Tripura High Court
Smt. Rakhi Debbarma vs Smt. Sanghamitra Roy on 5 September, 2017
Author: T. Vaiphei
Bench: T. Vaiphei
THE HIGH COURT OF TRIPURA
AGARTALA
I.A. NO. 375 OF 2017 IN
RFA NO.22 OF 2016
Smt. Rakhi Debbarma,
W/O Sri Dipak Karmakar,
Resident of Jogendranagar
Vidyasagar Road, Agartala P.S.
East Agartala, District - Tripura West.
.... Applicant.
-: Versus :-
1. Smt. Sanghamitra Roy,
W/O Sri Pradip Roy,
Resident of Santipara,
P.O. - Agartala, P.S. - East Agartala,
District - Tripura West,
PIN - 799001.
2. Sri Pradip Roy,
S/O. Lt. Amarchandra Roy,
Resident of Santipara,
P.O. - Agartala, P.S. - East Agartala,
District - Tripura West,
PIN - 799001.
3. Smt. Bandana Roy,
W/O. Sri Dilip Kumar Roy,
Resident of Palace Compound
North Gate, P.S. - East Agartala,
District - Tripura West,
PIN - 799001.
..... Respondents.
BEFORE THE HON'BLE THE CHIEF JUSTICE MR. T. VAIPHEI Counsel for the applicant : Mr. D. Purkayastha, Advocate.
Mr. D.R. Choudhury, Advocate.
Mr. D. Debnath, Advocate.
Mr. S. Sarkar, Advocate.
Counsel for the respondents : Mr. A.K. Bhowmik, Sr. Advocate.
Mr. R. Datta, Advocate.
Mr. P. Saha, Advocate.
Mr. I. Banik, Advocate.
Mr. D. Kar, Advocate.
Date of hearing : 10-8-2017.
Date of delivery of Judgment : 5-09-2017
& Order
JUDGMENT & ORDER
This is an application under Order 41, Rule 27, Code of Civil Procedure seeking leave to adduce three additional documents, namely, (i) a I.A. NO. 375 OF 2017 IN RFA NO.22 OF 2016 Page 1 of 14 certified true copy of order dated 3-6-2015 passed in Crl. Petn. No. 7/2015;
(ii) a certified copy of the charge sheet (final report) dated 21-12-2016 submitted by the SI of the police (CID) and (iii) a certified copy of the order dated 9- 12-2016 in MR Case No. 261/16 along with the typed copy.
2. Both Mr. D. Purkayashtha, the learned counsel for the applicant, and Mr. A.K. Bhowmik, the learned senior counsel for the respondents, were heard at length.
3. The applicant is the plaintiff in the connected Title Suit No. 94 of 2011, which was instituted before the learned Civil Judge, Senior Division, Court No. 2, West Tripura seeking declaration and cancellation of the registered sale deed, which was alleged to have been executed in favor of the defendant/respondent No. 1 under coercion and pressure without complying with Section 53 of the Transfer of Property Act and without consideration money. It is the contention of the learned counsel for the applicant that neither she nor her brother-in-law dared lodge complaint against the respondents for sometime out of fear. Ultimately, a complaint was lodged with the Officer-in-Charge of East Agartala PS on 15-4-2011 against the respondents. The police did not take action for a long time even after the order of the Judicial Magistrate, 1st Class, Agartala. This Court finally intervened and passed the order dated 9-4-2015 in Crl. Petn. No. 7/2015 directing further investigation of the case by the CID. After conducting the voice test concerning the conversation and threats made by the respondent No. 2 upon her father-in-law including the demand of money made by him, the police found proof of the allegations of creation of the sale deed in respect of the suit land by coercion, pressure and threat and of non-payment of consideration money and accordingly submitted the charge sheet against the respondent No. 2 U/s 386/34 IPC and Section 27, Arms Act in addition to the charge sheet submitted earlier by the police for the offence of Section 506 IPC. According to the learned counsel, the said two documents are vital documents for proper adjudication of the case of I.A. NO.1 (375) OF 2017 IN RFA NO.22 OF 2016 Page 2 of 14 the applicant. It is contended by the learned counsel for the applicant that these documents could not be filed at the time of trial of the original suit as they were not available though the FIR and other documents had been filed before the trial court earlier. At this stage, it is to be noted that the suit instituted by the applicant was dismissed by the trial court on 30-7-2016. The certified copy of the order dated 3-6-2015 of this Court was delivered to the applicant on 4-6-2015 i.e. about one year after the suit was disposed of by the trial court. However, the certified copy of the charge sheet came into existence only on or after 21-12-2016 i.e. after the impugned judgment was dismissed by the trial court. So is the order dated 9-12-2016. In other words, contends the learned counsel for the applicant, the charge sheet and mutation order are document which came into existence after the dismissal of the suit, and the applicant should be allowed to adduce these documents as additional evidence. Order 41, Rule 27, CPC is in the following terms:
―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, I.A. NO.1 (375) OF 2017 IN RFA NO.22 OF 2016 Page 3 of 14 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.‖
4. Order 41, Rule 27 enumerates the circumstances wherein an appellate court may admit additional evidence, whether oral or documentary, in appeal. They are as under:
(i) where the lower court has improperly refused to admit evidence which ought to have been admitted; or
(ii) where such additional evidence was not within the knowledge of the party or could not, after exercise of due diligence, be produced by him at the time when the lower court passed the decree or made the order; or
(iii) where the appellate court itself requires such evidence either (a) to enable it to pronounce judgment; or
(iv) for any other substantial cause.
