Risala vs Mam Chand

S.S. Sodhi, J.

The matter here pertains to the redemption of the mortgage of the land in suit. The point in issue being with regard to limitation.

The mortgage came into being on March 27, 1942, as per the concurrent finding of both the trial Court as also the lower appellate Court.

The plaintiff, had, in the first instance filed an application under Section 4 of the Redemption of Mortgages (Punjab) Act, 1913 (hereinafter referred as `the Act''), for the redemption of this mortgage. This was dismissed by the Collector, Jind, by his order exhibit P. 5 of August 20, 1974 and it was thereafter that the present suit for declaration was filed on November21, 1974, whereby the plaintiff also sought redemption of the mortgage. This suit stands dismissed as barred by time and hence this appeal.

This controversy that arises at the outset is with regard to the date of the filing of the application under Section 4 of the Act. According to the plaintiff, it was on November 3, 1971 that this application was filed by him before the Collector, Kaithal. The case of the respondent Man Chand, on the other hand, is that the application was filed before the Collector Jind, and that too on November 23, 1973. It may be pointed out here that with the mortgage being of March 27, 1942, the application for redemption of the mortgage under Section 4 of the Act, as also the present suit would clearly be barred by time if the date of the application is found to be November 23, 1973, but within time if it is as per the plaintiffs version namely November 3, 1971.

According to the plaintiff, the application under Section 4 of the Act was filed before the Collector, Kaithal, on November 3, 1971 and the respondent had also filed a written statement there on August 8, 1972 and it was thereafter, that the application was transferred to the Collector, Jind, as village Dathrath, where the land is situated, had been detached from Kaithal and came to form part of district Jind. November 23, 1973, was, according to the plaintiff, the date when the application filed by the plaintiff was received by the Collector, Jind and it was on that account, this was the date mentioned in the order exhibit P.5 of the Collector, Jind, as being the date of institution.

To support his case, the plaintiff filed an application in this Court under Order 41 Rule 27 of the Code of Civil Procedure, to place on record a certified copy of the application filed by him before the Collector Kaithal on November 3, 1971 as also the written statement filed by the respondent on August 8, 1972 with a view to show that the application under Section 4 of the Act had in fact been filed within limitation. Counsel for the respondent, however, sought to oppose this additional evidence being allowed at this stage, by seeking to contend that the provisions of Order 41 Rule 27 of the Code of Civil Procedure, cannot be used merely to fill up lacuna in the evidence. He sought to rely in this behalf upon the judgment of the Supreme Court in Natha Singh and others v. The Financial Commissioner, 1976 P.L.J. 293 S.C., where, it was observed, "the discretion given to the appellate Court to receive and admit additional evidence under Order 41 Rule 27 is not an arbitrary one but is a judicial one circumscribed by the limitations specified by the limitations specified in that provision. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. The true test to be applied in dealing with applications for additional evidence is whether the appellate Court is able to pronounce judgment on the material before it, without taking into consideration the additional evidence sought to be adduced ". To a similar effect was what was held by the Supreme Court in State of Uttar Pradesh v. Manbhodan Lal Srivastava, A.I.R. 1957 SC 912.

Power is undoubtedly vested in the Court to admit additional evidence in appeal. This power is, however, circumscribed by the provisions of Order 41 Rule 27 of the Code of Civil Procedure and has thus to be exercised in terms thereof. Accordingly, while the Court is not entitled to let any fresh evidence, merely for the purpose of pronouncing judgment in a particular way, it must permit additional evidence to be adduced where such evidence is required by the Court to enable it to pronounce judgment in a just and proper manner. As the Supreme Court observed in Municipal Corporation of Greater Bombay v. Lala Pancham, A.I.R. 1963 S.C. 1008, the appellate Court is empowered to admit additional evidence for removing the lacuna in the evidence. Each case, in this context, has thus to be considered on its own facts in the light of the evidence on record.

In the present case, it will be seen that the entire case virtually hinges upon the date of the application under Section 4 of the Act. The additional evidence that is now sought to be adduced removes the cloud of doubt perpetrate over it and brings out the true picture and indeed to deny it would be to poretuate injustice. Exhibit P. 5, copy of the order of the Collector,JInd, should in fact have mentioned the date of the application to be the date when the application was filed before the Collector, Kaithal, that is November 3, 1971. The error or omission on the part of the official who failed to do so, cannot be allowed to operate to the prejudice of the plaintiff. It is also to be noted that by the additional evidence being let in, no new point is being raised. This evidence has a direct and important bearing on the main issue in the suit and interests of justice clearly render it imperative that it be allowed to be brought on record. The application under Order 41 Rule 27 of the Code of Civil Procedure, is consequent hereby allowed and the copy of the application under Section 4 of the Act is now exhibited as PX and the written statement filed therein as exhibit PY. With this material having coming on record, there can be no escape from the conclusion that the application under Section 4 of the Act was filed within limitation.

As regards the present suit, it was admittedly filed within a year of the order of the Collector exhibit P. 5 of August 20, 1974. The present suit having been filed on November 21, 1974. If the period taken in prosecuting the application under Section 4 before the Collector is excluded, there can be no manner of doubt that the present suit would be within limitation. To construe it to be within limitation in this manner, is supported by the precedent of this Court in Thaman Singh v. Dial Singh & Os., 1985 PLJ 677.

The judgment and decree of the lower appellate Court, holding the suit of the plaintiff to be barred by time cannot, therefore, be sustained and is accordingly hereby set aside and the plaintiff is granted a decree for declaration and redemption of the mortgage as prayed for.

This appeal is consequently hereby accepted with costs throughout.