Gujarat High Court
Jasmin Minerals Pvt Ltd vs State Of Gujarat & 3 on 18 October, 2016
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A.Y. Kogje
C/CA/13224/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR AMENDMENT) NO. 13224 of 2015
In FIRST APPEAL NO. 888 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
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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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JASMIN MINERALS PVT LTD....Applicant(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR MR ANAND, SENIOR ADVOCATE assisted by MR SATISH A PANDYA,
ADVOCATE for the Applicant(s) No. 1
MS SK VISHEN, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2 - 4
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Page 1 of 27
HC-NIC Page 1 of 27 Created On Wed Oct 19 02:38:38 IST 2016
C/CA/13224/2015 CAV JUDGMENT
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 18/10/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.Y. KOGJE)
1. This application is filed under O-41 Rs-27 and 28 of the Civil Procedure Code praying inter alia for amending the First Appeal to add grounds A to L in the memo of the appeal and for producing additional evidence in the pending First Appeal.
2. The First Appeal is filed challenging the Judgment and Order dated 25.01.2011 passed by the Principal Senior Civil Judge, Palanpur in Special Civil Suit No.33 of 2003. The appeal came to be admitted by order dated 25.08.2011. Pending the appeal, present application is moved contending that the applicant, who is the original appellant, has recently learnt that the respondent, which is a State authority, had withheld relevant documents and withholding of such relevant documents had led to passing of the impugned judgment. It is contended that the documents are relevant and are in fact, available with the State and it was the duty of the State to produce such documents before the trial Judge as the same would have reflected that the stand taken by the respondent authorities before the trial Page 2 of 27 HC-NIC Page 2 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT Court was quite contrary to the stand which emerges on the record of the concerned Department, i.e. Department of Mines and Minerals. It is further contended that had correct stand been taken by the State before the trial Court then the applicant would have succeeded. 2.1 It is contended that the applicant-original appellant had made representation in connection with the subject matter which pertains to the subject matter of the suit. The said representation is dated 07.10.1998 and which came to be rejected by the Deputy Secretary of Mines and Minerals Department on 08.01.1999. This decision dated 08.01.1999 was cancelled by the Minister of Mines and Minerals by its order dated 12.01.1999. It is contended that after the order of the Minister, Deputy Secretary once again considered the representation of the applicant and gave finding that the documents produced by the applicant along with representation, which is in the form of lease deed executed between 'Jagirdar' and one Ramprasad Trivedi and an agreement between said Shri Trivedi and the present appellant by which the Rights were transferred by Shri Trivedi in favour of the applicant, were genuine documents and therefore, finding was given that the benefit under Section 7(2) of the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Act, 1982 (Guj. 8 of 1982) would be Page 3 of 27 HC-NIC Page 3 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT available.
2.2 It is further contended that when the applicant came to know about existence of certain documents with the Department, under Right to Information Act, he made application for receiving such documents, which were received by the applicant on 20.11.2015. It is these documents which the applicants wants to produce as additional evidences pending the First Appeal. The documents, according to the say of the applicant, are (1) legal opinions from the Legal Department, which pertain to the subject matter dated 02.09.1999 and 24.04.2001, (2) copy of the order dated 08.01.1999 of the State Government, (3) copy of the order dated 12.01.1999 passed by the concerned Ex-minister of Mines and Minerals Department and (4) order dated 22.10.1999.
3. Heard learned Senior Advocate Shri M.R.Anand for the applicant, who contends that there should be no objection in allowing this application as the documents which the applicant seeks to produce on record by way of additional evidences are the documents which are in custody of the respondent itself and having been the documents from the custody of the respondent, there cannot be any objection for exhibiting the same as evidences. He submitted that the documents which the applicant wants to produce as additional evidences are Page 4 of 27 HC-NIC Page 4 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT absolutely relevant for the subject matter and therefore, for doing complete justice, these documents need to be exhibited.
