Varadhan vs M. Govindasamy

M. Venugopal, J.—The revision petitioner/respondent/plaintiff has preferred this civil revision petition as against the order dated 15.07.2009

in I.A. No. 38 of 2009 in A.S. No. 99 of 2008 passed by the learned Principal District Judge, Tiruvallur in allowing the application filed by the

respondent/ appellant/defendant under Order 41 Rule 27 of CPC praying permission of the Court to receive the documents mentioned in the

petition as an additional evidence.

The learned Principal District Judge, Tiruvallur, while passing orders in I.A. No. 38 of 2009 on 15.07.2009, has observed that ''Heard both

sides. No valid objections in the counter. In the interest of justice, this petition is allowed and passed orders accordingly.''

Assailing the said order passed in I.A. No. 38 of 2009 by the learned Principal District Judge, Tiruvallur, the learned Counsel for the revision

petitioner contends that the order passed in I.A. No. 38 of 2009 suffers from serious infirmity in law as the same is not in accordance with the

ingredients of Order 41 Rule 27 of CPC and as a matter of fact, I.A. No. 38 of 2009 filed under Order 41 Rule 27 C.P.C. to receive the

documents mentioned in the petition as additional evidence has to be considered along with the main appeal and not separately, has done in the

present case on hand and indeed, the learned Principal District Judge should have heard the main appeal along with I.A. No. 38 of 2009 and

moreover, the respondent/defendant has not stated in his affidavit in I.A. No. 38 of 2009 that inspite of his due diligence the documents sought to

be marked have not been made available during the course of the trial of the main case and no proper reasons have been ascribed by the

respondent/defendant for not producing the documents earlier and added further, the observation of the learned Principal District Judge stating that

''No Valid objections in the counter'' runs contra to the counter filed by the revision petitioner to I.A. No. 38 of 2009 wherein the revision

petitioner has categorically stated that ''the documents filed along with along with the petition are all not related to this appeal etc.'' and moreover,

the documents No. 5 to 13 are not relevant to the issues in the case and also that documents No. 14 to 17 are not related to the case and they

have been obtained for the purpose of filing this appeal at the belated stage and all the more the revision petitioner has already handed over the

original parent documents relating to the suit property to the respondent/ appellant/defendant and therefore, the impugned order passed by the

learned Principal District Judge in I.A. No. 38 of 2009 has to be set aside in the interest of justice.

In support of the contention that the First Appellate Court has to record reason for admission of additional evidence as per Order 41 Sub-

clause (2) of Rule 27, the learned Counsel for the revision petitioner relies on the decision of Hon''ble Supreme Court in Basayya I. Mathad Vs.

Rudrayya S. Mathad and Others, at page 543 wherein it is held thus:

It is clear that parties to the lis are not entitled to produce additional evidence as of course or routine but must satisfy the conditions stated in Sub-

clauses (a) & (aa). Admittedly, such recourse has not been resorted to neither by the party concerned nor adhered those principles by the High

Court. Paragraph 3 of his order shows that the learned Judge verified the document produced on his direction without complying the mandate as

provided under Rule 27 of Order 41. Hence, we are of the view that the finding of the learned Judge based on a document produced at the time of

argument de hors to Rule 27 referred above cannot be sustained in the eye of law. In such circumstances, his ultimate conclusion treating the suit

property as a family property partible among the members of the family is also liable to be set aside. In fact, Sub-clause (2) of Rule 27 mandates

that wherever additional evidence is allowed to be produced by an Appellate Court, it shall record the reason for its admission. It is needless to

mention that the High Court neither followed those conditions for production of additional evidence nor recorded the reason for basing reliance on

the same.

He also relies on the decision of Hon''ble Supreme Court in Arjan Singh v. Kartar Singh, (1951) 2 SCR 258 wherein it is held as follows:

Where the first appellate Ct. admitted additional evidence before examination of the evidence on the record and consequently before reaching a

decision that the evidence as it stood disclosed a lacuna which the Ct. required to be filled up for pronouncing its judgment and that the appellate

Ct. was not justified in admitting the additional evidence.

