Calcutta High Court (Appellete Side)
Anr vs Haradhan Mondal And Others on 13 March, 2023
13.03.2023
C.O. 2593 of 2022
Malidanga Reijendra Memorial Institution and
Anr.
-versus
Haradhan Mondal and Others.
Mr. Biswajit Hazra
Mr. Tanmoy Mukherjee
Mr. Archisman Sain
...For the Petitioners.
Mr. Narayan Debnath
Mr. Bishalazmi Ghosh
...for the Opposite Party No.1.
The petitioners before this court are the
appellants in the learned court below and is
aggrieved by an order of rejection of an
application made by them under Order 41
Rule 27 of the code of civil procedure. The
petitioner being aggrieved by the order no61
dated15/07/2022 passed by Learned
Additional District Judge (FTC)Kalna Purba
Burdwan has come up with the instant
Revisional Application.
The case of the petitioner may be
summed up thus.
1.The petitioner no-1/defendant/appellant is a government sponsored educational institute namely Maldanga Rajendra Memorial Institution (H.S) situated at village and Post Office Maldanga, police Station-Manteswar, District Purba Bardhaman.
2. There is a plot of land under Mouja KhanpurC.S. Khatian No737, plot Number 851, under block-Monteswar, District-Purba Bardhaman, measuring about13decimals. The original owners of the aforesaid plot of land were one Jatindra Nath Singha, Tinkari Singha, Gokul Chandra Singha and Nityananda Singha and after the demise of said Nitya Nanda Singha his two sons namely Shyamapada Singha and Sankari Prasad Singha became the successor of said Nitya Nanda Singha.
3. That being the education enthusiasts the persons aforesaid Tinkari Singha ,Nityananda Singha gifted the said plot of land by way of an unregistered deed of gift dated 15/02.1949 to the said School, which is the petitioner no 1 herein and since then the petitioner no1 is under enjoyment and/or possession of the said plot of land .It is also pertinent to say that, the people of the concerned area know that the said plot of land is possessed by the petitioner No. 1/said school by virtue of the said gift made by the aforesaid education enthusiasts persons namely Tinkari Singha, Nityananda Singha and JatindraNath Singha and till date the aforesaid plot of land is being used by the said school authority for the purpose of education.
4. The plaintiffs/opposite party No. 1 purchased the aforesaid plot of land/suit property from the legal heirs of the said Tinkari Singha Nityananda Singha and Jatindra Nath Singha by way of a registered deed of sale. The opposite party number one is as much as knowledgeable like other people of the area concerned that, the suit property has been gifted to the said school, which is the petitioner No. 1 herein, by virtue of a deed of gift dated15/02/1949 and since then it is the possession under the petitioner No. 1, despite of that, the opposite party No. 1 executed the various deed of sale with the heirs of the aforesaid donors of the suit property.
5. Thereafter the opposite party Nos. 2 filed a suit for declaration with consequential relief being title suit No.269 of 1999 in the court of Learned Munsif at Kalna, District- Purba Bardhaman (formerly known as District - Burdwan) against the petitioners in respect of the aforesaid plot of Land and after receiving the summons the petitioners made it's entry in the said suit proceedings. Ultimately the said suit came up for hearing on different dates and decreed on contest against the Defendant No. 1 and 2/petitioners and ex-parte against the rest.
6. The petitioners being aggrieved by the Judgment and Decree passed by Learned Civil Judge (Junior Division) Kalna Purba Burdhaman in Title Suit No-269 of 1999 preferred an appeal against the said Decree which is pending before Learned Additional District Judge (FTC) Kalna Purba Bardhaman being Title Appeal No-16 of 2018.
7. During the pendency of the appeal the petitioners filed an Application under Order 41 Rule 27 of the Code of Civil Procedure for production of one certified copy of registered deed of sale being I-1865/1993 as an additional evidence in the Learned Court of Appeal below. The said Sale Deed was executed at sub-registry office at Monteswar by one Jugal Kishor Singha son of Late Jatindra Nath Singha in respect of Suit plot No. 851.
8. On 15th July 2022 Learned Court of Appeal upon hearing the parties was pleased to reject the application under Order 41 Rule 27 of the Code of Civil Procedure.
The petitioners being aggrieved by the Order dated 15th July 2022 passed by Learned Additional District Judge (FTC) Purba Bardhaman in TA-16 of 2018 has come up with the present application.
It is the contention of the petitioners that the Learned Additional District Judge (FTC), passed the impugned Order without applying the Judicial mind. It is further contended that additional evidence is required to be produced before the Learned Court of Appeal for the purpose of Justice and for adjudication of the said Appeal. It is also contended that the Learned Judge acted illegally in not considering the statement of fact contained in the said application under Order 41 Rule 27 of the Code made by the petitioners.
Heard Learned Advocate for the petitioners and Learned Advocate for the opposite parties perused the petition filed and materials on record.
