Andhra HC (Pre-Telangana)
Nafeez Begum vs Salla Jothi And Ors. on 20 January, 2005
Equivalent citations: 2005(2)ALD815, 2005(3)ALT668
ORDER G. Yethirajulu, J.
1. This revision petition is filed by the plaintiff in O.S.No. 96 of 2002 on the file of the Junior Civil Judge, Nirmal in I.A. No. 992 of 2004 in C.M.A.No. 8 of 2002 dated 23-7-2004.
2. The revision petitioner filed O.S.No. 96 of 2002 for perpetual injunction to restrain the respondents from making constructions in a site situated in front of his site abutting the road. Along, with the suit, the plaintiff filed I.A. No. 258 of 2002 seeking temporary injunction. On 6-8-2002 the Trial Court granted temporary injunction. Against the said order, the respondents herein, who are the defendants in the suit, filed C.M.A. No. 8 of 2002 on the file of the Senior Civil Judge, Nirmal. During the pendency of the C.M.A., the petitioner herein filed I.A. No. 992 of 2004 under Order 41 Rule 27 read with Section 151 C.P.C. praying the Court to receive a "certified copy of a map of land records" as additional evidence. The Senior Civil Judge dismissed the said application on 23-7-2004 holding that the conditions prescribed under Order 41 Rule 27 are not satisfied, as such the document cannot be received as additional evidence. Hence, this revision petition.
3. The learned Counsel for the petitioner submitted that the suit is still pending and the C.M.A. was preferred only against the interlocutory order passed by the Trial Court. Since the petitioner is not precluded from adducing oral or documentary evidence in the suit, he is entitled to file the above document in the CMA also for the purpose of consideration by the Appellate Court. Therefore, the Lower Court was wrong in dismissing the application.
4. It is an undisputed fact that the petitioner sought to file a certified copy of the land record map. Though it was obtained in September 2002 i.e., few days after filing of the appeal, it was filed before the Appellate Court only in the year 2004. The learned Counsel for the respondents submits that the petitioner having obtained the certified copy in the year 2002, did not choose to file it before the Appellate Court till 2004 and failed to give any reasons as to why it could not be filed before the Court at the earliest time. He further submitted that the petitioner resorted to make the application when the Appellate Court heard the arguments in part and posted the matter for further arguments.
5. The Appellate Court while considering the merits of the application invoked the conditions mentioned in Rule 27 of Order 41 C.P.C.
6. Order 41 Rule 27 C.P.C. reads as follows:
Order 41, Appeals from original decrees:
..........
Rule 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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
7. As per Rule 27(1)(b), the Appellate Court may allow the party to produce any document or examine any witness if it is required for pronouncement of judgment or for any other substantial cause, by recording the reasons for the same.
8. In this regard, it may be appropriate to refer to the law laid down by the Courts.
9. In K. Venkataramaiah v. Seetharama Reddy, , the Supreme Court held as follows:
The object of Rule 27(2) clearly is to keep a clear record of what weighed with the Appellate Court in allowing the additional evidence to be produced-whether this was done on the ground (i) that the Court appealed from had refused to admit evidence which ought to have been admitted, or (ii) allowed it to enable to pronounce judgment in the appeal or (iii) It allowed this for any other substantial cause. Where a further appeal lies from the decision of the Appellate Court such recording of the reasons is necessary and useful also to the Court of further appeal for deciding whether the discretion under the rule has been judicially exercised by the Court below. The omission to record the reason must, therefore, be treated as a serious defect. Even so, the provision is not mandatory and the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission. It is true that the word 'shall' is used in Rule 27(2); but that by itself does not make it mandatory. (Para 13) Under Rule 27(1), the Appellate Court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of record as it is, and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under Rule 27(1)(b) of the Code. (Para 16)
10. In Natha Singh v. Finl. Commr. Taxation, Punj, , the Supreme Court held as follows:
The discretion given to the Appellate Court to receive and admit additional evidence under Order 41, Rule 27 is not an arbitrary one but is a judicial one circumscribed by the limitations specified in that provision. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence, so brought on the record will have to be ignored. The true test to be applied in dealing with applications for additional evidence 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. (Para 10)
11. In Syed Abdul Khader v. Rami Reddy, , the Supreme Court while considering the scope of Order 41 Rule 27 C.P.C. held as follows:
It is well established that Order 41, Rule 27, C.P.C. does not confer a right on the party to produce additional evidence. But if the Court hearing the action requires any document so as to enable it to pronounce judgment, it has the jurisdiction to permit additional evidence to be produced. The High Court has given cogent reasons why it felt impelled to permit production of registered sale deeds so as to enable it to pronounce judgment in the matter. If the High Court considered the production of registered sale deeds essential so as to enable it to pronounce judgment, there is no reason why the Supreme Court should interfere with the discretionary power properly exercised by the High Court in the interest of justice. Even otherwise, the High Court was justified in permitting additional evidence to be produced when it consisted of registered sale deeds. Such additional evidence has to be read as part of the record. (Para 21)
12. In Shiv Chander Kapoor v. Amar Bose, , no application was filed for adducing additional evidence in any of the Courts up to the High Court. After conclusion of the arguments before the Supreme Court and when the matter was reserved for judgment, the respondent filed an application under Order 41 Rule 27 read with Section 151 C.P.C. for admitting additional evidence. It has been stated in the application that the evidence could not be produced in the Courts below since the objections were not listed for investigation by the Courts. The Supreme Court while rejecting the application observed that no cogent reason was found to permit to let in any additional evidence when no attempt to produce the additional evidence was made in any of the Courts below up to the High Court or even in the Supreme Court till the conclusion of the hearing of the appeal, hence the appeal is liable to be rejected.
