Calcutta High Court (Appellete Side)
Sri Laxmi Janardan Deity Represented By ... vs Pradip Bhar on 10 December, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1
10.12.19
Mithun
List - S/L
Sl. No. 43
Ct. No. 17
S.A. 247 of 2017
Sri Laxmi Janardan Deity represented by Sebaits; Somnath Banerjee & Ors.
-Vs.-
Pradip Bhar
Mr. Aniruddha Chatterjee,Adv.
Mr. Kushal Chatterjee, Adv.
...for the Appellants.
Mr. Piyush Chaturvedi, Adv.
Ms. Soma Kar Ghosh, Adv.
Mr. Abhishek Banerjee, Adv.
...for the Opposite Party.
CAN 11908 of 2019 is an application filed on behalf of the
appellants/petitioners on 9th December, 2019 under Order 41 Rule 27(1)(b) of the
Code of Civil Procedure praying for allowing the petitioners to bring the Original
Power of Attorney on record by way of additional evidence and also the petitioners
may be permitted to rely upon the said Power of Attorney in this appeal for
effective and proper adjudication of the same.
On 6th December, 2019, Constituted Attorney of the petitioners filed a
supplementary affidavit stating inter alia that the judgment and decree passed
against the respondent by the learned Civil Judge (Junior Division), 3rd Court at
Sealdah in Title Suit No.84 of 2012 was reversed in Title Appeal No.32 of 2015 because of the fact that the petitioners could not file the Original Power of Attorney during the trial of the suit. Therefore, along with the supplementary affidavit, the petitioners have filed the Original Power of Attorney with a prayer to bring the same on record as evidence on behalf of the appellants for proper and effective disposal of the appeal.
Mr.Chaturvedi, learned Advocate for the respondent has raised vehement objection submitting, inter alia that the respondent should be given an 2 opportunity to file affidavit-in-opposition against the aforesaid application dated 9th December, 2019.
Mr. Aniruddha Chatterjee, learned Advocate for the appellants/petitioners submits that the petitioners have filed the application under Order 41 Rule 27(1)(b) of the Code of Civil Procedure. It is submitted by Mr. Chatterjee that Rule 27 deals with production of additional evidence in Appellate Court. Sub-Rule (1)(b) of Rule 27 of Order 41 makes it clear that if the Appellate Court requires any documents to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, the Court of Appeal may allow such evidence or documents, to be produced or witness to be examined. It is pointed out by Mr.Chatterjee that the petitioners have not filed the application under Order 41 Rule 27(1)(aa) of the Code of Civil Procedure where the petitioners are required to establish that in spite of due diligence, the evidence that is required to be brought at the stage of appeal could not be produced at the time when the decree appeal was passed. According to Mr. Chatterjee, there is a marked difference between the provisions contained in Clauses (aa) and (b) of Sub-Rule (1) of Rule 27. It is submitted by Mr. Chatterjee that Clause (b) relates to requirement of additional evidence by the Court for effective adjudication of the appeal where it is found that non-filing of such document was a mere irregularity which could be cured. It is not in dispute that the trial of the suit and the First Appeal in Lower Appellate Court was taken care of by the Constituted Attorney on behalf of the petitioners. The appeal was allowed by passing the impugned judgment and decree for non-filing of the Power of Attorney. According to Mr. Chatterjee, it was a mere irregularity and curable one and this Court should permit the petitioners to file the said Power of Attorney for consideration and in such case the defect which had crept in the proceeding would be cured retrospectively. In support of his contention, Mr. Chatterjee refers to a decision of this Court in Ashoke Kumar Daw and another Vs. Gobinda Chandra Dev and others reported in AIR 1984 Cal 337.
3Mr.Chaturvedi, on the other hand submits that under the facts and circumstances of this case, the Court cannot invoke Clause (b) of Rule 27 of Order 41 of the Code of Civil Procedure because in the cross-examination dated 4th June, 2014, P.W.1 clearly stated that although he would file the Power of Attorney on the next date, but he did not file the same. Therefore, the petitioners were all along aware that the Original Power of Attorney is necessary for proper adjudication of the lis but they did not file at their own risk. Therefore, an inference may be drawn against the petitioners that they thought it not essential to file the said Power of Attorney. By referring to a decision of the Hon'ble Supreme Court in the case of K.R.Mohan Reddy Vs. M/S. Net Work Inc reported in AIR 2008 SC 579, Mr. Chaturvedi submits that the conditions precedent for application of Clause (aa) of Sub-Rule(1) of Rule 27 of Order 41 is different from that of Clause(b). In the event, the former is to be applied, it would be for the applicant to show that the conditions precedent mentioned therein are satisfied. On the other hand, Clause(b) to Sub-Rule (1) of Rule 27 of Order 41 is to be taken recourse to, the Appellate Court was bound to consider the entire evidences on record and come to an independent finding for arriving at a just decision; adduction of additional evidence as has been prayed by the appellants was necessary.
Relying on the above mentioned decision of the Hon'ble Supreme Court in K.R.Mohan Reddy (supra), I am of the view that application of Clause (b) of Sub-Rule(1) of Rule 27 of Order 41 is not automatic and cannot be treated to be mere irregularity which can be cured at any point of time. The Appellate Court is under obligation to consider the entire evidence on record and come to an independent finding for arriving at a just decision that such additional evidence is necessary. When this application is caste upon the Appellate Court, this Court is of considered view that the respondent is also entitle to get opportunity to raise his objection against adduction of such additional evidence at the stage of Second Appeal.
4For the reasons stated above, this Court is also of the view that the respondent must get an opportunity to file affidavit-in-opposition against the application under Order 41 Rule 27(1)(b) of the Code of Civil Procedure and the supplementary affidavit thereto.
Accordingly, the respondent is at liberty to file such affidavit-in- opposition within a fortnight and the instant appeal along with the application under Order 41 Rule 27 of the Code of Civil Procedure and the opposition thereto will be finally decided.
List the matter in the Combined Monthly List of January, 2020 under the heading "Final Hearing".
(Bibek Chaudhuri, J.)