Allahabad High Court
Jamal Ahmad Khan (Order 41 Rule 27 ... vs Smt Shamim Jahan on 12 December, 2018
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 19 Case :- MISC. SINGLE No. - 29738 of 2016 Petitioner :- Jamal Ahmad Khan (Order 41 Rule 27 C.P.C.) Respondent :- Smt Shamim Jahan Counsel for Petitioner :- Km. Vishwa Mohini,Ashutosh Rai Sharma,Vimal Kumar Counsel for Respondent :- Anand Sharma ::::::: Hon'ble Abdul Moin,J.
1. Heard Sri Vimal Kumar, learned counsel for the petitioner and Sri Ashutosh Mishra, learned counsel appearing for the respondent.
2. The present petition, under Article 227 of the Constitution of India, has been filed praying for the following reliefs:-
(i) The impugned order and formal order dated 23.11.2016 passed in R.C.A. No.129/2010 in re: Jamal Ahmad Khan vs. Smt. Shamim Jahan by Additional District Judge/Special Judge (P.C. Act) Court No.1, Lucknow rejecting application No.A-38 filed by the petitioner Under Order- 41 Rule 27 C.P.C. may kindly be set-aside and the application under order 41 Rule 27 may kindly be remanded for disposal according to law laid down in 2012(8) S.C.C. 148.
(ii) That the further proceedings of R.C.A. No.129 of 2010 in re: Jamal Ahmad Khan Vs. Smt. Shamim Jahan pending before Additional District Judge/Special Judge (P.C. Act) Court No.1, Lucknow may kindly be stayed during the pendency of the petition.
(iii) Any other relief deemed fit and proper may kindly be passed in favour of the petitioner to protect his legal rights.
(iv) The cost of the petition may kindly be allowed in favour of the petitioner against the Opp. Party."
3. The case set forth by the petitioner is that a Regular Suit No.304 of 2006 In re: Smt. Shamim Jahan Vs. Jamal Ahmad Khan was filed for permanent injunction in respect of House No.450/128/22-T situate in Mohalla Muftiganj, Lucknow which was in the ownership and possession of the petitioner herein. After contest, the said suit was decreed by the learned Civil Judge (Senior Division), Mohanlalganj, Lucknow restraining the petitioner herein from entering in the said house vide judgment and order dated 31.8.2010. Being aggrieved with the said judgment and order, a Regular Civil Appeal No.129 of 2010 was filed by the petitioner herein challenging the decree of the trial Court.
4. During pendency of the aforesaid appeal, an application numbered as A-38, dated 6.10.2016, was filed under Order 41 Rule 27 of the C.P.C. for producing additional evidence. It is contended by the learned counsel for the petitioner that no objection to the said application was filed by the respondent. However, learned court below rejected the application vide order dated 23.11.2016 on various grounds. Copy of the said order dated 23.11.2016 is Annexure-5 to the petition. Being aggrieved with the said order, the present petition has been filed.
5. Upon filing of the petition and after exchange of pleadings, this Court vide order dated 25.1.2017 had recorded the undertaking of the learned counsel for the parties to get the matter, which was fixed on that date before the court below, adjourned and to get some other date fixed after two weeks. The said undertaking was extended from time to time and is still operating.
6. Learned counsel for the petitioner while raising a challenge to the order dated 23.11.2016 submits that there was requirement to file the application numbered as A-38 for filing of additional evidence under the provisions of Order 41 Rule 27 of C.P.C. before the appellate Court inasmuch as it was contended that due to an inadvertent mistake of the learned counsel for the petitioner appearing before the appellate Court, though certified copy of the documents being six in number were filed before trial Court yet out of six documents, certified copy of only four documents were filed while xerox copy of two documents were filed. This mistake was noticed when the appeal was being prepared for final arguments on 26.9.2016 as the original documents i.e. certified copy of the aforesaid two documents were found in the possession of the learned counsel for the petitioner appearing before the appellate Court. In these circumstances an application under Order 41 Rule 27 of C.P.C. dated 6.10.2016 was filed before the court below indicating the aforesaid circumstance and contending that for the fault of the counsel the litigant may not suffer. The learned lower court however rejected the application filed under Order 41 Rule 27 of C.P.C. vide order dated 23.11.2016 by indicating that (a) the case was finally decided on 31.8.2010 and the documents were filed by the petitioner three years earlier which indicated that at the time of argument before the learned trial Court, the learned counsel for the petitioner was fully aware of the said defect and deliberately did not file the original documents and (b) no efforts were made to file the original documents before the trial Court. Taking into consideration the said two points, it was held by the court below that the requirements of Order 41 Rule 27 of the C.P.C. were not satisfied and consequently the application was rejected.
