Himachal Pradesh High Court
Bhisham Lal Garg vs Hardei And Ors on 27 February, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 449 of 2009.
Date of Decision: 27.2.2017.
.
______________________________________________________________________
[
Bhisham Lal Garg .........Appellant.
Versus
Hardei and Ors. ....Respondents.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting1? Yes
For the appellant: Mr. J.R. Poswal, Advocate.
For the respondents:
rt Mr. Nitin Thakur, Advocate for respondent No.1 and LRs
No. 2(a) to 2(e).
____________________________________________________________________
Sandeep Sharma, J. (Oral)
Having regard to the nature of order, this Court proposes to pass, it may not be necessary to take note of the facts of the case, save and except that the plaintiff-appellant, who had lost in both the learned courts below, had preferred an application under Order 41 Rule 27 during the pendency of appeal before learned first Appellate Court, wherein he sought to produce certain documents. Careful perusal of record, as perused by this Court, suggests that the aforesaid application having been preferred by the plaintiff appellant was entertained and time was granted to the opposite party to file reply. Similarly, perusal of Whether reporters of the Local papers are allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:56:50 :::HCHP -2-order sheet suggests that matter was repeatedly adjourned on the request of respective parties to enable them to complete pleadings in .
the proceedings arising out of application under Order 41 Rule 27.
However, as a matter of fact, matter was ordered to be heard finally on 15.5.2009 and thereafter, vide judgment dated 22.5.2009, appeal having been preferred by the plaintiff was dismissed without taking note of of application under Order 41 Rule 27.
2. Close scrutiny of record made available to this Court clearly rt suggests that while deciding the main appeal, learned lower appellate Court failed to take note of the application filed under Order 41 Rule 27 as well as documents accompanying the same. This court was unable to find any mention with regard to the pendency of aforesaid application in the impugned judgment. Learned first appellate Court without caring to look into the merits of the aforesaid application, proceeded to decide the appeal in slipshod manner.
3. By now, it is well settled that application filed under Order 41 Rule 27 is required to be decided along with the main appeal but as has been observed above, there is no consideration of the application for leading additional evidence by the learned trial Court while passing the final judgment in the appeal having been preferred by the appellant ::: Downloaded on - 15/04/2017 21:56:50 :::HCHP -3- plaintiff. Once an application under Order 41 Rule 27 CPC was filed and thereafter entertained by the first appellate Court, it was incumbent .
upon the first appellate Court to consider/deal with the same on merits but impugned judgment having been passed by the learned first appellate Court nowhere suggests that above referred application was ever considered by the Court while deciding the main appeal.
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4. It has been repeatedly held by the Hon'ble Apex Court that dismissal of appeal without deciding the application of additional rt evidence is improper and in all eventualities, application for additional evidence under Order 41 Rule 27 CPC should be dealt with on merits at the first instance. In this regard, reliance is placed on judgment passed by the Hon'ble Supreme Court in case titled "Jatinder Singh & Anr. (Minor through mother) v. Mehar singh and Ors. with Balbir Singh & Anr. V. Jatinder Singh and Anr", AIR 2009 (Vol. 96) Supreme Court 354, the relevant paragraphs are being reproduced herein below:-
"3. In our view, this appeal can be decided on a very short question. The trial court as well as the appellate court and finally the High Court in the second appeal dismissed the suit filed by the plaintiffs/appellants for declaration challenging the sale deed dated 29th of May, 1989, executed by the respondent Nos. 1 to 3 in favour of respondent Nos. 9 and 10 as well as the compromise (Exhibit No. C1) dated 7th of April, 1986 in a suit title Ujagar Singh vs. Puran Singh, But it is an admitted position that before the High Court, the appellants filed an application under Order 41 Rule 27 of the Code of Civil Procedure for acceptance of additional evidence, namely, documents such as certificate of Military service, voter list ::: Downloaded on - 15/04/2017 21:56:50 :::HCHP -4- of concerned assembly segment for the year 1982, receipt of house tax 1988-89, payment of chaowkdra of khariff 1986, rabi 1990, rabi 1991, khariff 1992, identity card issued by Election Commission of India, Ration Card etc. .
