Lakshman Purbey vs Jibachh Purvey and Others

Chakradhari Sharan Singh, J.—Heard Mr. Anil Kumar Jha, learned senior counsel appearing on behalf of the petitioner, in spite of service of notice, the private respondents have not appeared. The petitioner is aggrieved by an order dated 19.11.2010 passed in T.A. No. 100 of 2007 by learned Additional District Judge, F.T.C.-III, Madhubani whereby and whereunder a petition filed by the appellant-the State of Bihar under Order 41, Rule 27 of the CPC (in short ''the Code'') came to be allowed permitting them to produce additional evidence at the stage of appeal.

My attention has been drawn straightway to the impugned order so as to contend that while allowing the application under Order 41, Rule 27 of the Code, the court below has failed to consider and discuss as to how the documents, sought to be produced by way of additional evidence by the appellants/respondent Nos. 7 and 8, were relevant for enabling the court to pronounce its judgment. Learned senior counsel has submitted that the documents, sought to be brought on record, have been mentioned in the impugned order but the appellate court below, with reference to contents of such documents, has not discussed or indicated as to how these documents were going to tilt the final adjudication in one way or the other. He submits that though the appellate court may, if it feels at the time of final hearing of the appeal that certain documents are required for pronouncement of judgment, permit a party to produce such documents or take such documents into evidence but, before exercising such discretion, there must be application of mind by the appellate court, which must be reflected in the order permitting a party to produce such additional evidence.

He further submits that, though in the impugned order, it has been mentioned that the court is exercising power under Order 41, Rule 27(1)(b) of the Code but in fact the court proceeded on an application filed by the appellant under Order 41, Rule 27(1)(aa) of the Code in this regard and as such the court was required to scrutinize as to whether these documents could not be produced in course of trial before the trial court, in spite of due diligence exercised by the party concerned.

Learned senior counsel has placed reliance upon two Supreme Court judgments in support of his submission reported in Natha Singh and Others Vs. The Financial Commissioner, Taxation, Punjab and Others, and The Land Acquisition Officer, City Improvement Trust Board Vs. H. Narayanaiah and Others, . He has also placed reliance upon a judgment of Privy Council reported in AIR 1931 143 (Privy Council) to contend that the appellate court must record reasons while exercising its power under Order 41, Rule 27 of the Code. He has further placed reliance upon another judgment of the Supreme Court reported in Union of India (UOI) Vs. Ibrahim Uddin and Another, to contend that power under Order 41, Rule 27 of the Code cannot be exercised by the appellate court without appreciating the evidence available on record. An order for production of additional evidence, according to him, can be passed only after the appellate court has considered and appreciated the evidence already on record and come to a conclusion that it requires certain documents to be produced for pronouncement of judgment.

The Supreme Court in the case of Natha Singh (supra) while dealing with provisions of Order 41 Rule 27 of the Code has held in paragraph 7 that a discretion given to the appellate court to receive and admit additional evidence under Order 41, Rule 27 is not an arbitrary one but is a judicial discretion circumscribed by the limitations specified in the said provision. The court has further held that if additional evidence is allowed to be adduced contrary to the provisions governing such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on record will have to be ignored. In paragraph 10 of the said judgment the Supreme Court has laid down the following test:--

The true test to be applied in dealing with applications for additional evidence 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.

Further the Privy Council in case of Parsotim v. Lal Mohar (supra) considering the provisions of Order 41, Rule 27 of the Code held that where the appellate court adopts the procedure as prescribed under Order 41, Rule 27, the court is bound to record its reasons for so doing and under Order 41, Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. Relevant excerpts from judgment of Privy Council in case of Parsotim v. Lal Mohar (supra) are being quoted hereinbelow:--

This is laid down in most positive terms by Lord Robertson in Kessowji Issur v. G.I.P. Ry. (1) (at p. 122 of 34 I.A). He was dealing with the words of S. 568 of the Code of 1882, but they are substantially the same as those of O. 41, Rule 27, of the present Code. 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 R. 27(2) to record its reasons for so doing and under R. 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. Their Lordships regret to find that so for as the record discloses, none of these conditions was complied with in the present case.

It is apparent from the impugned order that the court below has failed to discuss as to how it was difficult for the court to pronounce judgment on the basis of documents available on record. It has further failed to record any reason as to how the documents, said to be taken into evidence by way of additional evidence, were required for pronouncement of judgment.

I find substance in the submission made on behalf of the petitioner by learned senior counsel in the light of judicial pronouncements noticed above.

Learned senior counsel is also right in his submission, relying upon Supreme Court judgment in the case of Union of India v. Ibrahimuddin (supra), that unless the appellate court had already appreciated the documents on record, it could not have directed for production of additional evidence at the instance of the appellant-the State of Bihar. In view of the above discussion, the impugned order dated 19.11.2000 passed in T.A. No. 100 of 2007 by learned Additional District Judge, F.T.C.-III, Madhubani cannot be sustained. The same is, accordingly, set aside. The matter is remanded back to the Court of learned Additional District Judge, F.T.C.-III, Madhubani to pass order afresh after taking into consideration the material already available on record and considering the requirement/desirability of production of additional evidence for pronouncement of judgment.

This writ application is, accordingly, allowed.