Delta Marine Company vs Atlanta Infrastructure Ltd. And Others

K.R.Mohapatra, J

Due to outbreak of COVID-19, this matter is taken up through Video Conferencing.

Heard Mr. S.P. Mishra, learned Senior Advocate being assisted by Ms. Ekta Agarwal, learned counsel for the petitioner and Mr. Om Swarup,

learned counsel for the contesting opposite party no.1.

The petitioner in this CMP seeks to assail the order dated 18.02.2020 (Annexure-12) passed by learned 1st Addl. District Judge, Khurda, whereby

he rejected an application under Order XLI Rule 27 C.P.C. filed in RFA No. 47 of 2019 pending before him.

Mr. Mishra, learned Senior Advocate appearing for the petitioner submits that T.S. No. 176 of 2001 was filed by the plaintiff-petitioner with a

prayer to pass a decree of permanent injunction restraining the defendant no.1-opposite party no.1 to draw the bank guarantee of the plaintiff

deposited with the proforma defendant no.2-Bank (opposite party no.2 herein). The plaintiff-petitioner further prayed for a decree to declare the

agreement dated 16. 02.2001 including arbitration clause as null and void and unenforceable. It further prayed to declare the bank guarantees dated

13.03.2001, 04.04.2001 and 09.05.2001 executed in favour of defendant no.1-opposite party no.1 as null and void along with other relief. The suit was

dismissed vide judgment and decree dated 08.11.2019 against which the plaintiff-petitioner preferred RFA No. 47 of 2019, which is now pending

before learned 1st Addl.District Judge, Khurda. During pendency of the appeal, the plaintiff-petitioner filed an application under Order XLI Rule 27

C.P.C. on 24.01.2020 to accept and admit the report of forensic expert as well as the letter dated 04.12.2019 issued by Punjab & Sind Bank, Mumbai

to it enclosing a copy of the letter dated 14.11.2019 issued by the defendant no.1-opposite party no.1 to the defendant no.2-Bank, as additional

evidence. It was contended in the said application that such an occasion arose due to the fact that during pendency of the suit, some interrogatories

were put to the defendant no.1-opposite party no.1 by the plaintiff-petitioner vide Annexure-5, which was replied vide Annexure-6. The said reply was

supported by an affidavit sworn in by the Managing Director of defendant no.1-opp. party no.1 Company. From those documents, the plaintiff-

petitioner could assume that the defendant no.1 is trying to play fraud on Court as the genuineness of the signatures of the Managing Director of

defendant no.1 were doubtful. During pendency of the appeal, the defendant no.1 in furtherance of its fraudulent activities also sent a letter to the

defendant no.2-Bank for encashment of the bank guarantee claiming an imaginary amount due to it. Hence, in order to ascertain the act of fraud, the

plaintiff-petitioner sent the documents containing the admitted signatures of the Managing Director of defendant no.1-Company, i.e., agreement dated

16.02.2001, the letter of termination and letters of invocation of bank guarantee along with the reply to the interrogatories (Annexure-6) and the

Vakalatnama (Annexure-7) to the forensic expert, namely, SQUARE Advisors for their comparison. But, the plaintiff-petitioner received the report of

forensic expert on 04.12.2019, i.e., after disposal of the suit. As such, the aforesaid petition was filed to mark those documents as additional evidence.

The defendant no.1-opp. party no.1 filed an objection to the same contending that since fraud has been alleged against the defendant no.1-opposite

party no.1, there should be a specific pleading to that effect, but there is no such specific pleading or evidence available on record in support of the

documents intended to be marked as additional evidence. Considering the rival contentions of the parties, learned 1st Addl. District Judge, Khurda

rejected the petition filed under Order XLI Rule 27 C.P.C. by the plaintiff-petitioner.

