Gujarat High Court
Balvantbhai Hirabhai Patel vs Sushilaben Naranbhai Patel Wd/O ... on 25 September, 2023
NEUTRAL CITATION
C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14995 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BALVANTBHAI HIRABHAI PATEL
Versus
SUSHILABEN NARANBHAI PATEL WD/O HIRABHAI CHHANABHAI PATEL
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Appearance:
MR RD DAVE(264) for the Petitioner(s) No. 1
MR JAYPRAKASH UMOT(3581) for the Respondent(s) No. 2
MR SAURABH J MEHTA(2170) for the Respondent(s) No. 4
MR.PARTH CONTRACTOR(7150) for the Respondent(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 25/09/2023
CAV JUDGMENT
Rule. Learned Advocate Mr. Jayprakash Umot, for respondent No.2, learned Advocate Mr.Saurabh Mehta for respondent no.4 and learned Advocate Mr.Parth Contractor for Page 1 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined respondents no.1 and 3 waives service of notice of rule.
2. This petition challenges the order dated 21/08/2023 passed below Exh.75 in Regular Civil Appeal No.20 of 2012 by the learned 3rd Additional District Judge, Gandhinagar under Article 227 of the Constitution of India.
3. Briefly stated; the case of the petitioner who is org. appellant / plaintiff is that the petitioner has filed the Regular Civil Suit No.46 of 2004 before the learned Additional Senior Civil Judge, Gandhinagar seeking relief for declaration and permanent injunction, also claiming undivided share in the subject matter of suit property. The leaned Court below vide its judgment and decree dated 07/05/2012 dismissed the said suit.
3.1 Aggrieved by the said judgment and decree, petitioner preferred Regular Civil Appeal No.20 of 2012 before the learned first appellate Court which was partly allowed, whereby the learned first appellate Court has remanded the matter back to the Court below for deciding Issue No.3 afresh after giving the opportunities to plaintiffs for cross-examination of defendant no.1 and to pass the judgment on merits accordingly within three months from the date of the receipt of the copy of the said order.
3.2 Being aggrieved by the said order, respondent No.1 - defendant in the suit preferred Appeal from Order No.355 of 2015 before this Court wherein the parties have reached to the consensus that order of the first appellate Court may be set Page 2 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined aside and direction may be issued to hear and decide the Regular Civil Appeal No.20 of 2012 afresh and in accordance with law. The said order reads thus:
"At the joint request, the matter has been taken today along with the Civil Application No.1 of 2021.
It is consensus at bar that the order of the First Appellate Court may be set-aside and direction may be issued to First Appellate Court to hear and decide the Regular Civil Appeal No. 20 of 2012 in accordance with law while keeping all the factual as well as legal issues open for both the sides and to decide the Appeal in time bound manner. Both the sides have assured that they will cooperate the First Appellate Court for early disposal of the Appeal.
In view of the impugned order dated 18.8.2015 passed in Regular Civil Appeal No. 20 of 2012 passed by the learned 2nd Additional District Judge, Gandhinagar, remanding the matter back to the Court below is hereby quashed and set-aside.
The First Appellate Court is hereby directed to expedite the hearing of Regular Civil Appeal No. 20 of 2012 and decide the same as early as possible, preferably within a period of 6 months from the date of receipt of this Order. Both the parties are directed to cooperate the First Appellate Court for early disposal of the Appeal. All the factual as well as legal issues are kept open for both the sides which may be agitated before the Appellate Court. No order as to costs. With these observations, the Appeal from Page 3 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined Order stands disposed of.
ORDER IN CA:
In view of the above order, the Civil Application does not survive and hence the same stands disposed of accordingly."
3.3 In the remand proceedings, the appellant filed application at Exh.75 on 27/02/2023 for production of new documents; parties have been given opportunities of hearing and thereafter by impugned order, the said application came to be rejected.
3.4 Aggrieved by the said order denying permission to place on record the additional documents, the petitioner is before this Court under the supervisory jurisdiction of the Court.
4. Heard learned Advocate Mr.R D Dave for the petitioner, learned Advocate Mr. Jayprakash Umot, for respondent No.2, learned Advocate Mr.Saurabh Mehta for respondent no.4 and learned Advocate Mr.Parth Contractor for respondents no.1 and
3.