3.1 Shri Anand submitted that in pursuance to the direction of the Apex Court, the applicant had made a representation to the respondent State and the same was rejected by the Deputy Secretary, Mines and Minerals Department on 08.01.1999. He submitted that the concerned Ex-minister had cancelled the earlier order dated 08.01.1999 by order dated 12.01.1999. The said order dated 12.01.1999 was not placed before the trial Court. Therefore, the respondent State suppressed the said order dated 12.01.1999 before the trial Court. 3.2 Shri Anand submitted that thereafter the Deputy Secretary, Mines and Minerals Department passed order dated 22.10.1999 in favour of the present applicant and observed that the documents which were produced by the applicant were found genuine and authenticated. The said document dated 22.10.1999 was suppressed by the respondent State before the trial Court. 3.3 Shri Anand submitted that thereafter, the concerned Ex-minister strongly recommended the case of the applicant. In his letters dated 17.08.2000, 20.09.2000 and 14.03.2001, he observed that the applicant Page 5 of 27 HC-NIC Page 5 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT is entitled to his right under Section 7(2) of the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Act, 1982 (Guj. 8 of 1982) and also Section 10 of the Bombay Merge Territory & Area (Jagir Abolition) Act, 1953. These three orders of the Ex-minister of Mines and Minerals Department were suppressed by the respondent State before the trial Court. 3.4 Shri Anand submitted that Special Civil Suit No.33 of 2003 was filed by the applicant before the trial Court on 11.12.2013. All the documents mentioned above are prior to the filing of the said Special Civil Suit. 3.5 Shri Anand submitted that in fact, the respondent State has suppressed the material documents from the trial Court. Therefore, all these material documents are important in favour of the applicant and the respondent State had not produced with malafide and with ulterior motive. All the important and material documents were affected the Judgment and Order passed by the trial Court. Had these material documents been produced before the Hon'ble trial Court, the Judgment and Order would have been in favour of the applicant. He submitted that the applicant applied on 06.11.2015 under the provisions of the Right to Information Act and the same has been received by the applicant on 20.11.2015. Immediately the applicant has filed the present Page 6 of 27 HC-NIC Page 6 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT application for producing certain documents before this Court. It is pertinent to note at this stage that Special Civil Suit No.33 of 2003 which was filed by the applicant wherein the respondent State had filed its written statement at Exhs.1 and 5 on 06.02.2014 at Exh.13. It is crystal clear that the respondent State has suppressed the above mentioned documents from the trial Court.
3.6 Shri Anand relied upon judgment of the Apex Court in the case of Union of India Vs. Ibrahim Uddin & Anr., reported in (2012) 8 SCC, page No.148. He drew attention of the Court to para-52 to contend that the application for taking additional evidence on record filed during the pendency of the appeal is to be at the time of final hearing of the appeal at a stage when after appreciating evidence on record, the Court reaches the conclusion that the additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause.
4. It would be pertinent to point out that the Apex Court in this judgment has proceeded to observe that in case the application for taking additional evidence on record has been considered and allowed prior to hearing of the appeal, the order being product of total and complete non-application of mind as to whether such Page 7 of 27 HC-NIC Page 7 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT evidence is required to be taken on record to pronounce judgment or not remains inconsequential and is liable to be ignored.
4.1 It would be further pertinent to observe that in this every judgment, the Apex Court has observed as under:-
"42. To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage."Page 8 of 27
HC-NIC Page 8 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT 4.2 Therefore, considering the facts of this case, the present judgment would not be of any assistance as the present application is filed at a very belated stage and when existence of evidence which the applicant wants to produce as additional evidence was very much within the knowledge of the applicant.
