Karnataka High Court
Thimmappa Basappa Kurahatti vs Somappa Venkappa Nagnur on 11 February, 1988
Equivalent citations: ILR1988KAR1654, 1988(1)KARLJ402
JUDGMENT Shyamasundar, J.
1. This Miscellaneous Second Appeal is by the plaintiff in O.S.No. 91 of 1981 on the file of the Principal Munsiff, Gadag, aggrieved by the Judgment of the learned Civil Judge, Gadag dated 20-6-1986 made in R.A. No. 11 of 1983 allowing the said appeal and setting aside out-right the judgment and decree made by the learned Munsiff in his favour in the aforesaid suit O.S. 91 of 1981 and further making a remit of the entire case back to the learned Munsiff for a fresh disposal according to law after giving opportunity to both parties to lead evidence if any.
2. It has to be mentioned, the plaintiff had sued the defendant in O.S. 91 of 1981 calling upon him to convey back to him a piece of property that had been alienated in favour of the defendant under a sale deed dated 7-7-1978 for consideration. The plaintiff alleged that at the time of the transaction it was understood and infact there was an agreement that subsequently the properties should be reconveyed to him subject to the stipulations arrived at in regard to price etc. He complained that the defendant having accepted the aforesaid arrangement to reconvey the properties subsequently had now receded from his undertaking and was refusing to comply with the request to reconvey the property and therefore sought a decree commending the defendant to specifically perform the solemn agreement between the parties as aforesaid.
3. The defendant upon entering appearance filed a written statement in which he denied any agreement or understanding between the parties for reconveying of properties subsequent to the sale and further pleaded the plaintiff who was harried very much by his creditors had sought his assistance in lightening his burden and, therefore, it is the transaction referred to supra had been entered into help sorting out the financial commitments of the plaintiff and had finally shown liquidated completely. He denied that he was under any obligation to reconvey the property and asserted that the transaction between them was an out and out sale that admitted of no different complexion. In that view of the matter, he sought for a dismissal of the suit. On the aforesaid stand, he sought for dismissal of the plaintiff's suit.
4. The learned Munsiff raised a number of issues on which both sides went to trial producing in turn all evidence by examining few witnesses on their behalf. At the end of the trial the learned Munsiff on a consideration of the evidence produced by both sides proceeded to accept the plaintiff's case of being entitled to a specific performance of the agreement vis-a-vis the transaction dated 7-7-1978 and thus decreed the plaintiff's suit in toto and as prayed for.
5. The defendant who had suffered the aforesaid decree preferred an appeal to the Civil Judge, Gadag in R.A.11 of 1983 to which there is already advertance and along side the appeal he also purported to make an application under Order 41 Rule 27 C.P.C. seeking leave to adduce additional evidence alleging inter alia that the evidence which he now sought to tender could not be tendered before the trial Court, since the documents to be produced in support thereof had been misplaced and could not be with due diligence traced, but subsequent to the dismissal of the suit he was able to trace them and hence sought for an opportunity to mend his fence at the appellate stage. The plaintiff in due course filed his objections to the said application apart from questioning the recording of the evidence sought to be produced before the Appellate Court so belatedly, he also challenged the statement of the defendant that the evidence which he was now seeking to tender could not be tendered before the trial Court for the reasons mentioned by him. In other-words he put to proof the allegations of the defendant that the documents he wanted to produce now had been misplaced and could not be traced despite exercise of due diligence and, therefore he was not able to produce them before the trial Court.
6. The learned Civil Judge, heard both sides, but it is not clear from his judgment whether he had heard them on the merits of the appeal as well, but it is obvious - that he had heard them in regard to the application filed by the defendant seeking leave to adduce additional evidence. Thereafter he pronounced an order on the 20th of June, 1986 allowing the said appeal and setting aside the judgment and decree of the Munsiff and remitting the case back to the Munsiff for de novo disposal in accordance with law after giving both sides opportunity to lead evidence if any. Curiously he did not direct the Munsiff to record in particular the evidence which the defendant wanted to produce in the Appellate Court itself. He made no advertance to the endeavour made by the defendant to produce additional evidence before him and in that behalf he did not give any specific instructions to the learned Munsiff.