4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41 Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit of the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.
rt
5. For the reasons aforesaid, the impugned Judgment is set aside. The appeal is thus allowed to the extent indicated above. There will be no order as to costs."
5. As a court of first appeal, it is bounden duty of the court below to deal with all issues and evidence led by the parties before recording its finding, particularly by discussing additional evidence.
6. True it is, it is the pure discretion of the appellate court to allow/disallow the additional evidence proposed to be led on record and such discretion is required to be used sparingly. Under Order 41 Rule 27 CPC, appellate court has power to allow the document to be produced and witness to be examined but the requirement of Court must be limited to those cases where it found necessary to obtain such evidence for enabling it to pronounce judgment. But before exercising the discretion as referred above, Court is expected to assign reasons for accepting or rejecting the additional evidence sought to be adduced on record during the pendency of the first appeal. In ::: Downloaded on - 15/04/2017 21:56:50 :::HCHP -5- this regard, reliance is placed on judgment passed by the Hon'ble Apex Court in case titled "Union of India v. Ibrahim Uddin and Anr", (2012) 8 .
Supreme Court Cases 148, the relevant paras whereof are reproduced herein below:-
"36. 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 XLI Rule 27 of CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when rt on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC
553).
37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide:
Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).
38. Under Order XLI , Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said 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 appellate 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 ::: Downloaded on - 15/04/2017 21:56:50 :::HCHP -6- 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. (Vide: Lala Pancham & Ors.) .
39. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in of appeal. (Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC
101).
rt
40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.
42. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the Court of further appeal to see, if the discretion under this rule has been properly exercised by the Court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the rule.
::: Downloaded on - 15/04/2017 21:56:50 :::HCHP -7-43. The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate Court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the .
interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough comp1iance with the requirement as to recording of reasons.
44. It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order of and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice - delivery system, to make it known that there had been rt proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. (Vide: State of Orissa v. Dhaniram Luhar, AIR 2004 SC 1794; State of Uttaranchal & Anr. v. Sunil Kumar Singh Negi, AIR 2008 SC 2026; The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity & Ors., AIR 2010 SC 1285; and Sant Lal Gupta & Ors. v. Modern Cooperative Group Housing Society Limited & Ors., (2010) 13 SCC 336): (2010) 4 SCC (Civ)904).. "
[Emphasis supplied] [See "Eastern Equipment & Sales Limited vs. Ing. Yash Kumar Khanna", (2008) 12 Supreme Court Cases 739 and Rajender Singh and others v. Mani Ram, Latest HLJ 2014 (HP) Suppl. 127)]
7. In the instant case, as has been observed above, learned lower appellate Court has failed to discharge the obligation placed on it and judgment under appeal is absolutely cryptic and no reasons, whatsoever, have been assigned by the first appellate Court while rejecting/accepting the ::: Downloaded on - 15/04/2017 21:56:50 :::HCHP -8- application having been moved by the appellant-plaintiff under Order 41 Rule
27. .
8. In view of the above position, this Court sees substantial force in the argument made by Mr. Poswal, learned counsel appearing for the petitioner that great prejudice has been caused to the appellant plaintiff in as much as there is no decision on the application under Order 41 Rule 27 preferred by him.
of It has been repeatedly held by this court that first appeal is a valuable right and the parties have right to be heard on both the questions of law and facts and the judgment in first appeal must address itself to all the issues of law and fact rt and decide it by giving reasons in support of such findings.
9. Consequently, in view of the above, impugned judgment passed by the learned appellate Court is set-aside and the learned District Judge, Bilaspur, is directed to decide the appeal afresh in accordance with law.
Considering the facts and circumstances of the case, Learned first appellate court, in view of the observations made herein above, is expected to dispose of the present appeal at an early date preferably within a period of six months, from the receipt of the copy of the judgment passed by this Court.
10. The parties through their counsel are directed to appear before the learned lower appellate Court on 14.3.2017. The records be sent back immediately so as to reach before the date fixed.
27th February, 2017 (Sandeep Sharma),
manjit Judge.
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