5. Learned Advocate for the petitioner Mr.R D Dave has taken this Court through the impugned order and submitted that the Court below has committed gross error in reaching to the conclusion that the petitioner has failed to make out a case for production of the documents. Criticizing the impugned order, he would submit that the Court below failed to address the provisions of O.41 R.27 of the Code of Civil Procedure 1908 (for short "CPC") in its true perspective. He would further submit Page 4 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined that document which the petitioner was intended to produce before the Court below were pertaining to some subsequent development which took place in the dispute between the parties and they were absolute necessary for reaching to the effective final outcome. He would further submit that the petitioner has made innocuous relief before the Court below for production of the documents more particularly when the petitioner was not asking to consider these documents as proved documents as to give exhibits or to consider relevancy. He would further submit that the documents proposed to be produced by the petitioner before the Court below were either the public record or they were some photos or the orders passed by the revenue authorities regarding the suit land. All these documents are essential for better and substantial adjudication of the dispute between the parties; however the learned Court below has overlooked all these aspects, and as such erred.
5.1 Learned Advocate Mr.R D Dave would further submit that, pursuant to order passed by this Court in AO it is quite alive that the Court has kept open the right of the petitioner to raise all factual as well as legal issues for both the sides to decide in the appeal; since right of the petitioner is kept open for adjudicating the legal issue, the petitioner was well within his right to produce the additional document on record by invoking provisions of O.41 R.27 of the CPC.
5.2 Relying upon Nidhi Vs. Ram Kripal Sharma [2017 (5) SCC 640], learned Advocate for the petitioner would submit that the Court has power to take note of the subsequent event took place between the parties inter se regarding the disputed questions Page 5 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined involved in the suit and accordingly mold the relief. Reliance is placed on paragraph 15 of the said decision which reads thus:
"15. Ordinarily, rights of the parties stand crystallised on the date of institution of the suit. However, the court has power to take note of the subsequent events and mould the relief accordingly. Power of the court to take note of subsequent events came up for consideration in a number of decisions. In Om Prakash Gupta vs. Ranbir B. Goyal (2002) 2 SCC 256, this Court held as under:-
"11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and
(iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders (1975) 1 SCC 770 this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice.
However, the Court cautioned: (i) the event should be one Page 6 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed. Om Prakash Gupta's case was referred with approval in Ram Kumar Barnwal vs. Ram Lakhan (Dead) (2007) 5 SCC
660."
5.3 Learned Advocate Mr.R D Dave would further submit that when the documents which are proposed to be produced on record for adjudication of the dispute between the parties, the Court is required to take liberal view by allowing the same. By referring to decision in case of Sanjay Kumar Singh vs. State of Jharkhand [2022 (7) SCC 247] , he would further submit that the Court below failed to notice the ratio laid down therein and relevant consideration which are ought to have been required or to be considered while deciding such application. Reliance is placed on paragraph 4 of the said decision which reads thus:
"4. It is true that 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. It may also be true that the 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 Page 7 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined 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. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature. As observed and held by this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, 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. It is further observed that 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."
5.4 Learned Advocate Mr.R D Dave would further submit that the Court is to take liberal and lenient view to do the justice while deciding application for production of documents at appellate stage. In support thereof, reliance is placed upon the decision in the case of State of Karnataka vs. M.A. Mohamad Page 8 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined Sanaulla & Anr., [2022 (14) Scale 897] . Paragraph 16 of the said decision is reproduced which reads thus:
"16. Having given a thoughtful consideration to the entire conspectus, we are of the view that the State has been denied adequate opportunity by the Courts below and certain material documents have not been taken into consideration by the courts below as such it would in the fitness of things and in the interest of justice that the matter may be remitted back to the Court below. Accordingly, we are not going into greater details of the merits of the matter as it may prejudice the courts below in the fresh determination. However, we wish to point out briefly the reasons for the remand."
5.5 Taking this Court through the list of documentary evidence which the petitioner proposed to produce before the Court below in the RCA, he would submit that petitioner was intended to produce those documents as stated therein for adjudication of the issues between the parties and therefore such permission is required to be granted by the learned first appellate Court, but the first appellate Court erred in denying the same.
5.6 At the end of the above submissions, it is submitted that since the Court below has committed error and not considered the relevant factors governing the production of the documents, at the appellate stage, the impugned order may be set aside by granting permission to produce the documents on record.