7. It is to this order the plaintiff, in my view, justly takes exception and on his behalf Shri Mandappa who appears in support of the Appeal maintains that the order of the learned Civil Judge, suffers and is totally vitiated for a variety of reasons. In the first instance it is pointed out that it was the duty of the Appellate Court to have weighed the evidence on record and to check it with the conclusions drawn by the trial Court on the aforesaid evidence and thereafter should have arrived it at its own conclusions as to the appropriateness or correctness of the finding recorded by the trial Court. Without venturing upon that exercise, the learned Civil Judge had blind-foldedly made an order of remand succumbing to the temptation of disposing of an appeal easily by latching on to an application made by the defendant seeking leave to produce some evidence at the Appellate stage paying scant regard to the requirements of law viz., of Order 41 Rule 27 or to Order 41 Rule 23 thereof. In this connection Mr. Mandappa, placed strong reliance on two Judgments of this Court in AKKANAGAMMA v. NAGESHWARAIAH, 1968(1) Mys. L.J. 288 and in CHINNAIAH SHETTY v. BASAPPA, 1977(1) KLJ 31.
8. In the first of these cases His Lordship Mr. Justice Narayana Pai (as he then was) held that the source of the power to make a remand was found only in Order 41 Rule 23, and not in any other source and that a remand can be resorted to only after examining the case on merits and after fully hearing the appeal; and that wherever there was sufficient evidence on record to enable the Appellate Court to come to a just and satisfactory conclusion on the points in controversy there was no occasion whatsoever for making an order of remand. In the other case viz., Chinnaiah Shetty v. Basappa, 1977(1) KLJ 31 His Lordship Mr. Justice Venkataswami (as then was) reiterated almost the same principles sounding inter alia a note of caution regards permission to lead evidence at the Appellate stage and said that it should - not become a pretext for making an order of remand which could be done only after examining the reasons recorded by the trial Court in support of its order. The aforesaid decisions undoubtedly support the contentions of learned Counsel.
9. But what really strikes me as extremely odd is the exercise by the learned Civil Judge his powers under Order 41 Rule 27, without as much as even a casual cursory advertance to the said provisions which lay down certain limitations under which the power to take additional evidence by the Appellate Court can be exercised and also lays down further the mode of taking such evidence. A reading of the learned Civil Judge's order makes it evident the Civil Judge had not merely failed to satisfy himself that there was any need for additional evidence to be produced but he had committed a serious error in overlooking the provisions of Order 41 Rule 28 prescribing the mode for taking additional evidence.
10. Order 41 Rule 27 C.P.C. reads as follows :
"Production of additional evidence in Appellate Court.
xxxx xxxx xxxx xxxx 27(1)(b) The party seeking to adduce additional evidence satisfies the Appellate Court that such evidence, notwithstanding the exercise of due diligence was not within his knowledge or could not be produced by him at or before the time when the decree under appeal was passed."
(Amended vide Act 31 of 1973)
11. Order 41 Rule 28 provides for the mode of taking additional evidence in the following terms:
"Rule 28. Mode of taking additional evidence.
Wherever additional evidence is allowed to be produced the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court."
It may be noticed from the scheme of the aforesaid provisions that ordinarily nobody will be entitled to produce additional evidence whether oral or documentary in the Appellate Court, but can do so subject to the conditions enumerated in Sub-clauses (a) (aa) and (b) of Order 41 Rule 27 of the C.P.C. Under the Karnataka Amendment there is even a slight departure from the corresponding provisions of Sub-clause (aa) of Order 41 Rule 27.
12. A reading of these provisions leave little doubt that leading of further evidence before the Appellate Court is not as a matter of right, but can be done only under the circumstances enumerated therein and if the ground pleaded is the one coming under Order 41 Rule 27(1)(b)of the Karnataka Amendment Act (31 of 1973) then the party seeking to adduce additional evidence must satisfy the Appellate Court that such evidence could not be produced before the trial Court not with standing the exercise of due diligence or that it was not within his knowledge and therefore could not be produced at the time the decree under appeal was passed.
13. In this case the simple explanation offered by the defendant on this crucial matter in the course of his application under Order 41 Rule 27 was just that the documents now produced could not be traced having been misplaced and with the due diligence of the appellant they were now traced, and because those documents could not be produced earlier the trial Court has held against the defendant on a vital aspect of the case and, therefore, it was now necessary to produce the same now. This was the sum and substance of the case put-forward in support of the plea for tendering additional evidence before the Appellate Court. It may be noticed the explanation apart from being extremely vague and bald, does not deny that the defendant had knowledge of the existence of these documents and the fact that they were now being produced by him indicated that they were in his custody. He never stated they were lying with somebody else or were lying in some place to which he had no access and in short he threw no light as to how he discovered the documents at the present juncture. The plaintiff had opposed this application and had filed objections in which he denied that those documents had either been misplaced or could not have been produced by the defendant at the relevant time by exercise of due diligence. He put the defendant to strict proof. The documents produced are stated to be receipts indicating that the defendant had paid some monies to the creditors of the plaintiff subsequent to the said suit transaction. He now wanted to rely on these documents, obviously to establish the bonafide nature of the said transaction indicating to some extent that the plaintiff who was under Some kind of financial duress had sold the property to him that he could absolve himself of the commitments to his creditors. Some of the vouchers are stated to have been issued by a Bank and there can be no doubt that the defendant who claims to have paid monies on the plaintiff's account to the latters creditors certainly had knowledge of what he had done. Under the circumstances the omission to produce this material at the trial stage itself is some-what telling. But nonetheless the learned Civil Judge, does not appear to look at the move to produce the documents before him after having failed to produce them before the trial Court. The power of the Civil Judge to receive additional evidence being limited and circumscribed by the very terms under which the power was to be exercised under Order 41 Rule 27, then in accepting the defendant's application made under Order 41 Rule 27 C.P.C. without due regard to the constraints operating against the acceptance of such an application, it seems to me, the learned Civil Judge, had grossly erred in blind-foldedly acting upon the application made by the defendant as aforesaid.
