Satya Devi vs Prithu and Others

T.R. Handa, J.—This civil revision is at the instance of the Plaintiff and is directed against the order of the first appellate Court dated 16-10-1981 allowing the application of the Respondents-Defendants made under Order 41 Rule 27 CPC for permission to adduce additional evidence in the form of a copy of the plaint of an earlier suit filed by the Petitioner-Plaintiff against the Defendants-Respondents.

The Petitioner-Plaintiff had filed a suit for possession of certain land on''the basis of title which she claimed as heir of her deceased father who previously owned such land. The suit was resisted by the Defendants-Respondents inter-alia, on the grounds that it was barred under Order 2 Rule 2 and Order 9 Rule 8 CPC inasmuch as the earlier suit filed by the Plaintiff against the Defendants in respect of the same land and on the same cause of action had been dismissed.

The suit of the Plaintiff-Petitioner was ultimately decreed by the trial Court. Both the aforesaid objections of the Defendants, namely, that the suit was barred under Order 2 Rule 2 and Order 9 Rule 8 CPC were repelled as the Defendants-Respondents had not been able to establish if the earlier suit and the present suit were both based on the same cause of action.

The Defendants-Respondents preferred an appeal in the district Court against the judgment and decree of the trial Court. Before the appeal came up for hearing, the Defendants-Respondents made an application under Order 41 Rule 27 CPC for permission to adduce additional evidence. This application reads thus:

That the above appeal is fixed for hearing for 8-5-1979.

That in the lower Court the Plaintiff-Respondent had admitted that she had earlier also filed a suit regarding the suit land and the same was dismissed and to substantiate the plea and 0.2 R. 2 and 0.9 R. 8 the Defendants-Appellants had produced the copy of decree sheet (Ex. DA) but the learned Court thought it insufficient without elucidation as such for elucidation of the statement of the Plaintiff-Respondent and Ex. D-A, a copy of the plaint filed by the Respondent in her earlier civil suit has become necessary for the just decision of the case, which could not be produced in the lower Court inadvertently.

It is, therefore, most humbly prayed that the Appellant be permitted to tender in evidence the attested copy of the plaint and the same be exhibited and read in evidence on behalf of the Defendants-Appellants.

The Petitioner-Plaintiff opposed that application which, according to her, had been made only to fill up lacuna in the evidence of the Defendants-Respondents adduced in the trial Court and as such could not be allowed. The learned first appellate Court, however, allowed the same vide its impugned order.

Shri Rana, the learned Counsel for the Petitioner does not dispute the jurisdiction ofthe appellate Court to summon additional evidence under Order 41 Rule 27 CPC His sole contention in support of his challenge to the impugned order is that the learned Court below acted illegally or with material irregularity in the exercise of its jurisdiction in summoning the additional evidence under Order 41 Rule 27 Code of Civil Procedure. The jurisdiction vested in the appellate Court under-Order 41 Rule 27 CPC proceeds the argument of thelearned Counsel, is neither unbridled nor unrestricted whereas the im-punged order smacks of arbitrariness.

In order to appreciate the contention of the learned Counsel it looks desirable to extract the provisions of Order 41 Rule 27 Code of Civil Procedure. These provisions read:

(1) The parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the Appellate Court. But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause the Appellate Court may allow such evidence or document to be produced, or witness, to be produced, or witness, to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court, shall record the reason fonts admission.

As is obvious from a bare perusal of the above Rule, the appellate Court as a general rule is not to travel beyond the record of the lower Court and no additional evidence can be taken in appeal. This Rule is an exception to the general rule and enables the appellate Court to take additional evidence but only in the circumstances mentioned therein. The appellate Court would be justified in taking additional evidence only if it is satisfied-

(i) that the trial Court had refused to admit the evidence sought to be adduced as additional evidence and which the trial Court ought to have admitted;

(ii) that notwithstanding the exercise of due diligence the party seeking to adduce the additional evidence was not in the know of the existence of such evidence, or

(iii) that the party seeking to adduce such additional evidence even after the exercise of due diligence, was not in a position to produce it at the trial; or

(iv) the appellate Court requires such evidence in order to enable it to pronounce judgment in the appeal or for any other substantial cause.