5. Shri Anand next relied upon judgment of the Apex Court in the case of Jayaramdas & Sons vs. Mirza Rafatullah Baig & Ors., reported in (2004) 10 SCC, page No.507. He drew attention of the Court to paras-8 and 9, which reads as under:-
"8. It is true that additional evidence, whether oral or documentary, is not to be admitted in Appellate Court unless a case for admission thereof is made out by reference to clause (a) or (aa) of sub-rule (1) of Rule 27 or unless the Appellate Court requires such evidence to enable it to pronounce judgment or for any other substantial cause within the meaning of clause (b). A perusal of the documents, brought to our notice by the learned counsel for the appellants and their comparison with the documents already available on record, clearly goes to show that the two are at variance and the effect of such variance determined either way would have a material bearing on the crucial issue arising for decision between the parties.Page 9 of 27
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9. As already pointed out both the sets of documents are certified copies of public documents. The appellants would not ordinarily suspect or doubt the documents where the certified copies of public documents were secured from the public officer having the custody of such public documents. It is only when it came to their knowledge that the certified copies were at variance with the originals or were not complete copies that they thought of securing another set of certified copies and then seeking leave of the Court for producing the certified copies obtained by them as an additional evidence in Appellate Court. The case of the appellants for production of additional evidence falls within clause (aa) of sub-rule (1), abovesaid. It would have been better if such ground was set out specifically in the application so that the opposite party could have had an opportunity of meeting the plea and the First Appellate Court could also have had the provisions of clause (aa) of sub-
rule (1) in its mind for dealing with the
appellants' application. However, still we
feel that the ends of justice demand the
additional evidence being allowed to be
produced de hors the deficiency in the
application filed by the appellants."
6. In the instant case, as is pointed out, evidence which is sought to be produced as additional evidence was very much within the knowledge of the applicant. Not only that, the impugned Judgment of the Page 10 of 27 HC-NIC Page 10 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT trial Court on page Nos.36 and 37 of the paper-book refers to these documents and therefore, the applicant was every much in the knowledge of the existence of these documents and therefore, even when attention of the trial Court was drawn to two of such documents, such documents would lose its category as additional evidence. As is observe in this judgment, the documents being order dated 12.01.1999, which the applicant seeks to produce on record, appears to be given Exh. No.89.
7. Shri Anand next relied upon judgment of the Apex Court in the case of Premier Automobiles Ltd., Bombay Vs. Kabirunissa & Ors., reported in 1991 Supp. (2) SCC page No.282 to contend that the application for additional evidence should be taken up at the time of final hearing.
8. This judgment would not support the contention of the petitioner as in the facts of the case before the Apex Court, the application for additional evidence under O-41 R-27 had remained un-disposed without dealing with the application or the contention regarding additional evidence. It was in that factual scenario that the Apex Court, finding that the additional evidence was of considerable importance, the appellate Court ought to have adverted to it and thereafter, the Apex Court was pleased to remand the matter back to the concerned Court. Page 11 of 27 HC-NIC Page 11 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT
9. Shri Anand then relied upon judgment of the Apex Court in the case of K.R.Mohan Reddy Vs. Net Work Inc. represented thgrough MD, reported in (2007) 14 SCC, page No.257. He drew attention of the Court to paras-16, 17 and 19, which read as under:-
"16. The respondent in its application categorically stated that the books of accounts had been misplaced and the same were discovered a few days prior to the filing of the said application while the office was being shifted. The High Court, unfortunately did not enter into the said questions at all. As indicated hereinbefore, the High Court proceeded on the basis as if clause(b) of Sub-rule (1) of Rule 27 of Order XLI of CPC was applicable.
17. It is now a trite law that the conditions precedent for application of clause (aa) of Sub-rule (1) of Rule 27 of Order XLI 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 ingredients or conditions precedent mentioned therein are satisfied. On the other hand clause(b) to Sub- rule (1) of Rule 27 of Order XLI of CPC 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 appellant was necessary. The fact that the High Court failed to do so, in our opinion, Page 12 of 27 HC-NIC Page 12 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT amounts to misdirection in law. Furthermore, if the High Court is correct in its view that the plaintiff-respondent had proceeded on the basis that the suit in its entirely based on a cheque, wherefor, it was not necessary for it to file the books of accounts before the trial Court, finding contrary thereto could not have been arrived at that the same was in fact required to be proved so as to enable the appellate Court to arrive at a just conclusion.