5. General rule as to production of evidence has been laid down in the opening part of sub-rule (1) of Rule 27, which says that the parties to an appeal shall not be entitled to produce additional evidence in the appellate court. Additional evidence in an appellate court, however, may be allowed to be produced if one of the conditions laid down in clauses (a), (aa) or (b) of Rule 27(1) is satisfied, namely,─
(i) It must be shown that the evidence was not within his knowledge or could not be obtained by him in spite of due diligence at the stage of trial.
(ii) The evidence must be such which would probably, but not decisively, have the effect on the result of the suit. I.A. NO.1 (375) OF 2017 IN RFA NO.22 OF 2016 Page 4 of 14
(iii) The evidence is relevant and credible, though it need not incontrovertible.
6. On careful reading of the application of the applicant, there is no whisper of statement that the order dated 3-6-2015 could not be produced by her in spite of due diligence at the time when the impugned judgment was passed. Obviously, the document was obviously within her knowledge as she was the petitioner therein. Therefore, the condition for leave to file the document in question is not fulfilled by her. Her application in this behalf is rejected.
7. As for the remaining two documents, which came into existence subsequently, the question to be determined is whether the three conditions are satisfied. In my opinion, the documents in question naturally could not have been produced by the petitioner at or before the impugned judgment was passed by the trial as they came into existence only after the disposal of the suit and are thus related to subsequent events. The basic rule of litigation is that the rights of the parties must be determined on the basis of the date of filing of the suit and a court of law would not take into account events happening after the institution of the suit. However, it is equally well-settled that in appropriate cases and in exceptional circumstances, a court may depart from this rule and for doing full and complete justice or to shorten litigation, it may take into consideration subsequent events. For that purpose, an appellate court may also allow additional evidence in the form of documentary or oral evidence. This is what Apex Court said in Surinder Kumar and ors. v. Gian Chand and ors., AIR 1957 SC 875:
―6. ...The powers of this Court in regard to the admission of additional evidence are in no way less than that of the Privy Council. Moreover in deciding the appeal we have to take the circumstances as they are at the time when the appeal is being decided and a judgment in rem having been passed in I.A. NO.1 (375) OF 2017 IN RFA NO.22 OF 2016 Page 5 of 14 favour of the appellants it is necessary to take that additional fact into consideration. It was so held by the Federal Court in Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, [1940] F.C.R. 84, where Gwyer C.J. quoted with approval the following observation of Chief Justice Hughes in Patterson v. State of Alabama (1934) 294 U.S. 600, 607 (c) :
"We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered."
Varadachari J. was of the opinion that the hearing of an appeal is under the processual law of this country in the nature of a rehearing and therefore in moulding the relief to be granted in appeal an appellate court is entitled to take into account even facts and events which have come into existence since the decree appealed from was passed. He referred to many Indian cases and to the practice of the Judicial Committee of the Privy Council and to some English cases.
7. In our opinion the fact of the grant of the probate which has supervened since the decision under appeal was given and which has been placed before this court must be taken into consideration in deciding the appeal. In that event the infirmity in the appellant's case due to the want of proper attestation of the will under s. 63(c) of the Indian Succession Act would be removed. Because of the view we have taken the other objection raised by the respondents becomes wholly I.A. NO.1 (375) OF 2017 IN RFA NO.22 OF 2016 Page 6 of 14 inefficacious. The finding of the High Court on this point is therefore reversed.‖
8. The above legal position was reiterated by the three-Judge Bench of the Apex Court in Pasupuleti Venkateswarlu v. The Motor & General Traders, (1975) 1 SCC 770 in the following manner:
3. Two submissions were advanced by Sri K.S. Ramamurthy to salvage his client's case. He argued that it was illegal for the High Court to have taken cognisance of subsequent events, disastrous as they proved to be. Secondly, he urged that once the High Court held -- as it did -- that the appellate tribunal acted illegally in remitting the whole case to the Rent Controller, it could not go further to dismiss his whole eviction proceedings, a misfortune heavier than would have been, had he not moved the High Court at all.