13. In Koyappathodi M. Ayisha Umma v. State of Kerala, , the Supreme Court noticed that though the evidence regarding the value of a land was available with the appellant, he did not adduce evidence before the forums below. It was not the case that the appellant was prevented to adduce evidence in this behalf. The Supreme Court therefore held that the order of the High Court remanding the matter for adducing fresh evidence under Order 41 Rule 27 CPC cannot be made, when evidence though available was not adduced.
14. In Jaipur Development Authority v. Kailashwati Devi, , the Supreme Court held as follows:
Order 41, Rule 27(1)(aa) mentions the conditions which must be complied with by the party producing the additional evidence, namely, 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" in the Trial Court. It is not one of the conditions that the party seeking to introduce "additional" evidence must have also been one who has led some evidence in the Trial Court. Such a view amounts to introducing an additional condition not contemplated by the sub-rule. No distinction was intended by the sub-rule between a party who has produced some evidence in the Trial Court and one who has adduced no evidence in the Trial Court. All that is required is that the conditions mentioned in the body of the sub-rule must be proved to exist. It is not, therefore, permissible to restrict the sub-clause (aa) for the benefit of only those who have adduced some evidence in the Trial Court. (Paras 6 and 7)
15. In Mahavir Singh v. Naresh Chandra, AIR 2001 SC 134, the Supreme Court held as follows:
Section 107, CPC enables an Appellate Court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order XL1 Rule 27 CPC. The Court is not, however, bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the Court, which is, of course, to be exercised judiciously and sparingly. Order XL1 Rule 27 CPC envisages certain circumstances when additional evidence can be adduced. They are: (i) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (ii) 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 (iii) 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 expression "to enable it to pronounce judgment" contemplates a situation when the Appellate Court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of Court delivering it. It is only a lacuna in the evidence that will empower the Court to admit additional evidence. But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. The words "or for any other substantial cause" must be read with the word "requires", which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule would apply. (Para 5)
16. The learned Counsel for the respondents while opposing the revision petition drew the attention of this Court to a judgment of the Supreme Court in N. Kamalam v. Ayyasamy, , wherein the Supreme Court while considering the scope of Order 41 Rule 27 C.P.C. held that the provisions of Rule 27 are not designed to help the parties to patch up weak points and make up for omissions earlier made. The jurisdiction of the Appellate Court is restricted to permitting such additional evidence as would enable it to pronounce the judgment.
17. The learned Counsel for the revision petitioner also drew the attention of this Court to a judgment of the Supreme Court in Jayaramdas and Sons v. Mirza Rafatullah Baig and Ors., 2004 (2) CCC 81 (SC), wherein the Supreme Court observed that regarding the production of certified copies of public documents, the appellants would not ordinarily suspect or doubt the documents where the certified copies of public documents were secured from the Public Officer having the custody of such public documents. The Supreme Court further observed that the application for additional evidence, whether oral or documentary, is not to be admitted in Appellate Court unless a case for admission thereof was made out. The documents already on record found at variance with certified copies sought to be placed and documents found would have material bearing on crucial issue arising for decision. The Supreme Court ultimately held that the ends of justice demanded the additional evidence to be allowed and accordingly set aside the judgments of the first Appellate Court and the High Court and remanded the matter to the first Appellate Court to decide appeal afresh after permitting production of documents by additional evidence.
18. The Supreme Court laid down the above law where the regular appeals were preferred against the judgments and decrees of Trial Courts. As laid down by the Supreme Court, Order 41 Rule 27 C.P.C. is not imposing a total bar on the Appellate Court from receiving additional evidence, but a restriction has been imposed to consider whether the additional evidence is required to pronounce the judgment or for any other substantial cause. The Apex Court made the above observation in an appeal preferred under Order 41 and that is not the case in a civil miscellaneous appeal. The present appeal was filed under Order 43 C.P.C. The provisions of Order 41 are applicable only to the extent required in respect of the appeals filed under Order 43 C.P.C. The above rule may be applied only to the extent required in a civil miscellaneous appeal filed against an interlocutory order passed by the Trial Court in a pending suit. The principles laid down by the Supreme Court are not strictly applicable to the matters where the additional evidence is sought to be adduced in miscellaneous appeals.
19. In the present case, the learned Senior Civil Judge while invoking Order 41 Rule 27 C.P.C. applied the standard that is required to be applied in regular appeals. Since the C.M.A. pending before the said Court is only against an interlocutory order during the pendency of the main suit, the Court is not required to apply that standard as is required under Order 41 C.P.C. and the Court has every liberty to exercise its inherent power under Section 151 C.P.C. by taking into consideration the facts and circumstances of that particular case. The learned Senior Civil Judge having observed that the petitioner sought to produce a public document as an additional evidence ought to have taken a liberal view by entertaining the said application and considering its relevancy while weighing the merits of the matter and ought to have passed appropriate orders after taking into consideration the contents of the said document. Since the documents in the interlocutory application would be marked by consent of the respective parties, their relevancy and admissibility need not necessarily be considered at this stage and they would be considered during the trial while marking in the suit through the concerned witnesses.
20. In the result, the revision petition is allowed. The order of the Senior Civil Judge, Nirmal dated 23-7-2004 in I.A. No. 992 of 2004 in CMA No. 8 of 2002 is set aside. The Senior Civil Judge, Nirmal is directed to receive the document, consider its relevancy in the matter and pass appropriate orders in the appeal according to law.