14. On this aspect of the matter the learned Civil Judge, observes :
"The defendant has admitted the execution of agreement but contended that he has executed as security for discharge of loan incurred by plaintiff as per the say of elders. The receipt and other documents produced by defendant in this appeal are unconnected to suit transaction. They are riot pertaining to suit at all. They are not documentary evidence pertaining to this suit and as such suit cannot be remanded to Lower Court by setting aside the Judgment and Decree. The appeal may be disposed off on merit.
There is a substance in the argument of Shri T.D. Patil. Advocate for the appellant-defendant. The defendant has contended in his W.S. that he has executed Lekha which is alleged to be an agreement of reconveyance for the security to discharge the debt incurred by plaintiff with Manohar Talawar & others."
15. In his objections the plaintiff had denied the defendant's case that the documents were misplaced and that he had averred that the defendant had not assigned sufficient reasons for the non production of the same at the relevant time although they were in his custody and the cause now shown was not good enough to account for the omission or the lapse by the defendant.
16. I really do not see what else the plaintiff could have said in his objections in denying the defendant's entitlement to lead additional evidence before the learned Civil Judge. The very substratum of the defendant's application had been disputed and the assertion that the defendant had mis-placed the documents had been denied but yet the learned Civil Judge thinks that all this was in vain indicating clearly that he had not even cared to peruse either the application made by the defendant or the objections of the plaintiff in that behalf. In my view, even if the plaintiff had not filed any objections to the application, an order could not have been made since on the allegation made in the application itself merely mouthing the language of the Section could not have induced any satisfaction in the mind of the learned Judge, in furtherance to which he could act on the basis of that application.
17. Be that as it may, what is astounding further is the step taken by the Civil Judge to set at naught wholly the judgment and decree of the Munsiff and to order a fresh trial, all in the context of the application made by the defendant under Order 41 Rule 27 C.P.C., This he could not have done and it was wholly impermissible since Rule 28 of Order 41 prescribes the mode for taking additional evidence or to have it recorded by the trial Court or any other Court subordinate to it and there after to have the evidence so recorded to be sent back to it so that on the basis of such additional evidence the appeal could be finally disposed off. That an open or general order of remand could not be made on the basis of an application under Order 41 Rule 27 C.P.C. is made clear by the decision of the Supreme Court in BOMBAY CORPORATION v. PANCHAM, . The relevant enunciation made by Their Lordships is succintly set-out in Head Note (b) to the following effect :
"Under Order 41 Rule 27 the Appellate Court has the power to a How 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 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 power under clause (b) of sub Rule (1) of Rule 27 of Order 41 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. But the Appellate Court cannot order a fresh trial. Such a course is not permissible under Order 41 Rule 27 CPC, when it has not provided under Order 41 Rule 25 or remand the case under Order 41 Rule 23."
The clear pronouncement of the Supreme Court as above said leaves little doubt that in the guise of giving leave to the defendant to adduce additional evidence, the Court could not have made an order of remand which could be done only under Order 41 Rule 23 C.P.C. or under Order 41 Rule 25 C.P.C. and in this case, it is clear, the Court was not acting under either of those provisions.
18. It is therefore rightly urged that in any view of the matter the order of remit made by the learned Civil Judge is throughly unsustainable and cannot in law be countenanced.
20. For the reasons aforesaid this appeal succeeds and is allowed. The order of the learned Civil Judge made in R.A.No. 11 of 1986 on the 20th of June, 1986 is hereby set aside and the appeal itself remitted back to the Civil Judge, for disposal on its merits, considering inter alia the application made for leading additional evidence under Order 41 Rule 27 C.P.C. bearing in mind the observations made hereinbefore with regard to exercise of power for recording additional evidence as enjoined by Order 41 Rules 27 and 28 C.P.C. No costs.