19. The appellate Court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial Court, but it will be different if the Court itself require the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the Court. But mere difficulty is not sufficient to issue such direction. While saying so, however, we do not mean that the Court at an appropriate stage would be precluded from considering the applicability of clause (b)."
10. As against this, learned AGP Ms.Sangeeta Vishen appearing for the respondents submitted that the opening expression of the provision of Order 41 Rule 27 of the Code of Civil Procedure, 1908, is couched in a negative manner and it envisages that 'a party shall not be entitled to produce additional evidence', meaning thereby Page 13 of 27 HC-NIC Page 13 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT it prohibits a party from producing any additional evidence in a routine manner. However, twin fold exception has been carved out. Firstly, despite having exercised due diligence, the documents, which the party desires to produce, were not within its knowledge and secondly, having exercised due diligence, a party could not procure the documents. The party is under an obligation to fulfill the aforesaid requirement by establishing the same. As is discernible from the observations made by the learned trial Court (Pl. see page 37 of the Judgment under challenge), the documents which the applicants are seeking to produce along with the present Civil Application, were very much within its knowledge.
10.1 Learned AGP submitted that the edifice on which the Civil Application is based, is that the State Government has suppressed material documents and have not produced the same on the record of the learned trial Court and as a result whereof, the applicants have suffered rejection of the suit. She submitted that in this behalf, it may be mentioned that the documents, which the applicants are seeking to produce, as aforesaid, were very much within the knowledge inasmuch as, the applicants not only participated in the proceedings conducted by the Deputy Secretary but Page 14 of 27 HC-NIC Page 14 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT thereafter issued reminder letters followed by notices to the then Chief Secretary of the State to take appropriate decision on the representation of the applicant. 10.2 Learned AGP submitted that pertinently, the requirement under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for entertainment of the application for bringing the said document is, not "Suppression" but the party has to prove the exercise of due diligence, as regards the knowledge of the documents. The requirement under Order 41 Rule 27 are not present and are not even raised by the applicant in the captioned Civil Application.
10.3 Learned AGP submitted that the suit was filed by the applicant in the year 2003 against the State Government. As per the golden Rule of evidence, the onus was on the applicant to prove its case. Despite the fact that all the documents annexed to the present Civil Application were very much within the knowledge of the applicant, it chose not to produce the same on record of the learned trial Court and rightly so, in view of the documents having no bearing on the issue on hand. It may be noted that all throughout, the opportunities were very much available to the applicant for producing the documents, however, the applicant failed to do so. Page 15 of 27 HC-NIC Page 15 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT 10.4 Learned AGP submitted that despite there being the opportunity available to the applicant of amending pleadings and producing evidence in support of their pleadings, the applicant filed closing pursis vide Exh.144 and prayed for closing the stage of evidence. Recently, after lapse of almost more than twelve years from the date of filing the suit, that the applicant realized that the documents are an important pieces of evidence and as late as in the year 2015, applied under provisions of the Right to Information Act, 2005 seeking various documents from the State Government which were all supplied to it. Further, from the averments made herein, it clearly goes to suggest that the present Civil Application is grossly belated and without any substance. 