Unless one of the conditions referred to above is satisfied, the appellate Court would not be justified in exercising its jurisdiction under Order 41 Rule 27 CPC in allowing the production of additional evidence. Again as is obvious from the language of sub-rule (2), the appellate Court while allowing a prayer for additional evidence or ordering production suo-moto, must record reasons in support of its order. In the instant case admittedly the first three clauses mentioned above were not attracted inasmuch as it was never the case of the Defendants-Respondents that the trial Court had refused to admit the additional evidence which they sought to produce or that that existence of such evidence was not within their knowledge or that despite exercise of due diligence they could not produce it at the trial. The provisions of Order 41 Rule 27(1)(a)(aa) could not, therefore, be invoked by the lower appellate Court in allowing the prayer of the Respondents-Defendants to produce additional evidence. In the circumstances, the Court below could exercise its jurisdiction of allowing the additional evidence only under Clause (b) of sub-rule (1) of Rule 27. The jurisdiction conferred on the appellate Court under this clause could be exercised only if the appellate Court came to the conclusion that it required the additional doccument sought to be produced in order to enable it to pronounce its judgment or for any other substantial cause. The appellate Court in the first instance must consider the evidence already on the record with a view to form an opinion whether the same is sufficient to pronounce its judgment and it is only when it comes to the conclusion that it is unable to pronounce judgment on the material already on the record that the question of requiring production of additional evidence would arise. The legitimate occasion, therefore, for the exercise of the discretion under this sub-rule would be only after the examination of the evidence, as it stands, is made by the Court. Normally such an examination is made at the time of hearing. There is, however, no bar for the appellate Court to examine such an evidence at an earlier stage and from its opinion whether it can or cannot pronounce judgment on the material on record. The fact, however, remains that unless such an opinion is formed after examining the evidence on record, the Court would not be in a position to exercise its jurisdiction under Clause (b) of sub-ruie (1) of Rule 27.

In the instant case the appeal had not reached the hearing stage when the impugned order was passed. A perusal of this order clearly shows that in recording this order the Court below had not applied its mind to the evidence adduced before the trial Court but was influenced only by the observations made by the trial Court in its judgment; It is obvious from the following language employed in the impugned order :

It has been observed in the lower Court''s judgment that the Plaintiff admitted while appearing as her own witness that she had previously filed a suit which was dismissed. Not only that the trial Court observed that in the absence of the plaint it could not be enquired into as to the cause c faction on the basit, of which the previous suit was filed. With this context it cannot be said that withholding this piece of evidence by the Appellants reflected his mala-fides but on the other hand some evidence had been led to cover the scope of the a fort said two issues and the present application for adducing copy of the plaint as additional evidence cannot be said to have been made in order to fill in the lacuna. This copy of the plaint cannot be manufactured but admittedly the Plaintiff filed the suit which was admitted to have been dismissed previously. So in such circumstances it would be most essential in the interest of justice to allow the Appellants to bring this important document on record. This documents not only would be required by the Court to pronounce the judgment as referred to above but also there is a substantial cause in its production.

The observations of the trial Court made in its judgment and referred to above might or might not be justified. The appellate Court in my view was duty bound to consider and apply its mind to the evidence appearing on the record of the trial Court and. then to form its independent opinion whether the plaint in the earlier suit was really necessary to enable it to pronounce its judgment. Inasmuch as the learned Court below failed to consider and apply its independent mind to the evidence adduced at the trial in order to form its opinion whether the production of additional evidence was necessary to enable it to pronounce judgment, it in my view acted illegally or in any case with material irregularity in the exercise of its jurisdiction under Order 41 Rule 27 Code of Civil Procedure. The impugned order, therefore, deserves to be quashed for this short reason.

It may be observed that the Court below has further ovserved in the impugned that "there is a substantial cause in its production". The substantial cause which could be served by the production of the additional evidence has not been defined by the learned Court. In fact no reference to such substantial cause is found in any other part of the order. The learned Court below appears to have used this language in a casual manner without any meaning.

For the foregoing reasons I am of the view that it was rather premature on the part of the appellate Court below to have invoked its jurisdiction under Order 41 Rule 27(1)(b) CPC in allowing the production of additional evidence at the stage when the impugned order was passed and that in passing such order it certainly acted illegally and with material irregularity in the exercise of its jurisdiction. I accordingly accept this revision petition and quash the order of the Court below. It is, however, made clear that the quashing of the impugned order would not debar the Defendants-Respondents to invoke the jurisdiction of the appellate Court under Order 41 Rule 27(1)(b) at the appropriate stage nor would it preclude the appellate Court to exercise its jurisdiction under this provision if it is of the view that the production of the additional evidence is necessaiy to enable it to pronounce the judgment Or for any other substantial cause.

The parties through their counsel have been directed to appear before the first appellate Court on 30th July, 1985.