Somunesh De and Others vs Srichanda Kar and Others

Biswanath Rath, J.—This is a writ petition assailing the order dated 29.09.2011 passed by the Special Judge(Vigilance), Balasore in R.F.A. No. 66 of 2006 allowing an application under Order 43, Rule 1(A) sub-rule I, Civil Procedure Code along with another application under Order 41, R. 27(aa) , Civil Procedure Code at the instance of the appellant-Opp.party No. 1 in the Court below.

The short fact involved in the case is that the present Opp.party No. 1 as plaintiff filed the suit bearing Title Suit No. 537 of 1996-I for declaration that she has 1/3rd share in respect of Kha and Ga schedule property, 1/9th share in Gha schedule property and also for partition of her share. During pendency of the suit bearing T.S. No. 537 of 1996-I, the plaintiff moved with an application for amendment of plaint under Order 6, Rule 17 of the Civil Procedure Code. The application for amendment was heard on contest and by order dated 04.4.2006; the application was rejected after observing that the amendment sought for is contrary to her earlier petition in the suit. Subsequently the suit was also dismissed. Being aggrieved by the final order in the suit, the Opp.party No. 1 filed R.F.A. No. 66 of 2006. During pendency of the R.F.A., Opp. party No. 1 as appellant filed a petition under Order 43, Rule 1(A) , Civil Procedure Code for amendment seeking enhancement of share of Opp.party No. 1 in respect of suit land contending therein that the trial Court was wrong in rejecting her such application on 04.4.2006. Petitioners as respondent Nos. 2 to 4 filed objection claiming rejection of the application under Order 43, Rule 1(A) , Civil Procedure Code barred by limitation and so also hit under the principle of res judicata and estoppel.

During pendency of the aforesaid application, Opp. party No. 1 filed another application under Order 41, R.27(aa) , Civil Procedure Code for accepting additional evidence requesting therein to admit the certified copy of YADAST as additional evidence. This time also all the respondents including the present petitioners seriously objected to such request of the Opp. party No. 1. Both the applications were heard together and by common impugned order, the applications were allowed on the premises that the materials brought on by way of amendment as well as additional evidence are all relevant for the purpose of just decision in the suit.

By filing the present Writ petition, the petitioners contended that similar prayers having been rejected by the trial Court, the Opp.party No. 1 was estopped in bringing the very same materials in the lower appellate Court in absence of challenge to the order of rejection on similar attempt by the trial Court. In view of the rejection of the previous attempt of Opp.party No. 1, her subsequent application at the appellate stage also hit by principle of resjudicata and estoppel. The petitioners also contended even assuming that any such application has been filed, such application ought to have been considered at the time of hearing of the appeal. It is on these premises, learned counsel for the petitioners prayed for setting aside the impugned order.

On the other hand, on his appearance, Mr. Swain, learned Counsel appearing for the Opp.party No. 1 seriously objecting to the contentions raised by the learned counsel appearing for the petitioners submitted that the materials brought by way of an application filed under Order 43, Rule 1 (A) as well as Order 41, Rule 27(aa) , Civil Procedure Code were not only relevant for consideration of the appeal but also relevant for just decision in the appeal. In substantiating the impugned order, Sri Swain, learned counsel for Opp.party No. 1 submitted that there has been a thread bare discussion on the relevancy of the document by the lower appellate Court and in view of the findings arrived at by the lower Court, it leaves no scope for interfering in the said order and on these premises, sought for rejection of the writ petition.

Relying on a decision in between Jabalpur Development Authority Vs. V.V. Shrivastava and Another, rendered by Hon''ble Supreme Court of India, Sri Swain, learned counsel for Opp.party No. 1 submitted that in view of the position settled therein, the lower appellate Court did no wrong in allowing the application at the instance of Opp.party No. 1.

The factual position as available from the case record clearly reveals that the application as stated herein above, were all moved by the plaintiff in the pending R.F.A. No. 66 of 2006. The pleadings in the writ petition as well as the discussion of the lower Appellate Court in the impugned order also clearly reveal that the Opp.party No. 1 as plaintiff had similar efforts already during pendency of the suit in the trial Court and the trial Court rejected such application by an order, the order was neither challenged independently nor made a ground in the pending First Appeal. Under the circumstances, question that falls for consideration is as to whether a party having lost in his/her attempt to bring certain materials by way of amendment in the trial Court and having neither challenged the same nor taken such grounds in the First Appeal if permitted to bring such aspects by way of application under Order 43, Rule 1(A) , Civil Procedure Code in the pending First Appeal ? There is no dispute that the plaintiff in her First Appeal has also not taken any ground challenging the rejection of her such attempt by the trial Court. Under the circumstances, this Court observes that plaintiff having abandoned the challenge to rejection of such an attempt in the trial Court, is estopped from raising any such plea by filing an application under Order 43, Rule 1(A) , Civil Procedure Code and further by way of an application under Order 41, Rule 27(aa) , Civil Procedure Code in the pending First Appeal.

Now coming to the second question involved in the dispute as to whether the application under Order 41, Rule 27(aa) , Civil Procedure Code is to be considered ahead of hearing of the appeal or along with hearing of the appeal ? There is no doubt that Order 41, Rule 27 , Code of Civil Procedure empowers a party to produce additional evidence whether oral or documentary in the appellate Court. Looking to the law as settled by the Hon''ble Apex Court in the case in between Jabalpur Development Authority Vs. V.V. Shrivastava and Another, , Hon''ble Apex Court considering the similar aspect has come to hold that the High Court is required to consider the application under Order 41, Rule 27 , Civil Procedure Code along with the Second Appeal. Secondly in another decision in the case in between (2015) 2 OLR 607, this Court relying on some previous decisions rendered by Privy Council as well as this High Court also in categoric terms held that the appellate authority is required to consider such applications at the time of hearing of the appeal. It is under these premises, this Court observes that the lower appellate Court considering the application under Order 41, Rule 27(aa) , Code of Civil Procedure prior to hearing of the appeal, is also illegal and unjustified. However since the Opp.party has already abandoned the particular challenge either by not challenging the said order of rejection by the trial Court or at least challenging the same in the First Appeal itself, the Opp.party can not get the benefit of the above proposition in the present case.

Be that as it may, as per the facts available in the pleadings of the parties and discussion made in the impugned order, this Court finds that there is a clear observation of the lower appellate Court that similar attempts of Opp.party No. 1 as plaintiff in the trial Court has failed by an order of the trial Court itself. It is the admitted position in the present case that the petitioner has not resorted to the provisions of Order 43, Rule 1(A) , Civil Procedure Code thereby challenging the non-appealable orders of the trial Court in appeal against the decree. It is therefore a clear case of abandonment of such challenge by the plaintiff in preferring an appeal before the First Appellate Court. It is in this view of the matter, the Opp.party No. 1 was otherwise estopped from making a second attempt for bringing materials or additional evidence in the pending First Appeal. This Court finds force in the submission of the learned counsel appearing for the petitioners which has also the support of law as discussed herein above.

Under the circumstances; this Court finds the findings of the lower appellate Court in the impugned order are not only erroneous but also illegal. Thus while interfering in the impugned order, this Court sets aside the impugned order under Annexure-8 and directs the lower appellate Court to hear the First Appeal on the materials already available on record and dispose of the same by affording opportunity of hearing to the respective parties.

Writ petition succeeds but however there is no order as to cost.