of additional evidence is germane to the issue and in absence thereof, if any suit has been decided, the same is required to be considered at the time of pronouncement of judgment.
20) It is further contended that the application although has been rejected said to have not shown the due diligence, but while doing so, the learned Court ought to have made an observation that the said document will be taken into consideration at the time of pronouncement of judgment under its discretionary power. But, the learned Appellate Court having not done so, hence, patent illegality has been done. Hence, the present application. Analysis
21) As would be evident from the order dated 14.07.2023, the Coordinate Bench of this Court at the initial instance while hearing the petition had issued notice to the Opposite Party regarding the query under Order XLI Rule 27 of the CPC under the registered post with A/D as well as under ordinary process.
22) The steps for notice were taken, but unserved notice was received due to "address not found" as also the undelivered registered notice has been received.
23) On 19th January, 2024 this Court directed the petitioner to serve notice through the learned counsel who is appearing for the defendant with a further direction upon the petitioner to file 6 of 14 supplementary affidavit. For ready reference, the order dated 19th January, 2024 is being reproduced hereinbelow:-
"Again, the steps have been taken for notice in pursuance to the order dated 14.09.2023 but the same has been returned with the same reason as has been referred in the office note dated 02.09.2023.
2. So far as the notice issued to the ordinary process is concerned, it has not been received as yet.
3. Mr. Atanu Banerjee, learned counsel for the petitioner has submitted that since the appeal is lying pending and the said appeal is lying pending due to pendency of the instant petition and it would be just and proper and in the ends of justice to give him liberty for serving notice upon the learned counsel for the defendant in the appeal so that the matter be expedited and decided.
4. This Court, taking into consideration the aforesaid fact that since the appeal is lying pending and the notice twice has been sent but still the same has not been served as per the aforesaid office note, therefore, deems it fit and proper to grant such liberty.
5. Accordingly, the notice be served through the appellate court in favour of the defendant.
6. If such application will be filed before the concerned appellate court, the appellate court will take endeavour for serving of notice through the counsel representing the defendant.
7. Learned counsel for the petitioner is directed to file supplementary affidavit showing the steps taken for notice on the correct and present address of the sole respondent.
8. Let a report be submitted by the concerned appellate court so as to reach to this Court on or before the next date of hearing about the service of notice upon the learned counsel for the defendant so that the same be served upon his counsel to whom he is representing, i.e., the defendant herein.
9. List this matter on 16.02.2024."
24) On 26th February, 2024 the learned counsel for the petitioner submitted before this Court that the notice has been served personally upon the learned counsel who is appearing on behalf of the sole 7 of 14 respondent-defendant before the learned Trial Court. A direction was also given to the learned counsel for the petitioner to file an affidavit to that effect.
25) The matter was again heard on 12th April, 2024 and by that time the supplementary affidavit was filed stating that the notice has been served upon the concerned respondent through her counsel, namely, Sri Amresh Kumar Sao and in support of said contention, the order dated 05.02.2024 passed by the learned District Judge-IV, West Singhbhum at Chaibasa where the appeal being Civil Appeal No.02 of 2021 is lying pending has been appended. This Court considering the aforesaid order has accepted the notice deemed to be validly served and posted for further argument in the matter.
26) Still, there is no appearance on behalf of the respondent, hence, the matter has been heard and on conclusion of the hearing, this Court on appreciation of the argument advanced on behalf of the petitioner is now required to answer as to while rejecting the petition filed under Order XLI Rule 27 of the CPC said to be filed under clause (aa) thereof, will it be said to be proper in rejecting the same by the appellate Court without making any observation for its consideration at the time of pronouncement of judgment?
27) This Court in order to answer the aforesaid issue first needs to refer the provisions of Order XLI Rule 27 of the CPC. The provision 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
8 of 14 (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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
28) It is evident from the aforesaid provision that the basic object behind its legislation is that there may not be any miscarriage of justice for want of a document or due to bona fide mistake of the litigant concerned.
29) 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. Further, appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence.
However, at the same time, 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.
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30) Further, the interpretation of Order XLI Rule 27 of the CPC has been dealt with in detail by the Hon'ble Apex Court in the case of Union of India Vs. Ibrahim Uddin and Another, (2012) 8 SCC 148, wherein the Hon'ble Apex Court while laying the proposition has upheld the aforesaid provision by making a specific ratio therein that although the condition stipulated under sub-clause (b) is the discretionary power of the Court, but the same is to be applied with care and circumspection which is to be seen at the time of pronouncement of judgment regarding its relevance or the said document goes to the very fundamental of the suit. For ready reference, paragraph 49 of the said judgment is referred 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. 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
10 of 14 193] and Natha Singh v. Financial Commr., Taxation [(1976) 3 SCC 28 : AIR 1976 SC 1053] .)"