He brings it to the notice of this Court to the decision in M. Ayyaswami and Anr. v. S.P. Ganesan and Anr. 1994 2 L.W. 376 wherein this

Court has held that ''it is the settled position of law that an application filed in the Appeal for permission to adduce additional evidence has to be

considered along with the main appeal and not separately.'' He seeks in aid of the decision of Hon''ble Supreme Court in Eastern Equipment and

Sales Ltd. Vs. ING. Yash Kumar Khanna, wherein it is held hereunder:

We have heard learned Counsel for the parties and after considering the facts and circumstances of the present case, we are of the view that in

order to decide the pending appeal in which the application under Order 41 Rule 27 of the Code of Civil Procedure. In that view of the matter and

without going into the merits as to whether the application under Order 41 Rule 27 of the CPC was rightly rejected by the Appellate Court as well

as by the High Court, we set aside the order of the High Court as well as of the appellate Court rejecting the application under Order 41 Rule 27

of the CPC and we direct that the appellate Court shall decide the pending appeal along with the application under Order 41 Rule 27 of the CPC

on merits within a period of three months from the date of supply of a copy of this order to the appellate court. The appeal is allowed to the extent

indicated above. There will be no order as to costs.

Continuing further, the learned Counsel for the revision petitioner cites the decision of this Court in Muthuswamy Gounder and Ors. v.

Ramaswamy Goundar (2007) 4 MLJ 49 at page 50 wherein it is held that ''an application seeking production of additional evidence at the

appellate stage has to be decided along with the appeal and not separately.'' He also cites the decision of Hon''ble Supreme Court in Karnataka

Board of Wakf Vs. Government of India and Others, wherein it is observed that ''the scope of Order 41 Rule 27 CPC is very clear to the effect

that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite

of due diligence, they could not produce such documents and such documents are required to enable the court to promote proper judgment etc.''

On the side of the revision petitioner reliance is placed on the decision of Hon''ble Supreme Court in Muzaffar Ali v. Dasaram (2009) 6 MLJ

1137 at 1138 (SC) wherein ''the Hon''ble High Court has been requested to decide the second appeal along with the application under Order 41

Rule 27 of CPC on merits within a period of three months from the date of supply of a copy of this order. While deciding the same, the High Court

shall also consider the reasons for rejection of the application under Order 41 Rule 27 of the CPC given by the Appellate Court.''

Another decision of Hon''ble Supreme Court in K.R. Mohan Reddy v. Net Work INC. Rep. T.R.M.D. (2008) 1 MLJ 1253 (SC) is cited on

the side of the revision petitioner to the effect that ''the Power of the Appellate Court to pass an Order under Order 41, Rule 27, Code of Civil

Procedure, 1908 to admit additional evidence in limited. For exercising its jurisdiction thereunder, the Appellate Court must arrive at a finding that

one or the other conditions enumerated thereunder is satisfied. A good reason must also to be shown as to why the evidence was not produced in

the trial Court.''

Besides the above, the learned Counsel for the revision petitioner cities the decision of this Court in Sambanda Mudaliar v. Vaidyanathan and

Ors. (2002) 1 M.L.J. 649 at 659 wherein it is observed as follows:

It is doubtful whether the ignorance of the petitioner regarding the sale deed can be accepted. In fact, the pleadings are very vague in this regard.

They merely state that the property went out of the hands of the family until it was re-purchased. Two sale deeds Exs.A-2 and A-3 alone are filed.

No reason is given why this document was not filed at the earliest stage. None of the conditions set down in Order 41, Rule 27, C.P.C. exist. It is

not as if, the Court below had refused to admit evidence which ought to have been admitted, nor is it the petitioner''s case that notwithstanding the

exercise of due diligence, this document could not be produced at the earliest point of time, nor can it be said that this document is required to

produce judgment.

Moreover, he relies on the decision of Hon''ble Supreme Court in The Land Acquisition Officer, City Improvement Trust Board Vs. H.

