Asharfilal vs State of U.P.

N.D. Ojha, J.—Consequent upon a notification being issued u/s 4 of the Indian Forests Act (hereinafter referred to as the Act) in respect of certain plots of land an objection was filed by Asharfi Lal applicant u/s 6 of the Act. His objection was opposed by the State of Uttar Pradesh but was allowed by the Forest Settlement Officer u/s 11 of the Act. Against that order the State of U.P. filed an appeal before the District Judge u/s 17 of the Act. In the appeal two applications were made for admission of additional evidence under Order 41 Rule 27 Code of Civil Procedure. An objection was filed by the applicant but these applications were allowed by the District Judge by his order dated 10th March, 1975. The present revision has been filed against this order of the District Judge.

It was urged by counsel for the applicant that keeping in view the language of Sub-section (2) of Section 18 of the Act as amended by the State of U.P. the District Judge had the power either to confirm, set aside or modify the order or remand the case to the Forest Settlement Officer with such directions as he thought fit but he did not have the jurisdiction to admit additional evidence. According to counsel for the applicant the provisions of Order 41 Rule 27 CPC were not applicable to an appeal u/s 17 of the Act. For the opposite party reliance was placed on Section 8(b) of the Act which confers on the Forest Settlement Officer the powers of a civil court in the trial of a suit. On its basis it was urged that the District Judge would also have the same powers as the civil court would have in the trial of a suit. It is not necessary to decide in the instant case as to the whether the provisions of Order 41 Rule 27 CPC in terms are applicable or not to an appeal u/s 17 of the Indian Forests Act because I am of the view that the District Judge was entitled to take additional evidence even if Order 41 Rule 27 CPC did not in terms apply to the appeal which have been filed before the District Judge u/s 17. The appeal before the District Judge is a first appeal in which questions of facts and questions of law both can be gone into. Such an appeal is in the nature of rehearing - see AIR 1941 5 (Federal Court) . It cannot be denied that the documents which have been accepted as additional evidence by the District Judge could, if they had been filed before the Forest Settlement Officer, have been accepted in evidence by the said officer. Since the appeal before the District Judge u/s 17 constituted rehearing of the whole matter, in my opinion the District Judge did have jurisdiction to accept the additional evidence. In Swastik Oil Mills v. H.B. Munshi AIR 1968 SC 843 the Supreme Court while considering the scope of the power of a revising authority under the Bombay Sales Tax Act held:

Whenever a power is conferred on an authority to revise an order, the authority is entitled to examine the correctness, legality and propriety of the order and to pass such suitable orders as the authority may think fit in the circumstances of the particular case before it. When exercising such powers, there is no reason why the authority should not be entitled to hold an enquiry or direct an enquiry to be held and, for that purpose, admit additional material.

Likewise in Arbind Kumar Singh Vs. Nand Kishore Prasad and Others, while dealing with the powers of revision u/s 64-A of the Motor Vehicles Act as amended by Bihar Act 17 of 1950 it was held:

If for the purpose of doing complete justice between the parties, the authority who hears the revision petition is satisfied that it is necessary to call for additional evidence, he may call for such evidence. There is no bar in the Act or the rules against an appellate or the revising authority taking into consideration additional evidence brought on the record, if the authority requires additional evidence to be Drought on the record or allows it to be brought out the record to do complete justice between the parties.

If power to entertain additional evidence can be exercised by the revision court in order to do complete justice between the parties it can certainly be exercised by the appellate court before whom the whole matter comes up for rehearing and which has the power to confirm, set aside or modify the order under appeal or remand the case with such directions as it thinks fit. In the instant case the District Judge while allowing the applications for additional evidence has specifically stated in his order that the documents sought to be filed were necessary to enable him to pronounce his judgment in a more satisfactory way. In view of this finding of the District Judge and in view of the law laid down in the cases aforesaid the District Judge cannot be said to have committed any such error in passing the order dated 10th March, 1975 which may justify interference u/s 115 Code of Civil Procedure.

Counsel for the applicant then urged that the District Judge was not right in confining the right of the applicant to produce evidence in rebuttal to documentary evidence alone. According to counsel the documents produced by the opposite party, for instance, copies of Khasra and Khatuni, had only a presumptive value and were not conclusive and the applicant was entitled to produce even oral evidence to rebut the presumption available to the opposite party in view of those documents. The applicant, according to his counsel, is also entitled to produce evidence even in regard to the genuineness of the documents filed, if necessary. I am of opinion that there is substance in this part of the submission made by counsel for the applicant. When additional evidence was accepted by the appellate court the applicant should have been given full opportunity to rebut the said evidence and he should not have been confined to produce documents only in rebuttal.

In view of the foregoing discussion the revision is partly allowed and while confirming the order of the District Judge accepting the additional evidence, it is modified to this extent that the applicant will be given opportunity to produce both oral and documentary evidence in rebuttal of the documents accepted as additional evidence. In view of their partial success the parties will bear their own costs.