4.1 Mr. Mishra, learned Senior Advocate further submits that from the report of forensic expert intended to be marked as additional evidence, it is

manifest that the defendant no.1-opposite party no.1 has committed fraud, not only on the plaintiff but also on Court. If the plaintiff becomes

successful in establishing the same, then the judgment passed by the learned trial Court will be a nullity. Since the Managing Director of defendant

no.1 did not enter into the witness box to examine himself, the said signatures could not be confronted to him. No pleading in support of those

documents could have been made before learned trial Court as the said documents were received by the plaintiff after disposal of the suit. As such,

the petition filed under Order XLI Rule 27 C.P.C. was bona fide. Further, the petition under Order XLI Rule 27 C.P.C. should have been heard at the

time of final hearing of the appeal, while scrutinizing the evidence available on record. In support of his case, he relied upon the decisions in the cases

of Khagapati Gouda and others â€"v- State of Odisha and others, reported in 2017 (I) OLR 174K, amlesh Manjari Devi â€"v- Satyanarayan Aich

(dead) and eleven others, reported in 2008 (II) OLR 383, North Eastern Railway Administration, Gorakhpur â€"v-Bhagwan Das (dead) by LRS.,

reported in (2008) 8 SCC 511, Sukru Bibhar â€"v- Tileswar Naik and others, reported in 1998 (II) OLR 12 9and Banchanidhi Behera â€" v- Ananta

Upadhaya and others, reported in AIR 1962 Orissa 9.

4.2 He, therefore, prays for setting aside the impugned order under Annexure-12 and to remit the matter back to the learned 1st Addl. District Judge,

Khurda to hear the petition under Order XLI Rule 27 C.P.C. afresh at the time of hearing of the appeal.

Mr. Swarup, learned counsel for the contesting opposite party no.1, on the other hand, vehemently argued that the petition under Order XLI Rule 27

C.P.C. was not maintainable. The documents intended to be adduced as additional evidence by the plaintiff-petitioner does not qualify the standard of

being called as evidence. Authenticity of the documents sent to the forensic expert and competency of the forensic expert are disputed. The plaintiff-

petitioner had never approached the learned trial court to send the aforesaid documents to the forensic expert. In fact, the plaintiff-petitioner sent the

documents to the forensic expert of his own and stated to have received the report on 04.12.2019, i.e., after pronouncement of the judgment in the

suit. The additional evidence sought to be adduced by the plaintiff-petitioner is shrouded with cloud of doubt. He further submitted that fraud has to be

specifically pleaded and proved. The endeavour made by the plaintiff-petitioner to prove fraud through the proposed additional evidence has never

been pleaded. Thus, the learned appellate Court has committed no error in dismissing the said petition. He further argued that although the proper

course is to consider the petition under Order XLI Rule 27 C.P.C. at the time of hearing of the appeal, but there is no bar to consider the same at any

stage before commencement of hearing of the appeal, if occasion so arises. There is also no material on record to show that as to when the plaintiff-

petitioner had sent the documents to the forensic expert. The documents sought to be accepted and admitted as additional evidence are not relevant

for adjudication of the appeal. It will also no way influence the judgment already rendered by the learned trial Court. He, therefore, prays for dismissal

of the CMP.

Heard learned counsel for the parties at length and perused the materials available on record.

It is apparent that the plaintiff-petitioner had never approached the learned trial Court to send the admitted signatures to be compared with doubtful

signatures made in the affidavit to the reply to the interrogatories (Annexure-6) as well as in the Vakalatnama (Annexure-7). But Mr. Mishra, learned

Senior Advocate appearing for the plaintiff-petitioner submits that the plaintiff was in doubt about the genuineness of the signature made in the

Vakalatnama as well as in the affidavit made in support of the reply (Annexure-6) to the interrogatories under Annexure-5. Hence, in order to get a

clarification, the plaintiff-petitioner initially sent the documents to the forensic expert to ascertain as to whether it can take steps for adducing evidence

in that respect. But before receiving the report from the forensic expert, the suit was disposed of. It further appears from the record that the

Managing Director of defendant no.1-opposite party no.1, who is the author of those signatures, had not entered into the witness box. Thus, there was

no occasion on the part of the plaintiff-petitioner to confront those documents/ signatures to him.