It appears from the Order dated 15-07- 2022 that the Learned Additional District Judge (FTC) Kalna Purba Bardhaman was pleased to reject the application under Order 41 Rule 27 of the Code of Civil Procedure by observing and directing as follows:
'this is a case between plaintiff and the defendant and even after lapse of 20 years the said stranger purchaser Jnanendra Singha has neither come up before this court nor before the Learned Trial Court to claim his right, title and interest in respect of 1 decimal of land in plot no. 851 and as such I do not find any reason as to why the appellant is so much eager to establish the claim of the said stranger purchaser in respect of the said portion of land as mentioned in registered sale deed sought to be introduced by way of additional evidence when the said document is surely not going to improve the claim of the appellant/defendant rather it has the effect of nullifying the same. Thus I find that the appellant has failed to establish that in the absence of the said registered deed, judgment cannot be pronounced.
Considering the facts and circumstances of the case and upon careful perusal of the registered sale deed I am of the opinion that the appellant has failed to satisfy the basic ingredients of Order 41 Rule 27 CPC required for admitting the said deed as additional evidence. Accordingly, the petition under Order 41 Rule 27 CPC is liable to be rejected.' In Order to decide the validity of the impugned Order it is necessary to consider the provisions contained in Order 41 Rule 27 of the Code of Civil Procedure and some judicial pronouncements. Order 41 Rule 27 of the Code of Civil Procedure provides as follows:
1) 'The parties to an appeal shall not be entitled to produce additional evidence whether real 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.' In the case of Deputy Commissioner Taluka Social Welfare officer and another V Channaveeryya and another 2013 (2) Civil LJ 690 (kant) where an application under Order XLI Rule 27 CPC was filed by appellants/petitioners seeking permission for production of documents in pending first appeal it was held that the Appellate Court ought to have considered the application under Order XLI Rule 27 CPC, along with the appeal hence the first Appellate Court committed error and illegality in taking the said application for consideration without taking up the appeal for consideration. The procedure adopted by the Court below was held irrational and the Order under challenge was held illegal. Therefore the Order under challenge was set aside and the Court below was directed to examine the said application along with appeal and decide the matter in accordance with law.
In the case of Bijay Kumar Bannerjee Vs Smt. Malati Bannerjee reported in AIR-2007 Ori 155 the Hon'ble Court observed as follows:
'If a petition under Order XLI Rule 27 CPC is filed the Appellate Court may postpone consideration of the said petition till hearing of the appeal and should take up the same at the time of hearing of the appeal on merits, so, as to find whether the documents and/or evidence sought to be adduced have any relevance or bearing in the issues involved. In the instant case the documents sought to be introduced being all materials on record and as judgment in an earlier Suit and as the same had a bearing on the issues to be decided by the Court, therefore it can be said that the said documents were necessary for a just decision of the case.' In the case of Anima Das Sharma Vs Dr Lawrence Trevas reported in (1976) 2 CAL LJ. 243 it was observed that Appellate Court has power under Order XLI Rule 27 to admit additional evidence where the Court feels that in the interest of Justice something which remains obscure should be cleared up so that Court may pronounce judgment in a more satisfactory manner. Negligence of a party in adducing evidence before Trial Court is no bar when Court itself requires for a satisfactory decision. Thus from the decisions referred above it will appear that Court of Appeal can permit additional evidence in the interest of Justice irrespective of the fact that there was negligence of the party concerned who seeks to adduce additional evidence.
In the instant case the petitioner no-1 is the Government sponsored School imparting education, which is the basic requirement in a society. The petitioners who have already suffered a decree of eviction in the suit will have to hand over possession of the suit property where the School is run which will affect the education of several students unless the decree is set aside in appeal. It is thus the duty of the petitioners in public interest to produce relevant documents in appeal as evidence even if the same could not be produced during trial either due to negligence or due to the non-availability of the same. Thus the relevant documents may be produced in appeal as evidence if the same protects the valuable right of a party and enables him to get the relief. It is a well settled principle of law that parties in a suit has obligation to disclose all material facts before the Court. In the event any party suppresses any material fact before the Court the opposite party may disclose the said material fact whenever it comes to his knowledge and the Court at any stage of the proceedings is empowered to take cognizance of the said facts. Thus the Court of Appeal while considering petition under Order 41 Rule 27 of the Code of Civil Procedure should consider that whether in the interest of Justice something which remains obscure should be cleared up so that Court may pronounce judgment in a more satisfactory manner and should not give priority to the issue of negligence.
In the instant matter the deed of sale relied upon by the petitioners should be considered as to whether by virtue of the said deed of sale right of the plaintiff opposite party no-1 in the suit property is partly extinguished or not and the petitioners/defendant no-1 and 2 have a better right of possession or not. However these facts are to be taken into consideration along with the hearing of the Appeal and not in isolation.
In the facts and circumstances discussed above this Revisional
Application stands allowed. Order dated 15/07/2022 passed by Learned Additional District Judge (FTC) Kalna Purba Bardhaman in Title Appeal 16 of 2018 is set aside. The matter is remitted back to the Learned Court below to consider the application under Order 41 Rule 27 of the Code of Civil Procedure filed by the Appellant along with the hearing of the Appeal.
(Biswaroop Chowdhury,J)