Narayanaiah and Others, at page 2414 wherein it is held as below:

The Karnataka High Court had, however not complied with provisions of Order 11, Rule 27 of the C.P.C. Which require that an appellate Court

should be satisfied that the additional evidence is required to enable them either to pronounce judgment or for any other substantial cause. It has

recorded no reasons to show that it had considered the requirements of Rule 27, Order 41, of the C.P.C. We are of the opinion that the High

Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it

found it necessary to admit it an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading

other evidence.

However, the learned Counsel for the respondent/ defendant submits that the learned Principal District Judge, Tiruvallur has specifically

observed in the order passed in I.A. No. 38 of 2009 that in the counter there have been no valid objections and in the interest of justice has

allowed the application and as a matter of fact, a Court of law should not adopt a hyper technical approach and therefore, the impugned order in

I.A. No. 38 of 2009 does not require any interference in the hands of this Court sitting in revision.

To lend support to his contention that a hyper technical approach ought not to be adopted by a Court of law and that the pragmatic approach

has to be adopted, the learned Counsel for the respondent/tenant relies on the decision of this Court in S.N. Hasan Abubucker Vs. Kottikulam St.

Mohideen Pallivasal Therkku Mohindeen Pallivasal, Nirvagi Mutheru Committee and another, wherein it is held that ''Ultimate aim of judicial

proceedings is to render justice and the technicalities including the provisions under Order 41, Rule 27 of CPC are only handmaids of justice and

further that if the additional evidence placed before the court is such that receiving them would be in the interest of justice then appellate court

ought to permit additional evidence instead of adopting hypertechnical approach.''

He also cites the decision of Hon''ble Supreme Court in Balwant Singh v. Darshan Singh and Ors. (2005) 7 Scc 117 wherein it is held that

''Order permitting production of additional evidence under Under 18 Rule 17-A of C.P.C. by the trial Court in exercise of its discretion and is not

liable to be interfered with ordinarily in exercise of revisional jurisdiction by High Court and that the trial Court has not acted without jurisdiction or

acted with material irregularity and hence interference has not been called for.''

Also the learned Counsel for the respondent cites the decision of Hon''ble Supreme Court in Harju (since deceased) through his proposed

legal heirs and Ors. v. Phulari @ Churmarawati and Ors. (2005) 10 Scc 191 at 192 wherein it is held that ''for the purpose of this appeal it is

sufficient to note that the application should have been disposed of either by rejecting it or allowing it by the High Court before deciding the appeal.

Accordingly, we set aside the decision of the High Court in second appeal and remand the matter back to the High Court solely for the purpose of

considering the application of the appellants under Order 41 Rule 27 etc.''

On the side of the respondent/defendant reliance is placed on the decision in Jayaramdas and Sons Vs. Mirza Rafatullah Baig and Others, at

page 508 wherein the Hon''ble Supreme Court has held that ''the case of the appellants for production of additional evidence falls within Order 41

Rule 27(1)(aa). 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, the ends of justice demand the additional evidence being allowed to be produced dehors the deficiency

in the application filed by the appellants. However, the documents shall be admitted in evidence by the first appellate court, subject to payment of

Rs. 5000 by way of costs by the appellants.''

The learned Counsel for the respondent invites the attention of this Court to the decision in K.V. Ramasamy V. K.V. Rahgavan and 3 Ors.

2009 (4) CTC 440 wherein it is held that ''word ""shall"" in Order 41, Rule 27(2) of C.P.C. is directory and not mandatory and even if sufficient

reasons have not been assigned for admission of additional evidence, such admission would not be vitiated and ultimate goal is to render justice

and Court can admit important and necessary evidence in Appellate stage.''