6. Learned Advocate Mr. Jayprakash Umot, for respondent Page 9 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined No.2, learned Advocate Mr.Saurabh Mehta for respondent no.4 supports the case of the petitioner.
7. Per contra, learned Advocate Mr.Parth Contractor for respondents no.1 and 3 vehemently objected the petition, as also arguments made by learned Advocate for the petitioner. Firstly, he drew the attention of this Court towards certain dates viz., Regular Civil Suit was dismissed on 07/05/2012; first appeal was filed on 11/06/2012 & decided on 18/08/2015; AO before this Court disposed of 31/03/2022. He would further submit that after one year of the order passed in the AO, the petitioner rise from the slumber like 'Rip Van Winkle' and filed application for production of the document on 27/02/2023; there is a gross delay on the part of the petitioner for production of document and in fact such is the attempt on the part of the petitioner to prolong the final hearing of the appeal.
7.1 Drawing attention of this Court towards the pleading of the application at Exh.75 filed before the first appellate Court, learned Advocate Mr. Parth Contractor would submit that no pleading has been made by the petitioner to the effect of bringing the case within four corners of O.41 R.27 of the CPC; on plain reading of the application, it shows that the petitioner was under
false impression that this Court has granted him right to produce the documentary evidence; but it is not so. O.41 R.27 of the CPC does not give any right to the appellant to produce any documents at the first appellate stage until the conditions stated therein viz., under O.41 R. 27(a) or 27 (aa) of CPC are to be satisfied. He would further submit that insofar as condition Page 10 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined under O.41 R. 27(b) of the CPC is concerned, if the Court feels that certain documents are necessary for adjudication of the dispute between the parties, the Court can admit those documents; but this is not a case here and therefore petitioner cannot produce the documentary evidence as of right at the appellate stage.
7.2 Taking this Court through the application at Exh.75, learned Advocate Mr.Parth Contractor would submit that the said application is not signed by the petitioner; nor it is verified;
neither it is supported by the statement on oath. This application is signed by learned Advocate for the petitioner which is not permissible under the provisions of the CPC.
7.3 Learned Advocate Mr.Parth Contractor would further submit that in civil litigation the rights of the parties stand fixed on the date of the institution of the suit. Ordinarily, the decree in the suit accrued the rights of the parties as they stood on the filing of the suit and on commencement of the lis. He would further submit that the petitioner if intend to rely upon the term 'subsequent development', he has to observe the condition that such 'subsequent development / event' would be of such a nature which shorten the litigation and would complete justice being done to the parties. Consequently, such subsequent event is brought to the notice of the Court appropriately and in accordance with the rules and procedural law. He would further submit that in present case the petitioner has failed to demonstrate that how the proposed documents would shorten the litigation. He would further submit that in view of various Page 11 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined dates which are brought to the notice of this Court admittedly the petitioner has not brought to the notice the documents promptly and in accordance with the rules and procedural law and therefore, he would submit that there is no substance in the case of the petitioner.
7.4 Relying upon O.41 R.27 of CPC, he would submit that the provision of law starts with non obstaint clause. Thus, it is not a right of the party to produce additional document at appellate stage. Normally, the appellate Court is not permitted to travel beyond the record of the lower Court and cannot take any evidence in appeal; except on availability of the exception carved out in O.41 R.27 of CPC. He would further submit that petitioner who is taking recourse of exception carved out in the said provision is required to plead and prove that exception; but in the present case (Exh.75). He would further submit that since it is not a right of the party to produce additional evidence as a matter of course, the party concerned has to satisfy the condition stated in O.41 R.27 of the CPC; the Court is required to be conscious in allowing the additional evidence at the appellate stage when it is intended to bring on record after a long interval between the decree and the application; the petitioner cannot fill-up the lacuna or patch-up the weak points of his case under the guise of producing the additional evidence on record.
7.5 At the end of his submissions, by placing reliance upon the various decisions which is listed herein below learned Advocate Mr.Parth Contractor would submit that the Court below has not Page 12 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined committed any error; much less error of application of the law and therefore, no interference can be called for in a supervisory jurisdiction under Article 227 of the Constitution of India and it is prayed to dismiss the petition.
1. Bassaya I. Mathad V. Rudrayya S. Mathad & Ors.
[2008 (3) SCC 120].