7. Learned counsel for the petitioner further submits that once the aforesaid six documents were in his possession and had been filed before the trial Court of which two documents were xerox copy and the certified copy thereof were in possession of the learned counsel for the petitioner, consequently the petitioner cannot be punished for the fault of his counsel. It is also argued that it is not the case that petitioner was trying to bring in some new additional evidence, rather he was only trying to remove the defect of bringing on record the certified copies of the orders xerox copies of which were already filed before the trial Court. It is also contended that the impugned order passed by the court below while rejecting the application vide order dated 23.11.2016 does not indicate patent application of mind to the provisions of Order 41 Rule 27 of C.P.C. as well as the law laid down by the Hon'ble Supreme Court in the case of Union of India vs. Ibrahim Uddin and another reported in (2012)8 SCC 148 and judgment of this Court in the case of Smt. Anita Sharma and others vs. Om Prakash Batra and another reported in 2015(33) LCD 1050.
8. Placing reliance, on the judgment of Hon'ble Supreme Court in the case of Ibrahim Uddin (supra), it is contended that the Hon'ble Supreme Court has summed up the issue pertaining to filing of additional evidence wherein the Hon'ble Supreme Court has held that an application for taking additional evidence on record at a belated stage though cannot be claimed as a matter of right yet the Court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The Hon'ble Supreme Court has held that discretion is to be exercised by the court judicially taking into consideration (a) the relevance of the document in respect of the issues involved in the case, (b) the circumstances under which such an evidence could not be led in the court below, (c) whether the applicant had prosecuted his case before the court below diligently and (d) whether such evidence is required to pronounce the judgment by the appellate Court. It is only when the court concerned comes to the conclusion that the application filed comes within the four-corners of the statutory provisions then the evidence may be taken on record. Placing reliance on the said conclusion so drawn by the Hon'ble Supreme Court, it is contended that none of the provisions enunciated by the Hon'ble Supreme Court has been considered or addressed to by the court below while passing the impugned order dated 6.12.2016 and thus it is contended that the impugned order runs contrary to the settled proposition of law laid down by the Hon'ble Supreme Court and the same merits to be set-aside on this ground alone.
9. Placing reliance on the judgment of this Court in the case of Smt. Anita Sharma (supra), it is argued that the said application for taking additional evidence was to be considered at the time of final hearing of the appeal but the court below has proceeded to reject the said application even before the final hearing could take place. Thus, it is contended that the impugned order is patently bad on this score also.
10. On the other hand, Sri Ashutosh Mishra, learned counsel for the respondent, submits that very conduct of the petitioner of filing a belated application in the year 2016 after filing the appeal in the year 2010 itself indicates that dilatory tactics are being adopted by the petitioner herein before the court below and he himself is not interested in expeditious disposal of the appeal. Further, the argument advanced by the learned counsel for the respondent is that the said additional evidence has been sought to be brought on record at a belated stage and once the petitioner herein was perfectly aware of the said documents, as has been observed by the learned appellate Court while rejecting the said application, consequently at this stage there is no occasion for the appellate Court to take the said additional evidence on record and as such the order dated 6.12.2016 has been correctly passed. Another ground taken by the learned counsel for the respondent is that there has been no due diligence on the part of the petitioner inasmuch as perfectly knowing the fact that photo copy of the two documents have been filed before the lower court yet he has taken more than nine years to move the application for taking additional evidence that too at the time of hearing of the appeal and once it is admitted that it is a fault of the counsel, consequently, taking into consideration paragraph 40 of the judgment in the case of Ibrahim Uddin (supra) wherein fault of the counsel has not found to entail filing of additional evidence itself merits rejection of the application of the petitioner herein for filing of the additional evidence and consequently the order impugned merits to be upheld by this Court.
11. Heard learned counsel for the contesting parties and perused the record.
12. The admitted facts that can be culled out from the records is the final decision of the regular suit having taken place on 31.8.2010. Aggrieved against the said order the appeal itself was filed by the petitioner herein in the year 2010. From a perusal of record, it also comes out that evidence was filed in the regular suit sometime in the year 2007. It is only in the year 2016, while preparing the case for final argument that of the six documents filed before the trial Court, two documents were noticed to be xerox copy of the certified copy and consequently the learned counsel for the petitioner was of the opinion that the same could not have been considered as evidence. Accordingly, the application under Order 41, Rule 27 of the C.P.C. was filed on 6.10.2016. Thus it is apparent that it has taken 9 years for the petitioner herein to wake up to the fact that additional evidence is required to be filed. This aspect of the matter has persuaded the court below to reject the application of the petitioner for taking the evidence at the appellate stage.
