Rajiv Sharma, J.@mdashThis Regular Second Appeal is directed against the judgment and decree dated 3.4.2001 rendered by the Additional District Judge (1) Kangra at Dharmashala in Civil Appeal No. 98-K/98.
2. "Key facts" necessary for the adjudication of this Regular Second Appeal are that predecessor-in-interest of respondent-plaintiff, Sandhya Devi (hereinafter referred to as the "plaintiff" for convenience sake) filed a suit for declaration and in the alternative for possession against the appellants-defendants (hereinafter referred to as the "defendants" for convenience sake). The suit was filed to the effect that plaintiff was owner in possession of the land as detailed in the head note of the plaint and entries of tenancy in favour of defendants in the revenue record were wrong, illegal and unauthorized. The defendants or their predecessors were never inducted as tenant by the plaintiff. The suit land was under mortgage and redeemed by the plaintiff vide Rapat Roznamcha No. 27 dated 18.9.1992 on the basis of order of Senior Sub Judge, Dharamshala. In the alternative, plaintiff also prayed that in case it was found that plaintiff is not entitled to the decree as per prayer "A" then he be granted a decree for possession in respect of the suit land. The suit land was under mortgage with mortgagee and the same was got redeemed vide judgment dated 31.7.1991 rendered by the Senior Sub Judge, Dharamshala in Civil Suit No. 158/74. The possession was also delivered to the plaintiff on 18.9.1992 by the Senior Sub Judge, Dharamshala on the spot vide rapat roznamcha No. 27. Mutation No. 417 was entered to this effect. Neither the defendants nor their ancestors were inducted as tenant, hence, the entry of tenancy after redemption of the mortgage was stated to be wrong, illegal and null void.
3. Suit was contested by the defendant. According to him, the land was under the tenancy prior to the inception of the mortgage and if it was not so proved then the tenant of the mortgagee was a tenant for all intents and purposes and in that event also, the defendant was tenant over the suit land. He has become owner of the suit land.
4. Plaintiff filed replication. Sub-Judge 1st Class framed issues on 3.1.1994. The suit was decreed by the Sub-Judge 1st Class on 20.8.1998. Defendants feeling aggrieved by the judgment and decree dated 20.8.1998 preferred an appeal before the Additional District Judge (1), Kangra at Dharmashala. He dismissed the same on 3.4.2001. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law on 20.8.2001.
1. "Whether the courts below have failed to appreciate evidence on its proper and legal sense and specially has failed to take into consideration the documentary evidence pertaining to the revenue record Ex. D-1 to D-6?
2. Whether the courts below have failed to take adverse inference of the fact that plaintiff has not examined himself as a witness and has not put himself for cross-examination. Therefore, adverse inference was required to be taken as per the settled law decided in cases (1) Kamla Devi v. Dev Raj-RSA No. 531 of 2000 decided on 13.11.2000, (2) Harswaroop v. Ramlok Sharma, Civil Revision No. 272 of 1996 decided on 30.5.2000, (3) Gurdev v. Gulabo R.S.A. No. 302 of 1992 decided on 24.4.2000 and (4)
5. Mr. R.K. Gautam, learned Senior Counsel for the appellants, on the basis of the substantial questions of law, has vehemently argued that both the courts below have misconstrued the evidence led by the parties. He has also argued that the defendant was tenant under the mortgagor.
6. Mr. Ajay Sharma, has supported the judgments and decrees passed by both the courts below.
7. I have heard learned counsel for the parties and have gone through the record carefully.
8. Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid repetition of discussion of evidence.
9. PW-1 Amar Chand has produced copy of power of attorney Ext. P.W. 1/A. He has specifically deposed that he was well conversant with the facts of the case. Plaintiff was owner of the suit land. The suit was filed for redemption of the suit land. Decree was passed in favour of the plaintiff. The land was 10 kanals 7 marlas. He has tendered in evidence Ex. PA to Ex. PC.
10. Defendant Pritam has appeared as D.W. -1. He did not know when the tenancy was created. He has simply stated that his father had been paying rent to the original owner. He has produced in evidence Ex. D-1 to Ex. D-4.
11. According to Jamabandi for the year 1987-88 Ex. P-1, defendant is shown to be tenants "Gair Murusi Tehat Murtan". According to Jamabandi for the year 1992-93 Ex. D-2, the same position is reflected. It is not discernible from the Jamabandi Ex. D-4 for the year 1965-66 whether the defendants were tenants under the mortgagee or mortgagor. According to Jamabandi for the year 1917-18 Ex. D-6 and for the year 1990-91 Ex. D-7 neither the defendant nor his ancestors were inducted as tenant under the original owners such as Chaudhary Hardyal etc. The plaintiff was put in possession vide rapat rojnamcha dated 18.9.1992.
12. This Court in
"18. Section 2(10) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 defines "land owner" as meaning a person defined as such in the Himachal Pradesh Land Revenue Act, 1953 or the Punjab Land Revenue Act, 1887, as the case may be and shall include the predecessor or successor in interest of the land owner''. The definition of the word "land owner" as contained in section 4(9) of the Himachal Pradesh Land Revenue Act, 1953 as well as in section 3(2) of the Punjab Land Revenue Act, 1887 is practically the same. Both the sections provide that "land owner" does not include a tenant or an assignee of land revenue but does include a person to whom a holding revenue or of a sum recoverable as such an arrear, and every other person not hereinbefore in this clause mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate. This definition, prima facie, does not include a mortgagee. Therefore, a person holding the land as a tenant under the mortgagee cannot be deemed to be a tenant under a landowner. Therefore, the protection which was available to the tenant inducted by the mortgagee in Bhagat Ram''s case (supra), cannot be extended to the defendant in the present case.
19. Similarly in
CMP No. 626/2010
13. Appellant has also filed an application under Order 41 Rule 27 Code of Civil Procedure, plaintiff has filed the detailed reply to the same. Appellant wanted to produce on record copy of proceedings conducted by Land Reforms Officer, Kangra dealing with form No. L.R.-V under the H.P. Land Reforms Act and Rules. According to the appellant, plaintiff has admitted that defendant is tenant and had applied for redemption of land under H.P. Tenancy and Land Reforms Act. The Civil Suit was instituted on 2.3.1993 and the application filed is belated. These documents are not necessary for the adjudication of the matter.
14. Their Lordships of the Hon''ble Supreme Court in
"36. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide:
37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide:
38. Under Order XLI, Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors. (supra)].
39. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide:
40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.
42. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the Court of further appeal to see, if the discretion under this rule has been properly exercised by the Court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the rule.
43. The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate Court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.
44. It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice - delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. (Vide:
45. In
"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 insistence by leading other evidence."
(Emphasis added)
A similar view has been reiterated by this Court in
46. A Constitution Bench of this Court in K. Venkataramiah (Supra), while dealing with the same issue held:
"It is very much to be desired that the courts of appeal should not overlook the provisions of cl. (2) of the Rule and should record their reasons for admitting additional evidence..... The omission to record reason must, therefore, be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory."
(Emphasis added)
In the said case, the court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. In such a fact-situation, the order allowing such application did not vitiate for want of reasons.
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.
Stage of Consideration:
49. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. 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. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide:
15. Therefore, the present application is dismissed.
16. The substantial questions of law are answered accordingly.
17. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the appeal and the same is dismissed. Pending application, if any, also stands disposed of. No costs.