2. N. Kamalam (dead) & Anr. V. Ayyasamy & Anr. [2001 (7) SCC 503].
3. Satishkumar Gupta & Ors. V. State of Haryana & Ors. [2017 (4) SCC 760]
4. Lekhraj Bansal V. State of Rajasthan & Anr.[2014 (15) SCC 686].
5. Kartanaka Board of Wakf V. Government of India & Ors. [2004 (10) SCC 779].
6. Sopanrao & Anr. V. Syed Mehmood & Ors. [2019 (7) SCC 76]
8. Having heard learned Advocates appearing for the respective parties and applying anxious thoughts rival submissions, at the outset, let refer to O.41 R.27 of the CPC which reads thus:
"ORDER XLI APPEALS FROM ORIGINAL DECREES
1. xxxxx (2) xxxx
27. Production of additional evidence in Appellate Court -Page 13 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023
NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined (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) Whenever additional evidence is allowed to be produced, by an Appellate Court, the court shall record the reason for its admission".
9. On plain reading of the aforesaid provision, it is clear that it starts with non obstaint clause. Thus, it is not a right of the party or matter of course for the party intending to produce the additional documents at the appellate stage. Further, the legislature has used the terms "But if" which indicates that sub- rule (a) and (aa) and (b) of the O.41 R.27 are exceptional to the party intended to produce additional evidence at the appellate stage and therefore as a matter of right, party cannot produce Page 14 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined the additional evidence. Party intend to produce additional evidence at appellate stage has to satisfy existence of either of the conditions. The first condition is that the Court below from whose decree the appeal is preferred has refused to admit the evidence which ought to have been admitted by that Court or the party seek production of additional evidence establishes that notwithstanding exercise of due diligence such evidence was not within his knowledge or could not have been produced after the exercise of due diligence and he could not produce them when the decree appealed against was passed.
9.1 Sub-rule (b) of O.41 R.27 of the CPC is for the appellate Court which 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 the production of additional evidence and this condition is subject to the satisfaction of the appellate Court. The appellate Court is required to satisfy itself that document intended to be produced by the party are necessary for doing substantial justice between the parties and to reach to the just conclusion of the dispute for pronouncement of the judgment. The terms that appellate Court may allow such evidence or document to be produced indicates that the provision is subject to the discretion of the Court. To be noted that sub-rule (2) of O.41 R.27 terms used is 'shall' which means that appellate Court is intended to allow the additional evidence or production thereof, the appellate court is required to record the reasons. Thus, what exhibits that provisions of O.41 R.27 (a) and (aa) and (b) are subject to the discretion of the Court; but observance of sub-rule (2) is Page 15 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined mandatory.
10. In background of the above provisions of law, if we refer the application at Exh.75 which reads in translated version in English thus:
"In the Court of District Judge, Gandhinagar Civil Appeal No.20/2012 Appellant : Balvantbhai Hirabhai Patel Vs Respondent : Sushilaben Hirabhai Patel Sub: Production application on behalf of the appellant for producing the documentary evidences in the matter. In this case, it is humble submission of the appellant before Your Honour's Court that
1. I the undersigned Appellant hereby submit before Your Honour's Court regarding the Appeal that in pursuance of the joint order of the Hon'ble High Court of Gujarat in Re.Appeal from Order No.355/2015 and CA No.1/2021, it is directed that "it is consensus at bar that the order of the first appellate Court may be set-aside and direction may be issued to first appellate Court to hear and decide the regular civil appeal no.20 of 2012, in accordance with law while keeping all the decide appeal in time bound manner. Both the sides have assured that they will co-operate the first appellate Court for early disposal of the appeal."
Thus, the right has been given to I the appellant and the Page 16 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined Respondent to produce subsequent document under present appeal. Accordingly, I the appellant intends to adduce various documentary evidences at nos.1 to 23 before the Court under direction of the Hon'ble High Court of Gujarat. Thus, as aforesaid documentary evidences are important, be pleased to do the needful to direct taking aforesaid evidences on record on perusal of production application."
11. The contention of learned Advocate for the petitioner that this Court while passing order in AO has given permission to the petitioner to produce and to raise all legal issues which includes filing of the application under O.41 R.27 and application at Exh.75 reflects that the petitioner has filed this application as he has been given right by this Court to produce certain additional evidence. The order passed by this Court does not indicate so. In fact, it appears that the petitioner has misconceived the order passed in AO or rather interpreted conveniently. No such right is given by this Court for moving the first appellate Court for production of the documents. Needless to say that scope of the first appeal is large enough to address the issue which were agitated before the Court below and in that context this Court has kept open the factual as well as legal issues to be argued and contested in the first appeal.
