Gauhati High Court
Balendra Basumatary And Anr vs Smt. Jyotshna Rani Das And Anr on 18 February, 2019
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/4
GAHC010025372015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 501/2015
1:BALENDRA BASUMATARY and ANR
S/O LT. MATIA RAM BASUMATARY
2: SMT. MANJU BASUMATARY
W/O SRI BALENDRA BASUMATARY BOTH ARE RESIDENTS OF VILL-
KAMARKUCHI
P.S. KHETRI
PRESENTLY RESIDING AT JAPORIGOG
SILPOTA ROAD
P.O. and P.S. DISPUR
HOUSE NO. 3
GUWAHATI - 781005
DIST. KAMRUP ASSA
VERSUS
1:SMT. JYOTSHNA RANI DAS and ANR
W/O SRI PAWAN KR. DAS R/OVILL- KAMARKUCHI P.S. KHETRI, MOUZA-
PANBARI DIST. KAMRUP, ASSAM.
2:SRI UTTAR DEURI
S/O LT. DHAR DEURI VILL- KAMARKUCHI
P.S. KHETRI MOUZA- PANBARI DIST. KAMRUP
ASSAM
Advocate for the Petitioner : MR.H K DEKA
Advocate for the Respondent : MR.P J SAIKIA R-2
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
ORDER
Date : 18-02-2019 Page No.# 2/4 Heard Mr. B.D. Deka, learned counsel for the petitioner. I have also heard Mr. B.C. Talukdar, learned counsel appearing for the respondent No. 1. Remaining respondents have not appeared despite service of notice.
2. In this revision petition, the order dated 20-08-2015 passed by the learned District Judge, Kamrup at Guwahati in Misc. (J) Case No. 39/2015 arising out of Title Appeal No. 11/2014 has been put under challenge.
3. By the impugned order dated 20-08-2015, the learned first appellate court had rejected the application filed by the petitioner/ appellant under Order XLI Rule 27 CPC seeking leave to adduce additional evidence. By referring to the observation made in the impugned order dated 20-08-2015, Mr. Deka submits that the Title Appeal No. 11/2014 is yet to be taken up for final hearing and therefore, in view of the law laid down by the Hon'ble Supreme Court of India in the case of Union of India Vs. Ibrahim Uddin & Anr. reported in (2012) 8 SCC 148, the learned lower appellate court had committed manifest illegality in rejecting the application filed by the petitioner at an premature stage, i.e. before the commencement of the final hearing of the appeal on merit. Mr. Deka, therefore, submits that on such count alone, the order dated 20-08-2015 is liable to set aside by this Court.
4. Mr. Talukdar, learned counsel for the respondent No. 1, on the other hand, contends that the prayer for adducing additional evidence is devoid of any merit and therefore, the learned court below has rightly rejected the same. Mr. Talukdar has, however, fairly conceded that in view of the decision of the Supreme Court in the case of Ibrahim Uddin (Supra) the consideration of the application filed under Order XLI Rule 27 CPC was premature. Therefore, reserving the right of his client to take all objections at the stage of hearing of the application Page No.# 3/4 filed under Order XLI Rule 27 CPC, Mr. Talukdar submits that he would have no objection, if the matter is remanded back by setting aside the impugned order.
5. While dealing with the question as to the stage in which an application under Order XLI Rule 27 CPC is to be considered, the Hon'ble Supreme Court had made the following observation in the case of Ibrahim Uddin (Supra) in paragraph 49, which is quoted herein below:
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 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."
6. A reading of the observations made by the Hon'ble Apex Court leaves no room for doubt that the application filed under Order XLI Rule 27 CPC is required to be taken up by the learned first appellate court at the time of hearing of the appeal on merit. Therefore, the learned lower appellate court was not correct in disposing of the said application by order dated 20-08-2015 even before the appeal was taken up for hearing on merit.
In view of the above, the impugned order dated 20-08-2015 is held to be unsustainable in the eye of law. The same is, accordingly, set aside.
The Misc. (J) Case No. 39/2015 is restored to its original file. The learned lower appellate court to consider the said application, in the light of the law laid down by the Hon'ble Supreme Court in the case of Ibrahim Uddin (Supra), at the time of final hearing of the appeal, after hearing the arguments from both parties.
Page No.# 4/4 With the above observation, this revision petition stands allowed.
JUDGE GS Comparing Assistant