10.5 Learned AGP submitted that the grievance of the applicant is that despite the order having been passed by the Hon'ble Minister dated 12.1.1999 and other orders, the State Government did not take any decision of granting mining lease in favour of the applicant. As is discernible from the documents annexed to the affidavit filed on behalf of the State Government ,final decision was taken by the then Hon'ble the Chief Minister on 16.10.2000 and had concurred with the decision dated 8.1.1999 taken by the Deputy Secretary rejecting the representation of the applicant. Not only this, on Page 16 of 27 HC-NIC Page 16 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT resubmission of the file, once again on 19.11.2001, the then Hon'ble the Chief Minister concurred with the decision dated 16.10.2000 of the then Hon'ble Chief Minister and the decision dated 8.1.1999 of the Deputy Secretary. It was expected of the applicant to have produced along with the Civil Application all the orders passed by the State Government viz. the orders dated 16.10.2000 as well as 19.11.2001 of the then Hon'ble the Chief Minister rejecting the representation of the applicant, having not done so the applicant as aforesaid is guilty of suppressing the material fact. 10.6 She submitted that in this view of the matter, the documents which the applicant is seeking to produce along with the captioned Civil Application have no relevance and bearing upon the claim laid, seeking benefit under provision of Section 7 of the Act of 1982. Under the circumstances, merely because the applicant is of the opinion that the documents annexed to the Civil Application are important pieces of evidence, that does not render the documents important. Thus, on both the counts viz. (i) the applicant has not fulfilled the requirements under Order 41 Rule 27; and (ii) the documents annexed along with the Civil Application have no relevance or bearing for determining the controversy or the issue raised in captioned First Appeal, the Civil Page 17 of 27 HC-NIC Page 17 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT Application deserves to be dismissed.
10.7 She submitted that the Parliament enacted the Right to Information Act, 2005 and the applicant if at all was interested ought to have applied for the said documents in the year 2005 itself, however, the applicant did not do so. Secondly, in past, the learned trial Court decreed the suit in favour of the applicant which judgment was challenged by the State Government before this Hon'ble Court by filing First Appeal No.2191 of 2005. While disposing of the said First Appeal in favour of the State Government, this Hon'ble Court, was kind enough to direct the learned trial Court to decide the suit afresh, keeping open the liberty in favour of the State Government as well as the applicant to amend the pleadings and lead evidence in support of their pleadings. The relevant para of the judgment dated 12.4.2010 passed by this Hon'ble Court in First Appeal No.2191 of 2005 is reproduced hereunder for ready reference:
"Having heard learned Advocates for both the parties, we are of the considered opinion that it would be in the interest of justice if the matter is remanded back to the Trial Court for fresh consideration. This is broadly agreed by both the counsels. Accordingly, we set aside the impugned judgment and decree and remand the case to the Trial Court for a fresh decision.Page 18 of 27
HC-NIC Page 18 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT Both the parties will be at liberty to file amendments to their pleadings, if they consider that appropriate and necessary. Since fresh pleadings are permitted, it is needless to say that the parties will also be allowed to lead evidence in support of their pleadings. The Trial Court shall after considering the pleadings of parties and evidence led by them conclude the trial as expeditiously as practically possible and in accordance with law."
10.8 In this behalf, it is pertinent to mention that in past, the applicant had preferred writ petition being Special Civil Application No. 4130 of 1997, which came to be dismissed by this Hon'ble Court vide a detailed judgment dated 1.8.1997, categorically concluding that the applicant could not prove its case under the provisions of Section 7 of the Act of 1982. Being aggrieved by the said judgment dated 1.8.1997 of the learned single Judge, the applicant preferred Letters Patent Appeal No.1052 of 1997 before this Hon'ble Court which also came to be dismissed by the Hon'ble Division Bench vide judgment dated 14-18.11.1997. The applicant preferred Special Leave to Appeal (Civil) No.23793 of 1997, which also came to be dismissed. The extract of the order dated 13.11.1998 passed by the Hon'ble Supreme Court rejecting the Special Leave to Appeal is reproduced hereunder for ready reference:
Page 19 of 27
HC-NIC Page 19 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT "Mr. Kapil Sibal, learned counsel for the petitioner, states that the petitioner has made a representation to the State Government, but the State Government has felt unable to consider it because of an interim order of this Court. The State Government is free to consider the representation made by the petitioner unrestrained by any interim order of this Court. Mr. Adhyaru states that this representation shall be considered and decided by the State Government within 3 weeks. For the period of three weeks there shall be an order of status-quo.