4. We feel the submissions devoid of substance. First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice
-- subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to I.A. NO.1 (375) OF 2017 IN RFA NO.22 OF 2016 Page 7 of 14 confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out, a material bearing on the right to evict, in view of the inhibition written into Section 10(3)(iii) itself. We are not disposed to disturb this approach in law or finding of fact.
5. The law we have set out is of ancient vintage. We will merely refer to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri1 which is a leading case on the point. Gwyer, C.J., in the above case, referred to the rule adopted by the Supreme Court of the United States in Patterson v. State of Alabama2:
―We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.‖ 1 AIR 1940 FC 5.
2 294 US 600, 607.
I.A. NO.1 (375) OF 2017 IN RFA NO.22 OF 2016 Page 8 of 14 and said that that view of the Court's powers was reaffirmed once again in the then recent case of Minnesota v. National Tea Co.3. Sulaiman, J., in the same case4 relied on English cases and took the view that an appeal is by way of a re- hearing and the Court may make such order as the Judge of the first instance could have made if the case had been heard by him at the date on which the appeal was heard (emphasis, ours). Varadachariar, J. dealt with the same point a little more comprehensively. We may content ourselves with excerpting one passage which brings out the point luminously (at p. 103):
―It is also on the theory of an appeal being in the nature of a re-hearing that the courts in this country have in numerous cases recognized that in moulding the relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against.‖
9. The Apex Court again in Jai Prakash Gupta (Dead) through LRS. v. Riyaz Ahamad and another, (2009) 10 SCC 197 observed:
"20. It is true that a suit or an original proceeding is to be tried in all its stages on the cause of action as it existed on the date of its commencement. The only exception to this rule is that a court may take notice of events, which have happened since the institution of the suit or the original proceeding and grant relief to the parties on the basis of the altered conditions, (sic which) is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate or that it is necessary to base the decision of 3 309 US 551, 555.
4 Lachmeshhwar Prasad Shukul v. Keshwar Lal Chaudhuri (supra) I.A. NO.1 (375) OF 2017 IN RFA NO.22 OF 2016 Page 9 of 14 the court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. (See Rai Charan Mandal v. Biswanath Mandal1) This was the view expressed by Sir Ashutosh Mookerjee, J. (as His Lordship then was) on this question when subsequent developments should be taken into consideration by the court during the pendency of a proceeding or of a suit or even at the appellate stage.
21. The same view has been expressed in a yet later decision of the Calcutta High Court to the effect that where it is shown that the original relief claimed has, by reason of subsequent change of circumstances become inappropriate or that it is necessary to base the decision of the court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. (See Nuri Miah v. Ambica Singh2)
22. Again, in Pratap Rai Tanwani v. Uttam Chand3 this Court also held that subsequent developments can be taken into consideration to afford relief to the parties, provided only when such developments had a material impact on those rights and obligations.