13. However, the court below while considering the said application under Order 41, Rule 27 of the C.P.C. was obliged and obligated to consider the parameters under which the said application was to be considered. The said parameters have been summed up by the Supreme Court in the case of Ibrahim Uddin (supra), which for the sake of convenience is being reproduced below:-
"48. 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."
14. A perusal of the impugned order dated 23.11.2016 indicates that none of the four grounds, as have been summed up by the Hon'ble Supreme Court in the case of Ibrahim Uddin (supra), have been considered by the court below while rejecting the said application. A further perusal of the impugned order indicates that the court below was swayed more by the fact of the additional evidence not having been filed timely without considering the other grounds on which such an application was to be considered, as already summed up by the Hon'ble Supreme Court in the case of Ibrahim Uddin (supra). A perusal of the impugned order indicates that the court below has not considered as to whether the documents so sought to be filed by the petitioner herein had any relevance to the issue involved or whether the petitioner herein has prosecuted the case before the court below diligently and whether such evidence is required to pronounce the judgment by the appellate Court. In the absence of such consideration as culled out by the Hon'ble Supreme Court in the case of Ibrahim Uddin (supra), this Court can safely say that the order dated 23.11.2016 cannot be considered to be a legally sound order so as to be not interfered by this Court while exercising jurisdiction under Article 227 of the Constitution of India.
15. Another aspect of the matter is that the court below proceeded to decide the application preferred by the petitioner under Order 41, Rule 27 of the C.P.C. even prior to the hearing of the appeal. The said procedure would thus run foul of the procedure prescribed in the case of Ibrahim Uddin (supra) as followed by this Court in the case of Anita Sharma (supra). The said aspect of the matter has been considered in paragraph 5 of the said judgment. For the sake of convenience, paragraph 5 of the judgment in the case of Smt. Anita Sharma (supra) is reproduced below:-
"5. As has been noticed that the impugned order dated 10.9.2014 of the Additional District Judge, Court No.11, Meerut on an application no.35-Ga filed under Order 41, Rule 27 of C.P.C. is under challenge before this Court. From the perusal of the impugned order, it transpires that the application has been rejected only on the ground that ingredients of Order 41, Rule 27 are not satisfied. While challenging this order, learned counsel for the petitioner has placed reliance upon paragraph 41 of the judgment in Union of India v. Ibrahim Uddin and another (supra) which reads as under:-
41. Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored."
16. The arguments on behalf of the respondent that the application was sought to be filed at belated stage and that no substantial cause was also there and there was no due diligence apart from the fact that fault on the part of the counsel has not been held to be a good ground as considered in paragraph 40 of the judgment in the case of Ibrahim Uddin (supra), need not detain this Court inasmuch as the Hon'ble Supreme Court after considering the plea of fault of counsel, has summed up the entire issue in paragraph 48 of the said judgment as has already been reproduced above. Thus, even the negligence of the counsel has been taken into consideration by the Hon'ble Supreme Court while summing up the entire issue pertaining to the orders to be passed by the court below under Order 41 Rule 27 of the C.P.C.
17. Accordingly, keeping in view the aforesaid discussions and the fact that impugned order dated 23.11.2016 has not considered the circumstances as enunciated by the Hon'ble Supreme Court in the case of Ibrahim Uddin (supra) as well as the law laid down in the case of Anita Sharma (supra), this Court sets-aside the impugned order dated 23.11.2016 contained in Annexure-5 to the petition. The learned court below is now required to pass suitable order on the application for taking additional evidence numbered as A-38 filed by the petitioner under Order 41, Rule 27 within a period of two months from the date a certified copy of this order is placed on record to which both the parties agree. Both the parties would not seek any adjournment and cooperate with the court below in disposal of the said application within the time prescribed.
18. It is also provided that the court below shall proceed to decide the application without being influenced by any of the observations made by this Court and shall take into consideration the relevant law in this regard after affording opportunity of hearing to all parties.
19. The petition is disposed of.
Order Date :- 12.12.2018 Rakesh (Abdul Moin, J.)