On the application of the learned counsel for the petitioner, the SLP is dismissed as withdrawn in view of the aforesaid order."
10.9 Learned AGP submitted that it is pertinent to mention that the erstwhile lessee one Shri Ramprasad N. Trivedi had also preferred the writ petition being Special Civil Application No.5137of 1991, which came to be withdrawn. In this background, if the claim of the erstwhile lessee has not been accepted and rejected by this Hon'ble Court, the subsequent lessee cannot have a better title then the original lessee. The relevant extract of the order dated 7.8.1996 passed by this Hon'ble court in writ petition being Special Civil Application No.5137 of 1991 is reproduced hereunder for ready reference:-Page 20 of 27
HC-NIC Page 20 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT "This petition stands disposed of as withdrawn at the instance of the learned Advocate Shri B.G. Patel for the petitioners. Learned Advocate Shri B.G. Patel clarifies that the he has instructions from a nephew of petitioner No.1 (the sole surviving petitioner now) that no litigation with respect to the subject- matter of this petition or incidental thereto is pending in any court. Learned Advocate General Shri Shelat for respondents Nos. 1, 2 and 3 has no objection against withdrawal of this petition in view of the clarificatory statement made on behalf of the petitioners. Rule is accordingly discharged with no order as to costs. The interim relief stands vacated."
10.10 By filing the captioned Civil Application, heavy reliance has been placed by the applicant on the order dated 12.1.1999 of the Hon'ble the Minister. It is required to be noted that by no stretch of imagination, the notings dated 12.1.1999 of the Hon'ble Minister can be construed as order conferring any right in favour of the applicant. It is a well settled proposition of law that any order not passed in accordance with the provisions of Article 166(1) of the Constitution of India, confers or creates any right in favour of the party. She submitted that the Apex Court, has in the case of State of Bihar & Ors. Vs. Kripalu Shankar & Ors., reported in (1987) 3 SCC 34 observed in para 17 as under:-Page 21 of 27
HC-NIC Page 21 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT "17. In the case of Bachhittar Singh V. State of Punjab, a Constitution Bench of this Court had to consider the effect of an order passed by a Minister on a file, which order was not communicated. This Court, relying upon Article 166(1) of the Constitution, held that the order of the Revenue Minister, PEPSU could not amount to an order by the State Government unless it was expressed in the name of Rajpramukh as required by the said article and was then communicated to the party concerned.
This is how this Court dealt with the effect of the noting by a Minister on the file:
The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by clause (1) of Article 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones."Page 22 of 27
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11. Considering the aforementioned fact situation, this Court is of the considered view that the application filed by the applicant for adducing additional evidence under O-41 R-27 is at a very belated stage. We hereby take note of the fact that the present appeal is in fact second round of First Appeal before this Court. It would be pertinent to notice that First Appeal No.2191 of 2005 was filed before this Court against judgment and decree in Special Civil Suit No.33 of 2003 and by order dated 12.04.2010, this Court had remanded the case back to the trial Court for fresh consideration by holding as under:-
"Having heard learned Advocates for both the parties, we are of the considered opinion that it would be in the interest of justice if the matter is remanded back to the Trial Court for fresh consideration. This is broadly agreed by both the counsels. Accordingly, we set aside the impugned judgment and decree and remand the case to the Trial Court for a fresh decision. Both the parties will be at liberty to file amendments to their pleadings, if they consider that appropriate and necessary. Since fresh pleadings are permitted, it is needless to say that the parties will also be allowed to lead evidence in support of their pleadings. The Trial Court shall after considering the pleadings of parties and evidence led by them conclude the trial as expeditiously as practically possible and in accordance with Page 23 of 27 HC-NIC Page 23 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT law."