12. Another contention of learned Advocate for the petitioner was that document which the petitioner was intended to produce before the Court below are part of subsequent development and therefore they were necessary documents which could enable the Page 17 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined first appellate Court to adjudicate the dispute between the party to pronounce the judgment. Perusal of the impugned order indicates that from the intended documents, documents at Sr. No.1 and 2 and 8 were already produced during the trial of the suit and they were already exhibited at Exh.117 and 119 and as such were admitted in evidence. The petitioner has not pointed out this aspect in his application before the Court below or before this Court and it is not clarified that in spite of these documents are produced and even admitted in the evidence why the petitioner is intended to produce the same again at the appellate stage.
13. Some of the document which petitioner intend to produce are copy of the judgment, they cannot be termed as documentary evidence. Petitioner is also intending to produce photographs as documentary evidence to prove possession of subject land; without producing negatives. The photographs are admittedly secondary evidence and has no evidential value without producing negatives. (see 1990 (2) GLH 372 between State of Gujarat vs. Bharat @ Bhupendra @ Haka Naranbhai.)
14. Learned first appellate court has noted that document No.3, 4, 8, 11 and 7 could have been produced at the time of filing of the suit. To be recollected that the petitioner who intend to produce the document at appellate stage has to go through the rigorous and test of O.41 R.27 (a) or (aa). Application before the Court below is totally silent on the issue and no pleading or even whisper of it has been made.
Page 18 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined
15. It is also to be noted that judgment and decree was passed on 07/05/2012 and first appeal was filed on 11/06/2012. The petitioner at that time did not move the Court for production of additional evidence. He approached the Court below first time on 27/02/2023 almost after yawning gap of 10 years after passing decree. It is even more surprising that when the first appeal was heard and decided on 18/08/2015, the petitioner did not produce the document as additional document at that time. Looking to the dates of the documents, most of them, were available to the petitioner at the time of previous hearing of the first appeal, as also AO was heard and decided. The petitioner remained silent and in slumber through out for the period and filed the petition after long passage of time. The intervening period between decree and date of making application for production of additional evidence is notwithstanding long and yawning, but also unexplained.
16. In Sanjay Kumar Singh (supra) the Hon'ble Apex court has clearly laid down that additional evidence at the appellate stage is permissible only if the conditions laid down in O.41 R.27 of the CPC are exist.
17. At this juncture, the observations and finding of the Five Judges Bench of the Hon'ble Apex Court in the case of Municipal Corporation of Greater Bombay vs. Lala Pancham [1965 AIR (SC)-0-1008 are relevant and material, paragraph 9 thereof which reads thus:
"9. The High Court was quite alive to the requirement of law that party should not be allowed to make out a new Page 19 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined case by way of an amendment to the pleading. Dealing with this matter the High Court has observed :
"This brings us to the course which we must adopt in the present case and the amendment application. In the plaint, the plaintiff alleged that the order was mala fide and that it was obtained for collateral purposes."
The learned Judges were not correct in observing that it was the plaintiffs' case in the plaint that the landlords had obtained the clearance order or that the Corporation had made that order for a collateral purpose. This impression of the High Court seems to be the basis of the rather curious procedure which it chose to follow in this case. Then the High Court referred to the fact that no evidence whatsoever had been led by the plaintiffs before the City Civil Court to the effect that the order was passed fraudulently or for a collateral purpose. It was alive to the fact that in such a case a party should not be allowed to adduce fresh evidence at the appellate stage and much less so at the stage of letters patent appeal. Then it observed :
"If the case had rested thus the matter would have been very simple apart from the amendment application. It seems to us however that it is not possible to dispose of this case satisfactorily on the material on record. There are some documents on record which if unexplained support in a large measure the contention of the plaintiffs that defendants 2, 3 and 4 obtained the order by fraud and also that the order was mala fide."Page 20 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023
NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined If the High Court, in making these observations, was referring to the provisions of 0. XLI, r. 27, Code of Civil Procedure it ought not to have overlooked the mandatory provisions of cl. (b) of sub-r. (1) of r. 27. No doubt, under r. 27 the High Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. The High Court does not say that there is any such lacuna in this case. On the other hand what it says is that certain documentary evidence on record supports "in a large measure" the plaintiffs' contention about fraud and mala fides. We shall deal with these documents presently but before that we must point out that the power under cl.
