1. This petition challenges the order dated 6.4.2017 passed by the learned District Judge, Cuttack in R.F.A.No.10 of 2016, whereby and whereunder, the learned appellate court rejected the application of the appellants-petitioners under Order 41 Rule 27 C.P.C. for acceptance of certain documents as additional evidence.
2. Ramesh Kumar Bhawsinka, predecessor in interest of opposite parties 1 to 3 as plaintiff, instituted C.S.No.6785 of 2014 (I) in the court of the learned Civil Judge (Sr.Division), First Court, Cuttack for eviction of the defendants from the suit premises, delivery of vacant possession, payment of arrear house rent and damages with interest impleading the petitioners as defendants. The case of the plaintiff is that he is the owner of suit premises. The same was given on rent. A lease agreement was executed on 28.11.1946 in favour of Ganesh Lal Didwania, one of the Director of M/s.Bharat Motors, for a period of 21 years with effect from 1.12.1946. After completion of the period of lease, a fresh agreement was entered into between the parties on 19.7.1985 for a period covering from 1.8.1984 to 21.7.1988. In the said agreement, a sum of Rs.2100/- was fixed towards monthly rent subject to increase by 20% after expiry of the lease period. The said process continued till July, 2008 and monthly rent was enhanced to Rs.10,000/-. Prior to completion of tenancy, on 2.7.2008 the plaintiff had requested defendant no.1 to vacate the premises and hand over possession of the premises on or before 1.8.2008. After receipt of the letter, defendant no.1 through one of its partner, defendant no.2, had written a letter requesting the plaintiff to enter into a fresh negotiation for execution of a new agreement and expressed their inability to vacate the premises and went on paying of Rs.10,000/- towards monthly rent. While the matter stood thus, defendant no.2 met the plaintiff and assured to pay a sum of Rs.50,000/- per month towards rent for a period of six months and, thereafter shift to another place. But then a sum of Rs.10,000/- was paid towards monthly rent and the suit premises was not vacated. The plaintiff sent legal a notice calling upon the defendants to vacate the premises. Thereafter, the defendants stopped payment of rent of Rs.10,000/- from the month of November, 2013. After issuance of summons under Section 106 of the T.P.Act, the suit was filed.
3. Pursuant to issuance of summons, the defendants entered appeared and filed a comprehensive written statement admitting that the predecessor of the plaintiffs and defendant no.1 entered into a lease agreement on 28.11.1946. The same was renewed from time to time. On the strength of the agreement, defendant no.1 has raised permanent structures and installed a car serving /repairing unit for commercial use. The defendant no.1 had been paying rent as fixed. On account of illegal termination of tenancy in the event defendant no.1 is asked to vacate the land, it will sustain heavy loss and damages amounting to Rs.2,00,00,000/-(Two Crores). It is further pleaded that the original plaintiff was not the sole owner of the land. The lease agreement was executed by his father, Durgadutta Bhawsinka. Durgadutta Bhawsinka died leaving behind his sons and daughters. The defendants had denied any assurance given to the plaintiff with regard to payment of Rs.50,000/- towards monthly rent and vacation of the premises. Rent was offered, but the plaintiff refused to accept the same. Tenancy being irrevocable, Section 106 of T.P.Act will not come to play. Further the rent having been accepted by the plaintiff, the existence or non-existence of agreement is immartial. If at all the plaintiffs are interested in enhancing the monthly rent, defendant no.1 is willing to pay it provided it should be a reasonable one.
4. The suit was decreed. Assailing the said judgment and decree, the defendants filed R.F.A.No.10 of 2016 in the court of the learned District Judge, Cuttack. During pendency of the appeal, they filed an application under Order 41 Rule 27 C.P.C for acceptance of the original pass book of Bank of Baroda of Account No.25050500005169 of Bharat Motors, original old pass book of Bank of Baroda of Account No.25050200000410, electric bills dtd.25.12.15 and 22.04.2010, Municipality tax receipt of the year 2010 & 2014 bearing no.834 and the original letter along with postal receipt and Bank Cheque and endorsement. It is stated that those documents were misplaced at the office of the advocate. The same could not be produced in the trial court in spite of due diligence. The documents are very much vital for deciding the issue. The respondents filed objection to the same contending that the documents sought to be introduced by way of additional evidence have got no relevance for adjudication of the dispute between the parties. The learned appellate court in an elaborate order came to hold that the petition of the appellants does not satisfy the ingredient of Clause (b) of Rule 27 of Order 41 C.P.C an rejected the petition.
5. Heard Mr.B.Routray, learned Senior Advocate along with Mr.S.Das, learned Advocate for the petitioners and Mr.S.P.Mishra, learned Senior Advocate along with Mr.L.K.Moharana, learned Advocate for the opposite parties.
