Leelabai vs Municipal Corporation of City of Hubli Dharwad

Anand Byrareddy, J.—The appeal coming on for admission is decided on a short point.

One of the substantial questions of law that would arise for consideration in the present appeal is, when an application filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the ''CPC'', for brevity) before an appellate court, whether the appellate court could proceed to render judgment without considering the application for additional evidence.

In the instant case on hand, the appellant was the defendant against whom a suit for declaration and injunction was filed by the Hubli-Dharwad Municipal Corporation. The suit was contested and ultimately the suit was decreed in favour of the respondent declaring that it was the owner of the property in question. The same having been challenged in appeal, the appellant had filed an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the ''CPC'', for brevity) and sought to produce 17 additional documents. The appellate court reserved the application to be decided along with the main appeal and did not pass any separate orders on the application and heard the matter on merits and judgment was rendered. In the course of the judgment, there is a reference to four of the additional documents that were sought to be produced in the application aforesaid and the court has held that the documents were not relevant and would not advance the case of the appellant.

The learned Counsel for the respondent would also point out that the documents in question were not relevant for the simple reason that the suit was of the year 1977, which was pending in the year 1986 and the documents that were sought to be produced were of the year 1991 and therefore clearly they were documents that had come into existence much after the judgment and decree and therefore, could not be brought within the scope of Order XLI Rule 27 of the CPC.

The learned Counsel for the appellant places reliance on a decision of the Supreme Court in the case of Jatinder Singh and Another Minor through Mother Vs. Mehar Singh and Others, , wherein in a similar circumstance, an application was filed before the High Court under Order XLI Rule 27 of the CPC and the appeal had been contested without reference to the said application and that was sought to be questioned before the Supreme Court. The apex Court had held that an application having been filed under Order XLI Rule 27 the CPC and without deciding whether the additional evidence could be permitted to be produced and the application having been ignored, would result in a miscarriage of justice and that the court was duty bound to consider the application and accordingly had set aside the judgment and remanded the matter for consideration of the application. By the same token of reasoning, the learned Counsel would submit that the judgment is rendered a nullity if the application filed has been overlooked notwithstanding that the documents which were sought to be produced along with the application have been selectively addressed and negated and therefore on this limited ground, the counsel for the appellant seeks that the matter be remanded for a fresh consideration of the application and further proceedings.

While the learned Counsel for the respondent would yet resist the same as it would be a futile exercise in the appellant seeking to press the application under XLI Rule 27 of the CPC, for none of the reasons for which such additional evidence could be received are present in the case on hand. However, from a reading of Order XLI Rule 27 of the CPC, if the appellate court requires any document to be produced or if any other substantial case could be made out, it is still open for additional evidence to be received in evidence. It is therefore for the appellant to satisfy the lower appellate court as to the need or the substantial case that could be made out with reference to the documents in question and if that were possible, it is for the appellate court to receive the same in evidence.

Hence, without going into the merits or otherwise of the documents that are sought to be produced, as the lower appellate court has not expressed any opinion as to whether or not an application under Order XLI Rule 27 CPC, for any of the reasons that are to be established in accepting additional evidence were present, the question is left open and on the premise without deciding the application under Order XLI Rule 27 CPC, the appellate court could not have proceeded to judgment.

The appeal is allowed. The matter is remanded for a fresh consideration of the application under Order XLI Rule 27 in the first instance and thereafter depending on the opinion expressed on the said application, the court may either reaffirm the judgment that was rendered earlier or proceed to deal with it in accordance with law with reference to the additional evidence.

Having regard to the fact that this would put the respondent to some inconvenience and hardship, it is appropriate that the appellant pay costs to the respondent in a sum of Rs. 5,000/- which shall be paid to the respondent before the lower appellate court on such remand at the first date of hearing. The lower appellate Court shall issue notice to the parties and proceed on remand pursuant to this judgment. The Registry is directed to return the record to the lower appellate court.