23. Similar was the view expressed in Ramesh Kumar v. Kesho Ram4 where this Court observed as follows:
―6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on 1 AIR 1915 Cal 103 2 AIR 1917 Cal 716 3 (2004) 8 SCC 490 4 1992 Supp (2) 623 I.A. NO.1 (375) OF 2017 IN RFA NO.22 OF 2016 Page 10 of 14 aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief.‖ (emphasis supplied)
24. It also reminds us of a celebrated judgment of a Full Bench decision of the Nagpur High Court in Chhote Khan v. Mohd. Obedulla Khan5 in which the view of the Court to take note of the subsequent developments specially at the appellate stage was taken up for consideration. Hidayatullah, J. (as His Lordship then was) held as under:
―7. [On a review of judicial opinion,] that an action must be tried in all its stages on the cause of action as it existed at the commencement of the action.... No doubt, courts 'can' and sometimes 'must' take notice of subsequent events, but that is done merely 'inter partes' to shorten litigation but not to give to a defendant an advantage because a third party has acquired the right ... of the plaintiff.‖ (emphasis supplied)
25. In view of the discussions made hereinabove, it is therefore a settled proposition of law that subsequent developments of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court, even at any stage of the proceeding, is not precluded from taking a cautious cognizance of the subsequent developments of fact and law to mould the relief.‖ 5 AIR 1953 Nag 361 I.A. NO.1 (375) OF 2017 IN RFA NO.22 OF 2016 Page 11 of 14
10. The net effect of the decisions extracted in the foregoing is that a civil court, in appropriate cases and in exceptional circumstances, may take into consideration subsequent events. For this purpose, an appellate court may also allow additional evidence in the form of documentary evidence or oral evidence. In the instant case, the applicant, however, is not yet out of the woods and has still to cross another hurdle, namely, whether additional evidence can be allowed to be admitted without pleadings to that effect. This issue came up for consideration before the Apex Court in Syed & Co. and others v. State of J & K and others, 1995 Supp(4) SCC 422 and it was held therein:
"7. In opposition to this, the learned counsel for the respondent would urge by looking at the entire pleadings of the State before the prescribed authority, it can be seen nowhere, it has been stated as to what exactly was the basis for claiming the price of timber extracted by the respondent. Without specific pleadings in that regard, evidence could not be led in since it is a settled principle of law that no amount of evidence can be looked unless there is a pleading.
8. Therefore, without amendment of the pleadings merely trying to lead evidence is not permissible. The High Court was right in holding so. In addition on the point of limitation it has held correctly.
9. As regards the Civil Appeal No. 543 of 1985, the contention of the appellant Syed and Company is as under:
No doubt, under Section 52 of the Act, the prescribed authority could not have drawn up a decree. Nevertheless while setting aside this order, the High Court should have directed that it was open to the party to recover the same in accordance with law. This Court may give such directions.
I.A. NO.1 (375) OF 2017 IN RFA NO.22 OF 2016 Page 12 of 14
10. We have carefully considered the above submissions.
We are of the view that no exception could be taken to the judgment of the High Court. No doubt a prayer was made before the prescribed authority by the State requesting that a decree might be granted for the amount of price of timber extracted by the party. But that prayer alone was not enough. The pleadings ought to have been there as to what exactly was the basis of the prayer. We are afraid that the entire case of the State before the prescribed authority proceeded only with reference to royalty and interest thereof, but not with reference to the price of the timber. It is true that in Malik Abdul Ahmad Shah Jalil Ahmad Akhtar2 it has been held that the prescribed authority under Section 52 is empowered to determine the price of timber extracted. The State at that stage, should have amended the pleading and incorporated the basis for the claim for the price of timber. But for reasons best known the State merely took out an application under Order 41 Rule 27 to lead in evidence. Of course, evidence could have been allowed if there were pleadings to that effect. In this case, there was none. It is settled law that no evidence can be let in without the pleading. The High Court was fully justified in rejecting the application.‖ (Italics mine)
11. Thus, it is obvious that without specific pleadings in that regard, evidence could not be led in since it is a settled principle of law that no amount of evidence can be looked unless there is a pleading. In the instant case, apart from the pleadings made in this application, the foundational pleadings are not there at this stage. True, the additional evidence sought to be adduced are in connection with the subsequent events, which were obviously not there at the time of disposal of the suit. The essential facts 2 AIR 1982 J & K 16 I.A. NO.1 (375) OF 2017 IN RFA NO.22 OF 2016 Page 13 of 14 constituting the subsequent events for which additional evidence are sought to be led in are, no doubt, pleaded in paragraph 4, 5 and 6 of this application, but they cannot take the place of pleadings in the plaint. In other words, the averments in this application for the purpose of allowing leave to adduce additional evidence cannot be a substitute for pleadings on the plaint, which can be done only by way of amending the plaint under Order 6, Rule 17 Civil PC. But no attempt is made even now by the applicant to amend the plaint to incorporate the relevant subsequent pleadings for which additional evidence is sought to be adduced. In other words, no evidence can be let in without any pleading. Independently of the pleadings in the plaint, this Court cannot take into consideration such evidence unless there is a pleading to that effect in the plaint. In the view that I have taken, there is no sufficient ground for granting leave to the applicant to adduce additional evidence.
12. The result of the foregoing discussion is that there is no merit in this application, which is hereby dismissed. Let the appeal be heard on merit on the basis of the available materials on record as and when the business of the Court permits. No cost.
CHIEF JUSTICE I.A. NO.1 (375) OF 2017 IN RFA NO.22 OF 2016 Page 14 of 14