6. Mr.Rourtray, learned Senior Advocate for the petitioners argued with vehemence that the application under Order 41 Rule 27 C.P.C. has to be considered at the time of final hearing of the appeal on merit. He submitted that the appellate court has not pronounced the judgment, but rejected the application for additional evidence without considering the matter in its proper perspective. He further submitted that the documents in question are vital for just decision of this case. The same would unerringly show that the defendants used to pay Rs.10,000/- towards monthly rent, constructed the building and took electric connection. Further the appellants used to sent Rs.10,000/- towards monthly rent from November, 2013 to March, 2014. But then the same were return back with the endorsement that the respondents refused to take delivery of the same. The municipality tax receipt and the electric bills would show that the house was assessed to tax and the appellants used to pay electric bills. He relied on a decision of the apex Court in the case of Union of India Vrs. Ibrahim Uddin and another (2012) 8 SCC 148.
7. Per contra, Mr.S.P.Mishra, learned Senior Advocate for the opposite parties reminded the Court with regard to scope of interference of the order passed by the Court in an application under Article 227 of the Constitution. He submitted that the power under Article 227 of the Constitution cannot be exercised to correct all errors of judgment of a Court acting within the limits of its jurisdiction. He further submitted that the defendants are tenant. They have challenged the judgment and decree of the learned trial court before the learned appellate court. The documents sought to be produced by way of additional evidence are not vital for the just decision of the case. The petition has been filed to protract the litigation. The appeal was heard on many occasions on merit along with an application for additional evidence. The learned trial court has rightly rejected application. To buttress his submission, he relied upon the decisions of the apex Court in the case of Arjun Singh alias Puran Vrs. Kartar Singh and others, AIR 1951 193.
8. Really two points arise for consideration of this Court:
1) What is the stage for consideration of the application under Order 41 Rule 27 C.P.C. ?2) Whether the appellate court requires the documents so as to enabling it to pronounce the judgment ?
Point No.1.
9. Order 41 Rule 27 of C.P.C., which is hub of the issue, is
quoted below:-
"27. Production of additional evidence in Appellate Court.-(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 examined.(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
10. In Persotim Thakur Vrs. Lal Mohar Thakur and others, AIR 1931 P.C.143 is the locus classicus on the subject. It was held that under Cl.(1) (b) of Rule 27 it is only where the appellate Court "requires" it, (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when on examining the evidence as it stands some inherent lacuna or defect becomes apparent. 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 it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing (emphasis laid).
11. The same view was reiterated in Arjun Singh alias Puran (supra). Taking a cue from Parsotim Tahkur (supra), the apex Court held:
"7. ...............The true test, therefore, is whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced."(emphasis laid)
12. In Ibrahim Uddin (supra), the apex Court held thus:-
"47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record such application may be allowed.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."
13. The certified copy of the order-sheet reveals that an application under Order 41 Rule 27 C.P.C. was filed on 25.8.2016. The learned appellate court adjourned the matter to 2.9.2016 for hearing of the petition and appeal. On 2.9.2016 the matter was adjourned to 15.9.2016 for hearing of the petition as well as the appeal. The case suffered several adjournments. On 21.10.2016, the appeal was heard in part. Hearing continued in several occasions. The appeal was heard on 27.10.2016, 4.11.2016, 18.11.2016, 16.12.2016, 28.2.2017 and 24.3.2017. By order dated 6.4.2017, the learned appellate court rejected the application for additional evidence. In view of the above, it cannot be said that the appellate court has not considered the application for additional evidence at the time of hearing of the appeal.
Point No.2
14. The case of the appellants does not come within the ambit of
Clause (a) and (aa) of Rule 27, Order 41 C.P.C. since the appellants do not
assert that they had produced the documents in lower court and the court
refused to accept the documents and that the documents were not within
their knowledge for which, in spite of due diligence, they could not
produce the documents in the learned trial court. According to the
appellants, the documents are vital and would enable the appellants to
pronounce the judgment. The same were missed in the office of the
advocate, but cursorily the date of tracing of those documents has not
been mentioned. The learned appellate court held that D.W.1, in his
evidence, has not uttered a word about misplacing of documents in the
chamber of the conducting advocate. The appellants have not assigned
any reason for which the documents can be held to be relevant for
pronouncement of the judgment. The suit is for eviction and damages with
interest. The documents sought to be introduced by way of additional
evidence will no way help the appellate court to pronounce the judgment.
The appellate court is able to pronounce the judgment on the available
material on record without taking into consideration the additional
evidence sought to be adduced.
15. In the wake of the aforesaid, the petition, sans merit, is dismissed. No costs. The learned District Judge, Cuttack shall pronounce the judgment by end of June, 2017.