That apart, on the side of the respondent the decision in Sanjiv Goel v. Avtar S. Sandhu (2006) 9 SCC 748 at 749 is cited to the effect that

the Hon''ble Supreme Court has among other things observed as follows:

Without expressing any opinion on the merits of the claim of the appellant in his application ought to have been disposed of by the learned

Additional District Judge before deciding the appeal which was pending before him. Non-disposal of the said application has led to the miscarriage

of justice. Accordingly, we set aside the impugned judgment of the High Court as well as the judgment dated 22.7.1997 of the learned Additional

District Judge, Jalandhar and remand the matter back to the District Judge, Jalandhar for assigning the case to an appropriate court for decision of

the appeal as well as the application of the appellant under Order 41 Rule 27 CPC on merits in accordance with law. This appeal is disposed of

accordingly. The parties to bear their own costs.

Continuing further, the learned Counsel for the respondent cites the decision of Hon''ble Supreme Court in K. Venkataramiah Vs. A.

Seetharama Reddy and Others, wherein it is held hereunder:

Under Rule 27(1),. the appellate court has the power to allow additional evidence not only if it requires such evidence ""to enable it to pronounce

judgment"" but also for ""any other substantial cause"". There may well be cases where even though the court finds that it is able to pronounce

judgment on the state of record as it is, and so it cannot strictly say that it requires additional evidence to enable it do pronounce judgment, it still

considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more

satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial case under Rule 27(1)(b) of the Code.

Such requirement of the court is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the

evidence . It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the

requirement must be the requirement of the Court upon its appreciation of the evidence as its stands. AIR 1931 143 (Privy Council) , Rel.on.

Furthermore, the decision in Gurdev Singh and others Vs. Mehnga Ram and another, is cited on the side of the respondent to the effect that

''the Appellate Court has jurisdiction to pass order under Order 41, Rule 27(b) one way or other and that can be challenged in second appeal

against the decree and that the interference at interim stage when appeal has been pending for final hearing is not proper.''

Besides the above decisions, the learned Counsel for the respondent also cites the decision of Hon''ble Supreme Court in ADIL Jamshed

Frenchman (D) by LRs. Vs. Sardar Dastur Schools Trust and Others, wherein it is held that ''documents which has came into existence after the

order of trial Court which are material and if substantiated would have material effect on bona fide requirement of landlord for his own occupation

can be permitted to be produced as additional evidence in appeal against Order of eviction etc.''

Also another decision in Wadi Vs. Amilal and Others, of Hon''ble Supreme Court is pressed into service on the side of the respondent to the

effect that ''Rule.27 deals with production of additional evidence in the appellate court. The general principle incorporated in sub-rule(1) is that the

parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate court to cure a lacuna or fill up a gap in a

case. The exceptions to that principle are enumerated thereunder in Clauses (a), (a) and (b). If the appellate court requires any document to be

produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be

examined. The requirement or need it that of the appellate court bearing in mind that the interest of justice is paramount. If it feels that pronouncing

a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence

is necessary, Clause (b) enables it to adopt that course. Invocation of Clause (b) does not depend upon the vigilance or negligence of the parties

for it is not meant for them. It is for the appellant to resort to it when on a consideration of material on record it feels that admission of additional

evidence is necessary to pronounce a satisfactory judgment in the case.''

At this stage, this Court recalls the decision in Gupta National Radios & Electric House, Farrukhabad v. Sagarmal Arora and Anr. 2003

AIHC 2722 at 2724 at para 20 wherein it is observed as follows:

I do not find any ground for interference with the said conclusion of the Appellate Authority with regard to Clause (aa) of Sub-rule (1) of Order

XLI, Rule 27 of the Code of Civil Procedure. However, while considering the said application 47-C-2 in order to decide the question of

applicability of Clause (b) of Order XLI, Rule 27(1) of the Code of Civil Procedure, the Appellate Authority has not considered as to whether the

documents sought to be filed by the said application 47-C-2 were required to be produced to enable the Appellate Authority to pronounce the

judgment or as to whether there was any other substantial cause for taking the said documents on record. In fact, while considering the said

application 47-C-2 from the point of view of applicability of Clause(b) of Order XLI, Rule 27 of the Code of Civil Procedure, the Appellate