7.1 The rival contentions raised by learned counsel for the parties make it clear that the case of the plaintiff-petitioner falls under Order XLI Rule

27(aa) and (b) C.P.C. The plaintiff-petitioner could not have obtained the report of forensic expert before pronouncement of the judgment by the

learned trial Court in spite of due diligence. The letter dated 14.11.2019 of the defendant no.1-Company was communicated to the plaintiff-petitioner

by the defendant no.2-Bank on 04.12.2019, i.e., after disposal of the suit. It further appears that the plaintiff-petitioner alleges that the defendant no.1-

opposite party no.1 has played fraud on court. The Hon’ble Supreme Court in the case of North Eastern Railway Administration, Gorakhpur â€"v-

Bhagwan Das (Dead) by LRs., reported in 2008 (8) SCC 511 held at paragraph-19 as follows:

“19. If the stand of the appellant, which, according to them, is borne out from the documents now on record, is found to be correct, then obviously these will

have material bearing on the core issue, namely, whether the decree dated 13.3.2001 is a nullity, having been allegedly obtained by concealing material facts

and playing fraud on the court. It is trite that a judgment or decree by the first court or by the highest court obtained by playing fraud on the court is a nullity and

non est in the eye of the law.â€​

If it is proved that the defendant no.1-opposite party no.1 has played fraud on Court, then the judgment passed by the learned trial Court which is

impugned in RFA No. 47 of 2019, will be a nullity. Thus, the petition under Order XLI Rule 27 C.P.C. assumes significance to be considered by

learned 1st Addl. District Judge, Khurda.

It is the trite law that the discretion to consider the petition under Order XLI Rule 27 CPC by the appellate Court should be exercised judicially and

with circumspection. In case of Union of India Vs. Ibrahim Uddin, (2012)8 SCC 148 it is held as follows:

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: Arjan Singh v. Kartar Singh & Ors., AIR 1951 SC 193; and Natha Singh & Ors. v. The Financial Commissioner,

Taxation, Punjab & Ors., AIR 1976 SC 1053).â€​

Further, in para-52 of the said case law, it is held as follows;

“52. Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency

of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion

that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for

taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-

application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/in-executable and

is liable to be ignored.â€​

9.1 Hon’ble Supreme Court in A.Andisamy Chettar Vs. A.Subburaj Chetttiar, reported in (2015) 17 SCC 71,3 while discussing the scope and

ambit of provision of Order-XLI Rule 27 CPC also approved the ratio decided in the case of Ibrahim Uddin (supra).

9.1 This Court has also taken the same view in the cases of Banchhanidhi Behera (supra), Kamalesh Manjari Devi (supra), and Khagapati Gouda

(supra). In that view of the matter, there can be no quarrel over the proposition of law that the application under Order-XLI Rule 27 CPC can only be

considered at the time of hearing of the appeal.

9.2 Thus, the contention raised by Mr. Swarup to the effect that there is no bar to consider such a petition at any time before commencement of the

hearing of the appeal, does not hold good.

The learned trial Court proceeded on a footing that particulars of fraud to be proved through the documents proposed to be adduced as additional

evidence has not been pleaded. In that respect, it can only be said that when the matter came to the notice of the plaintiff-petitioner after

pronouncement of the judgment in the trial Court, such a pleading could not have been taken or evidence to that effect could not have been adduced

by the plaintiff-petitioner in the trial Court. Be that as it may, the petition under Order XLI Rule 27 C.P.C. in all fairness should be considered at the

time of hearing of the appeal as has been held by this Court as well as by the Hon’ble Supreme Court.

1 These material aspects have not been taken into consideration by the learned appellate Court while passing the impugned order.

A further contention is raised by Mr. Swarup, learned counsel that the additional evidence sought to be adduced does not qualify the test to be

admitted as such. This aspect was not raised before learned appellate Court. Learned appellate Court is competent to deal with it, if contention to that

effect is raised.

In that view of the matter, the impugned order is not sustainable. Accordingly, this Court while setting aside the impugned order dated 18.02.2020

(Annexure-12) passed by learned 1st Addl. District Judge, Khurda, in RFA No. 47 of 2019, remits the matter back to the learned 1st Addl. District

Judge, Khurda to consider the petition under Order XLI Rule 27 C.P.C. afresh at the time of hearing of the appeal.

With the aforesaid observation and direction, the CMP is disposed of.

1 Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed

in this Court’s Notice No.4587 dated 25.03.2020.