(b) of sub-r. (1) of r. 27 cannot be exercised for adding to the evidence already on record except upon one of the grounds specified in the provision. If the documents on record are relevant on the issue of fraud the court could well proceed to consider them and decide the issue. The observations of the High Court that certain documents would support the plaintiffs' contention of fraud only if Page 21 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined they were not explained would show that according to it they furnish a prima facie evidence of fraud. There is nothing to show that the defendants or any of them wanted to be afforded an opportunity for explaining the documents. It would further appear that it was not merely for the limited purpose of affording the defendants an opportunity to explain the documents that the High Court remitted the case to the City Civil Court. For, in the concluding portion of its judgment the High Court has directed as follows :
"in the result, we remit the case to the City Civil Court for receiving additional evidence as directed by us in the judgment and also to allow evidence on the amendment. We direct that the defendants do file their written statement within three weeks from today, or at such earlier time as they can in answer to the amendment permitted to be made. Discovery and inspection forthwith within a week thereafter. And after this formality is over, the case to be on the board for final hearing for taking evidence on the issue of mala fide and the issues that arise on the amended pleadings between the parties........"
This clearly shows that what the High Court has in substance done is to order a fresh trial. Such a course is not permissible under 0. XLI, r. 27, Code of Civil Procedure. The High Court has quite clearly not proceeded under 0. XLI, r. 25 because it has not come to the conclusion that the City Civil Court had omitted to frame or try an issue or to determine the question of fact which Page 22 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined was essential to the right decision of a suit. For, the High Court has not indicated which issue was not tried by the Court below. If the High Court meant that the necessary issue had not been raised by the Court below though such issue was called for in the light of the pleadings, the High Court is required under this rule to frame the additional issue and then remit it for trial to the City Civil Court. Finally, this is not a case which was decided by the Court below on any preliminary point and, therefore, a general remand such as is permissible under r. 23 could not be ordered."
18. With profit decision in case of N. Kamalam (dead) & Anr. (supra) may also be referred, more particularly, paragraph 19 thereof which reads thus:
"Incidentally, the provisions of Order 41 Rule 27 has not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal - It does not authorise any lacunae or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the Appellate Court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way. This Court in The Municipal Corporation of Greater Bombay v. Lala Pancham and others (AIR 1965 SC 1008) has been candid enough to record that the requirement of the high Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. In Page 23 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined paragraph 9 of the judgment, this Court observed:
This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. The High Court does not say that there is any such lacuna in this case. On the other hand what it says is that certain documentary evidence on record supports in a large measure the plaintiffs contention about fraud and mala fides. We shall deal with these documents presently but before that we must point out that the power under cl. (b) of sub-r. (1) of r.27 cannot be exercised for adding to the evidence already on record except upon one of the ground specified in the provision.
Further in Smt. Pramod Kumari Bhatia v. Om Parkash Bhatia and Others (AIR 1980 SC 446) this Court also in more or less in an identical situation laid down that since an application to the High Court has been made very many years after the filing of the suit and also quite some years after the appeal had been filed before the High Court, question of interfering with the discretion exercised by the High Court in refusing to receive an additional evidence at that stage would not arise. The time lag in the matter under consideration is also enormous and the additional Page 24 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined evidence sought to be produced was as a matter of fact after a period of 10 years after the filing of the appeal. Presently, the suit was instituted in the year 1981 and the decree therein was passed in 1983. The first appeal was filed before the High Court in April, 1983 but the application for permission to adduce additional evidence came to be made only in August, 1993. Needless to record that the courts shall have to be cautious and must always act with great circumspection in dealing with the claims for letting in additional evidence particularly, in the form of oral evidence at the appellate stage and that too, after a long lapse of time: In our view, a plain reading of Order 41 Rule 27 would depict that the rejection of the claim for production of additional evidence after a period of 10 years from the date of filing of the appeal, as noticed above, cannot be termed to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted. The learned Trial Judge while dealing with the matter has, as a matter of fact, very strongly commented upon the lapse and failure on the part of the plaintiffs even to summon the attestors to the will and in our view contextually, the justice of the situation does not warrant any interference. The attempt, the High Court ascribed it, to be a stage managed affair in order somehow to defeat the claim of the respondents - and having had the privilege of perusal of record we lend our concurrence thereto and the finding of the High Court can not be found fault with for rejecting the prayer of the appellant for additional evidence made in the belated application. In that view of Page 25 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined the matter, the first issue is answered in the negative and thus against the plaintiffs being the appellant herein."