Authority has observed that only Photostat copies of paper Nos. 4 and 6 had been filed before the lower Court, and the originals were not filed,

and further that the petitioner had not exercised due diligence to produce the said documents before the lower Court. These considerations, in my

opinion, were relevant for deciding the question of applicability of Clause (aa) of Order XLI, Rule 27(1) of the CPC but these were not relevant

for deciding the question of applicability of Clause (b) of Order XLI, Rule 27(1) of the Code of Civil Procedure. Therefore, I am of the view that

the Appellate Authority has not considered the question of applicability of Clause (b) of Order XLI, Rule 27(1) of the CPC in regard to the

documents sought to be filed by the application 47-C-2 on relevant considerations. Instead, the Appellate Authority has proceeded on irrelevant

considerations, in deciding the applicability of Clause (b) of Order XLI, Rule 27(1) of the Code of Civil Procedure. Therefore, the impugned

judgment and order dated 23rd Oct. 2002 in so far as it has rejected application 47-C-2 cannot be sustained and is liable to be quashed to that

extent.

The learned Counsel for the respondent also puts forward a plea that as against the order dated 15.07.2009 in I.A. No. 38 of 2009 passed by

the Principal District Judge, Tiruvallur, the present revision petition filed by the revision petitioner/plaintiff is not maintainable in law and the revision

petitioner''s only remedy is to challenge the correctness of the orders passed in I.A. No. 38 of 2009 along with the judgment in A.S. No. 99 of

2008 at the appropriate time before the appropriate forum.

In this connection, this Court pertinently points out the decision in Sallo Ram and etc. Vs. Kuldip Chand and etc., wherein it is held that

''revision is maintainable against the order passed on an application under Order 41 Rule 27 for production of additional evidence in Appellate

Court.''

As far as the present case is concerned, the civil revision petition is filed under Article 227 of the Constitution of India. Inasmuch as the

correctness of the order passed by the learned Principal District Judge, Tiruvallur in I.A. No. 38 of 2009 is questioned before this Court in the civil

revision petition filed by the revision petitioner, this Court is of the considered view that the revision petition filed by the revision petitioner is

perfectly maintainable in law before this Court. Furthermore, if the discretion exercised by the Subordinate Court on a wrong principle, then the

revision petition filed by an aggrieved party is certainly maintainable before this Court under Article 227 of the Constitution of India, in the

considered opinion of this Court.

Generally speaking, an order passed by a Court of Law ought to be a reasoned one and as a matter of fact, atleast an outline of process

reasoning must be there. Needless to point out that an unreasoned order may be just, but may not appear to be so to the person affected and per

contra, a reasoned order will have the appearance of justice, in the considered opinion of this Court.

In the present case on hand, on a careful consideration of respective contentions and after going through the order passed by the learned

Principal District Judge, Tiruvallur in I.A. No. 38 of 2009 to the effect that ''Heard both sides. No valid objections in the counter. In the interest of

justice, this petition is allowed'' is not a speaking, reasoned order and the same is bereft of qualitative and quantitative details and added further, it

is cryptic and moreover, the appropriate stage for admission of additional evidence under Order 41 Rule 27(b) of CPC is the final hearing of the

appeal in view of the fact that the ingredients of Order 41 Rule 27 of CPC will have to be exercised cautiously and sparingly when the Appellate

Court is in a position to scrutinise and appreciate the evidence on record and in this view of the matter, this Court sets aside the order passed by

the learned Principal District Judge, Tiruvallur in I.A. No. 38 of 2009 dated 15.07.2009 and accordingly, allows the civil revision petition in

furtherance of substantial cause of justice.

In fine, the Civil Revision Petition is allowed, leaving the parties to bear their own costs. The order passed by the learned Principal District

Judge, Tiruvallur in I.A. No. 38 of 2009 is set aside. The learned Principal District Judge, Tiruvallur is directed to hear I.A. No. 38 of 2009 along

with A.S. No. 99 of 2008 pending on his file and to dispose of the same within a period of two months from the date of receipt of copy of this

order and to report compliance to this Court without fail. Considering the facts and circumstances of the case, there shall be no order as to costs.

Consequently, connected miscellaneous petition is closed.