11.1 Thus, in the first round of litigation itself, the Court had granted liberty to the applicant to make fresh pleadings and lead evidence. Despite this position, the applicant has approached this Court at this stage. Hence, the application is belated. 11.2 O-41 R-27 makes it obligatory on the party seeking to produce additional evidence to establish that the evidence which such party seeks to produce as additional evidence was not within his knowledge or could not, after exercise of due diligence, able to produce when the decree appealed was passed. On going through the record of the case, it is apparent that the applicant was very much aware of the existence of the documents which the applicant seeks to adduce as additional evidence. The observations made in the judgment of the trial Court on pages-35 to 37 would clearly indicate that the documents were very much within the knowledge of the applicant. The applicant is unable to satisfy this Court about due diligence on his part to procure the documents even when the suit was remanded to the trial Court and was pending decision.
11.3 The trial Court has framed following issues:-
"(1) Whether the plaintiff proves that the Page 24 of 27 HC-NIC Page 24 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT Virampur Jagiri was Proprietary Jagiri?
(2) Whether plaintiff proves that by virtue of
registered lease deed dated 7/12/81,
Ramprasad Trivedi had acquired the mining rights for a period of 30 years in the suit land?
(3) Whether plaintiff that by virtue of
registered agreement dated 8-12-93,
plaintiff has acquired the mining rights in the suit land?
(4) Whether plaintiff proves that plaintiff has spent more than 80 lacs for carrying on mining activities /operations in or upon the suit land?
(5) Whether the plaintiff proved that the mining right of the plaintiff have been recognized and accepted by the defendants as defendants have accepted royalty and issued triplicate passbook to Ramprasad Trivedi and thereafter to this plaintiff as arrears in para 14 to 16 of the plaintiff?
(6) Whether defendant proves that plaintiff's
Page 25 of 27
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C/CA/13224/2015 CAV JUDGMENT
suit is not maintainable as statutory
notice u/s.80 of C.P.C. was not given to the government prior to institution of suit?
(7) Whether plaintiff is entitled to the
relief's of declaration and relief of
Prohibitory injunction and mandatory
injunction giving direction to the
defendants as prayed for in para 31(b) to 31(c) as prayed for in the plaint?
(8) What Order and Decree?"
11.4 Considering the issues framed by the trial
Court and contentions now raised in the Civil Application for adducing additional evidence, which are legal opinion and a decision of the Minister, this in itself would not constitute relevant evidence for the purpose of deciding the issues. Hence, this Court holds that the evidences sought to be adduced does not appear to be evidence relevant for the purpose of subject matter of the suit and consequently the appeal.
11.5 With regard to contentions raised by Shri Anand for the applicant that the documents which are sought to be adduced as additional evidence are from the Government record and therefore, there should not be any objection Page 26 of 27 HC-NIC Page 26 of 27 Created On Wed Oct 19 02:38:38 IST 2016 C/CA/13224/2015 CAV JUDGMENT or opposition by the respondent in supplying the same, such argument of Shri Anand would not find favour with this Court at this stage as Code of Civil Procedure is a complete code in itself. It provides for a situation where a document is in possession of the opposite party then the other party can resort to the provisions of Code of Civil Procedure to see to it that the party in whose possession such evidence is there can be compelled to produce the same before the trial Court. It appears that the applicant has not resorted to any such application at the relevant point of time, despite being fully aware of existence of such documents.
12. In view of aforementioned facts, the applicant fails to make out the circumstances necessary for exercising powers of this Court under O-41 R-27. The application is therefore dismissed. Rule is discharged. No order as to costs.
(S.R.BRAHMBHATT, J.) (A.Y. KOGJE, J.) SHITOLE Page 27 of 27 HC-NIC Page 27 of 27 Created On Wed Oct 19 02:38:38 IST 2016