Gauhati High Court
Assam Hindu Mission Upper Nawprem vs Smt. Elaboris Tron on 21 August, 1998
Equivalent citations: AIR1999GAU39, AIR 1999 GAUHATI 39, (2003) 126 TAXMAN 267, (1999) 2 CURCC 197, (1999) 1 GAU LR 380
Author: N.S. Singh
Bench: N.S. Singh
ORDER N.S. Singh, J.
1. The order dated 2-7-1997 passed by the learned District Judge/Additional Deputy Commissioner, Shillong in Title Civil Appeal No. 2 (T) of 1992 is the subject-matter under challenge in this present Revision Petition under Rule 36A of the Rules for Administration of Justiee and Police in the Khasi and Jaintia Hills. 1937.
2. The fads of the case in a short compass are as follows :
The present appellant-petitioner as a plaintiff instituted a suit being Title Suit No. 45 (T) of 1985 in the Court of the Assistant to the Deputy Commissioner at Shillong as against the present main respondent-defendant and two pro forma defendants for a decree declaring that the plain-tiff appellant/Institution is the absolute owner of The suit land covered by Patta dated 19-1-1972 issued by Syiem of Mylliem Darbar and for mandatory and permanent injunction restraining the defendant-respondent, her workmen, agents or any other persons claiming on her behalf or through her to enter into the suit premises belonging to the 'plaintiff-lnstitution and restraining them to break the guard wall/retaining wall standing on the plaintiff-lnstitution compound covered by the said or to cause any disturbance or annoyance or nuisance to the plaintiff-Institution or its personnel in carrying out its own activities.
3. The trial Court framed as many as nine issues and one witness was examined from the plaintiff side and none from the side of the defendant-opposite party, and apart from it a local inspect ion was also conducted by the learned trial Court and after hearing the parties, the learned trial Court held that the plaintiff-Institu--tion had been in continuous possession of the suit land he lore and after the related High Court's order dated 4-9-1974. but in most of the other issues, the trial Court decided those issues against the plaintiff-appellant-Institution thus dismissing the suit vide judgment and order dated 20-8-92 passed in Title Suit No. 45 (T) of 1985.
4. Being dissatisfied with the said judgment and order of the trial Court, the plaintiff-appellant preferred an appeal in the Court of the District Judge/Additional Deputy Commissioner, Shillong and the same was registered as Title Civil Appeal No. 2 (T) of 1992. Thereafter, on subsequent transfer of the case the learned Additional Deputy Commissioner by his order dated 8-3-95 set aside (he decision of the learned trial Court in respect of the issues except Issue No. 5 and sent hack the case to the trial Court to try the suit and decide other issues afresh. Being aggrieved by the said order of 8-3-1995, the present appellant preferred a revision petition and the said revision petition was registered as Civil' Revision No. 11 (SH) of '1995; and in the mean-lime, the respondent-opposite parly also filed a separate revision petition No. 7 (SH) of 1996 for selling aside the order of the learned Additional-Deputy Commissioner and for restoration of the judgment and order dated 20-8-92 passed by the learned trial Court. There after, both the revision petitions were heard together and by a common judgment and order dated 12-3-1996, the learned single Judge of this Court held that the appellant-petitioner is not required to pay the enhanced court-fee and also set aside the order of remand of the ease to the trial Court, and further ordered that the first Appellate Court should re-hear the appeal and; at that stage on the prayer of the respondent-opposite party, the case was transferred to the file of the learned District Judge/Additional Deputy Commissioner. Shillong for appropriate orders except on Issue No. 5.
5. When the matter was taken up by the learned District Judge/Additional Deputy Commissioner. Shillong the appellant-petitioner filed an application under Order XIII. Rule 10 and Order XIJ Rule 27 (1) (aa) and (b) read with Section 151 CPC for admission of the following additional documentary evidence, as those documents/communications go to the very root of the case and the same would be of immense help/ assistance to the appellate Court to enable it to pronounce the judgment and for other substantial causes. Those documents are as follows:
(1) Order dated 9-12-1985 in MCR Case No. 15 (s) 85 under Section 145. Cr.P.C.in the Court of Shri S. Madinalta I.A.S. Additional District Magistrate, Additional District Magistrate. Shillong between the appellant and the opposite party Smt. Elaboris Tron for the same suit land whereby the learned Additional District Magis-trate ordered "the said Assam Hindu Mission is entitled to peaceful possession thereof until evicted therefrom in due course of law and forbid all persons from disturbing such possession until such eviction, if any".
(2) A note dated 23-1-1954 addressed to Hon'ble Syiem written in Khasi an English translation of which was provided, by Late Shri Barik Doloi Myntri, who was besides the first defendant in Title Suit No. 7 (T), 1961, concerning that 2170 sq.ft. land mentioned hereinbefore, and a sketch map signed by late Shri Bank Doloi Myntri, being an official of the Sytem or Mylliem, giving the area of land under settlement with the appellant, to which he was well conversant since the year 1928 at the time of issuing of patta by Late U. Kumin Manik Syiem to the Hindu Anath Ashram.
(3) letter No. IX/B/LP/57 dated 27-1-1934 from the then Syiem of Mylliem to the addresses of the Assistant Secretary Hindu Anath Ashram Maprem. Shillong which inter alia stales that the land to the Ashram was given by his predecessor and the Mission to lake necessary action to lake out a patta to regularise matters.
6. In the said application, the present appellant sought for permission of the first appellate Court so as to enable the appellant to adduce evidence for two more witnesses for proper appraisal of the case and to bring documents for ends of justice by showing reasons and causes for delay in producing the said documents before the first Appellate Court. However, the learned first Appellate Court rejected the petition of the appellant under the impugned order of 2-7-1997 passed in Title Civil Appeal No. 2 (T) of 1992.