31) Subsequently, in the case of Wadi Vs. Amilal and Others, (2015) 1 SCC 677, the Hon'ble Apex Court while dealing with the provision of Order XLI Rule 27 of the CPC has reiterated the view taken by the Hon'ble Apex Court in the case of Union of India Vs. Ibrahim Uddin and Another (supra). The relevant observation of the said judgment is required to be made which is at paragraph 5 wherein it has been observed that the requirement of need is that of the appellate court bearing in mind that the interest of justice is paramount and if it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, clause (b) enable it to adopt that course. However, invocation of clause (b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the appellant to resort to it when on a consideration of the material or record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case. The relevant paragraph needs to refer herein:-
"5. Now it is clear that Rule 27 deals with production of additional evidence in the appellate court. The general principle incorporated in sub-rule (1) is that the parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate court to cure a lacuna or fill up a gap in a case. The exceptions to that principle are enumerated thereunder in clauses (a), (aa) and (b). We are concerned here with clause (b) which is an enabling provision. It says that if the
11 of 14 appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be examined. The requirement or need is that of the appellate court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, clause (b) enables it to adopt that course. Invocation of clause
(b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the appellant to resort to it when on a consideration of the material or record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case."
32) It is evident from the ration laid down by the Hon'ble Apex Court in paragraph 49 of the judgment passed in Union of India Vs. Ibrahim Uddin and Another (supra), it has been laid down therein that true test to consider the documents by the appellate court 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.
33) Adverting to the facts of the case, it appears that the plaintiff claims his right and title over the land in question on the basis of the purchase of the land in question by his vendor namely Bunilal, in whose favour the registered Power of Attorney was executed by Russel Fernandes. The aforesaid specific pleading although was made in the plaint, the same was rebutted by the defendant in the written statement taking the plea that the said Power of Attorney is a forged document. It, therefore, suggests that the said registered 12 of 14 Power of Attorney is the fundamental of the said suit and if the said Power of Attorney is said to be forged one, which is the finding recorded by the learned while dismissing the suit.
34) However, the said registered Power of Attorney could not have been filed. No application to that effect was said to be filed under clause (a) or no condition of clause (a) of Order XLI Rule 27 of the CPC, but rejecting the said application by the learned appellate court without taking into consideration the very import of the objection of Clause (b) of Order XLI Rule 27 of the CPC cannot be said to be proper, otherwise, the purpose to insert the conditions under Clause
(b) of the Order XLI Rule 27 of the CPC will become meaningless.
35) However, by the said finding this Court is not disapproving the order passed by the learned appellate court in entirety, rather, the learned Court has passed a justified order taking the petition filed under Order XLI Rule 27 of the CPC to be under Clause (aa) and no due diligence was shown. But while doing so, the learned appellate court has not taken into consideration the very import/object and intent of Clause (b) of Order XLI Rule 27 of the CPC as mandated by the Hon'ble Apex Court in the cases of Union of India Vs. Ibrahim Uddin and Another (supra) and Wadi Vs. Amilal and Others (supra).
36) Therefore, non-consideration regarding of provision of Clause
(b) under Order XLI Rule 27 of the CPC appears to be a lacuna committed on behalf of the appellate court. This Court while exercising the supervisory jurisdiction as conferred under Article 227 of the Constitution of India coupled with the power of superintendence is of the view that the Court exercising the power under Article 227 of the Constitution of India is also corrective jurisdiction.
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37) Further, the Constitution Bench of the Hon'ble Apex Court in the case of Radhe Shyam & Anr. vs. Chhabi Nath & Ors., reported in (2015) 5 SCC 423 has been pleased to hold that in the judicial proceeding the provision of Article 227 will only be invoked and under the power of Article 227 the High Court can exercise as a corrective writ jurisdiction forum, meaning thereby, if the High Court sitting under Article 227 of the Constitution of India comes to the conclusion that any error has been committed by the trial Court, the views can be substituted by the High Court sitting under Article 227 of the Constitution of India so that the order which has been passed and found to suffer from any illegality, the same can be substituted by passing a fresh order . It is, therefore, evident that if the order passed by the court is not with any reason, it could be corrected by the High Court, sitting under Article 227 of the Constitution of India under its corrective writ jurisdiction.
38) This Court following the aforesaid proposition and exercising the power of corrective jurisdiction is now correcting the order passed by the learned Court to the effect that the application filed under Order XLI Rule 27 of the CPC regarding consideration of Power of Attorney said to be registered by taken into consideration at the time of pronouncement of the judgment, by assigning reason either way.
39) The appellate court while doing so will not be prejudiced by any observations made by this Court.
40) Accordingly, the instant petition stands disposed of.
41) Pending Interlocutory Applications, if any, stand disposed of.
(Sujit Narayan Prasad, J.) Manoj/uploaded Cp.2 AFR 14 of 14