19. Case of Satishkumar Gupta & Ors., (supra) may also be referred more particularly paragraph 19 and 20 which reads thus:
"19. The other part of the impugned order permitting additional evidence and remanding the case for fresh decision is uncalled for. No case was made out for permitting additional evidence on settled principles under Order XLI Rule 27 of CPC. The provision is reproduced below:-
"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 Page 26 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined 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."
20. It is clear that neither the Court below has refused to receive the evidence nor it could be said that the evidence sought to be adduced was not available despite the exercise of due diligence nor it could be held to necessary to pronounce the judgment. Additional evidence cannot be permitted to fill-in the lacunae or to patch-up the weak points in the case[17]. There was no ground for remand in these circumstances."
20. It is not the case of the petitioner that the Court below has refused to accept the document which he intends to produce on record at the appellate stage or those documents were not available with him despite the excuse of due diligence. Apt to note that the learned Court below has not held that these documents are necessary for pronouncement of judgment. In such circumstances, additional evidence cannot be permitted to produce to fill-up the lacuna or patch-up the gaps.
21. Thus, no merits are found in the case, which permit this Court to interfere in the impugned judgment in limited jurisdiction under Article 227 of the Constitution of India.
Page 27 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined
22. Before parting with the order, I may also refer to the decision in case of M/S Puri Investments Versus M/S Young Friends And Co. & Ors., [2022 Live Law SC 279] wherein the Hon'ble Apex Court while dealing with the scope of interference under the supervisory jurisdiction under Article 227 of the Constitution of India in paragraph 10 and 11 has held as under:
"10. In the case before us, occupation of a portion of the subject-premises by the three 5 doctors stands admitted. What has been argued by the learned counsel for the appellant is that once the Tribunal had arrived at a finding on fact based on the principles of law, which have been enunciated by this Court, and reflected in the aforesaid passages quoted from the three authorities, the interference by the High Court under Article 227 of the Constitution of India was unwarranted. To persuade us to sustain the High Court's order, learned counsel appearing for the respondents has emphasized that full control over the premises was never ceded to the medical practitioners and the entry and exit to the premises in question remained under exclusive control of the respondent(s)- tenant. This is the main defence of the tenant. We have considered the submissions of the respective counsel and also gone through the decisions of the fact-finding fora and also that of the High Court. At this stage, we cannot revisit the factual aspects of the dispute. Nor can we re- appreciate evidence to assess the quality thereof, which has been considered by the two fact-finding fora. The view of the forum of first instance was reversed by the Appellate Tribunal. The High Court was conscious of the restrictive Page 28 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined nature of jurisdiction under Article 227 of the Constitution of India. In the judgment under appeal, it has been recorded that it could not subject the decision of the appellate forum in a manner which would project as if it was sitting in appeal. It proceeded, on such observation being made, to opine that it was the duty of the supervisory Court to interdict if it was found that findings of the appellate forum were perverse. Three situations were spelt out in the judgment under appeal as to when a finding on facts or questions of law would be perverse. These are:- (i) Erroneous on account of non-consideration of material evidence, or (ii) Being conclusions which are contrary to the evidence, or (iii) Based on inferences that are impermissible in law.
11. We are in agreement with the High Court's enunciation of the principles of law on scope of interference by the supervisory Court on decisions of the fact-finding forum. But having gone through the decisions of the two stages of fact-finding by the statutory fora, we are of the view that there was overstepping of this boundary by the supervisory Court. In its exercise of scrutinizing the evidence to find out if any of the three aforesaid conditions were breached, there was re-appreciation of evidence itself by the supervisory Court."
23. Thus, for the foregoing reasons, the petitioner has failed to make out case that finding in the impugned order is erroneous on the account of non-consideration of the material provisions of Page 29 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023 NEUTRAL CITATION C/SCA/14995/2023 CAV JUDGMENT DATED: 25/09/2023 undefined law or is against factual conception. The petition stands dismissed. Rule is discharged.
(J. C. DOSHI,J) sompura Page 30 of 30 Downloaded on : Mon Sep 25 20:47:36 IST 2023