7. Heard Mr. B.N. Dutta, learned Counsel for the petitioner at length and also perused the impugned orders as well as material available on records.
8. While deciding the related appeal, the learned first Appellate Court opined that the instant petition under Order XIII. Rule 10 and Order XL1, Rule 27 (1) (aa) and (b) read with Section 151, CPC particularly relates to Clause (1) (aa) and the same is relevant and requirement of this Clause (1) (aa) is that the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his/her knowledge or could not, after the exercise of due diligence be produced by him/her at the time when the decree appealed against was passed, or 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 as required under Clause (b) of Rule 27, and the first appellate Court further held thai the appellant's institution is generally managed and run by the members of the Managing Committee of the Management whose terms are always renewed and changed from time to lime, bui to say that the new management was not knowing of the documents is hypothetical and is unacceptable as the records of the institution are usually maintained and kept in the custody of the functionaries entrusted for the same. The learned first Appellate Court also opined thai nothing has been disclosed as in whose possession or custody those documents alleged to have been traeed out were kept and from whose custody and possession they were obtained. Over and above this applying the principle of law laid down by this Court rendered in a case between Saifur Rahman v. State of Assam reported in, (1984) 1 Gauhati LR (NOC) 20. the first Appellate Court was of the opinion lhal in allowing the party to open up a new case and then to adduce evidence on a new point is not within the purview of Order 41, Rule 27 (l)(aa)of the CPC and it was also of the view of the first Appellate Court that without amendment of the pleadings of the parties, the court could not allow a party to lake up a new case to adduce a fresh evidence in support of a new plea which is impermissible.
9. Now, this Court is to see and examine as to whether there is infirmities or illegalities in the impugned order of 2-7-1997 passed by the learned first Appellate Court in Title Appeal No. 2 (T) of 1992. It is an admitted position that Issue No. 4 was framed by the Trial Court for ascertaining as to whether who got the valid right, title and interest over the suit land. The plaintiff produced one witness who was examined and none from the side of the defendant-opposite party was examined as a witness though a local inspection was conducted by the learned Assistant to the Deputy Commissioner. In view of the above position, the said Issue No. 4 relates to the claim of the parties with regard lo the right, title and interest over the suit land. Highlighting the factum of loss track of those records namely those related documents to be produced as additional evidence, the plaintiff-appellant contended that it being a democratic institution the same is represented by different office bearers from lime to time and but for the accidental revelation those documents/communications might not have been looked after and the present Secretary of the appellant-Mission who together with the Joint Secretary of the Mission ransacked all records to find out if those available documentds/communications could be traced out and there were surfaced after hard and laborious search and those documents/communications, notwithstanding the exercise of due diligence were not within the knowledge of the appellant and could not after exercise of due diligence be produced by the appellant when the judgment und order appealed at was passed and lastly in exercise of due diligence, the same could be produced and for proving the same, two additional witnesses were reflected in the related petition whose statements are required and essential to meet the ends of justice. In my considered view, those documents so far produced by the appellant before the first Appellate Court are public documents and the same are relevant for the purpose of just determi-nation of the real points in controversy between the parties in respect of the related Issue No, 4.1 am quite in agreement with the decision of this . Court rendered in Saitur Rahman's case (1984 (1) Gauhati LR NOC 20) (supra). But this decision is not applicable in the instant-case inasmuch as the present appellant herein did/docs not take up any new case with the new plea as there is a pleading of the parties with regard to their title and ownership over the suit land for which the related Issue No. 4 namely "who has got the valid right, title and interest over the suit land?" was framed by the learned Trial Court.
10. It is also well settled that when additional evidence is admitted, the other side should be given an opportunity to review it. It is also true that the first appellate Court should exercise the power conferred upon it under Order 41, Rule 27 CPC cautiously and sparingly and proper reason should be recorded and minuted, and when additional evidence came into existence some time after the disposal of the suit, the appellate Court would be justified in admitting even at the appellate stage if the Court thinks that, but for it there would remain some inherent lacuna before the Court. In my considered view, there is substantial cause and the first Appellate Court require those documents to be produced and those two witnesses to be examined so as to enable the first appellate Court to determine the real points in controversy between the parties and to pronounce its judgment to meet the ends of justice.
11. As discussed above, those documents so far the appellant-plaintiff sought for producing the same as additional evidence before the Appellate Court are very important and essential for determination of the real points in controversy between the parties, particularly in determining the related Issue No. 4 as mentioned above.
12. Universally accepted maxim, rather, principle of law is that, "justice must not only be done but must also appear to have been done". This Rule has received, wide recognition in several decisions of the Apex Court. One of the decisions of the Apex Court finds its place in paragraph 16 of the judgment relating to a case between Ashok Kumar Yadav v. State of Haryana reported in AIR 1987 SC 454: 1986 Lab IC 1417. This Court also require the first Appellate Court to bear in his judicial mind of the above principle of law while deciding mere Issue No. 4 and while taking into consideration of the documents so far produced by the appellant-plaintiff before it and the statement of those witnesses in arriving at a final decision of the case.
13. For the reasons, observations and directions made above, the first Appellate Court is directed to allow the appellant-plaintiff to produce the abovementioned additional evidence of both oral and documentary before it to meet the ends of Justice.
14. In the result, this revision petition is accordingly disposed of, thus allowing the same and setting aside the impugned order dated 2-7-97 passed by the learned District Judge/ADC Shillong in Title Civil Appeal No. 2 (T) of 1992, but no cost.