Runu Basu & Anr. vs Bidyut Mukherjee & Ors.

The primary grievance of the petitioners is that the appellate court below, while allowing an application under Order XLI Rule 27 of the Code of Civil

Procedure, took into consideration erroneous legal principles. The matter concerns a dispute relating to a co-operative society. There was initially an

arrangement between the petitioners and opposite party no. 1 to transfer the property in dispute in favour of the opposite party no. 1. Subsequently,

before such transfer even materialized, opposite party no. 1 apparently claimed to be a member of the co-operative society and filed a suit to that

effect. Such suit was dismissed, on which opposite party no. 1 preferred Title Appeal No. 23 of 2011, which is now pending before the Civil Judge

(Senior Division) at Durgapur, DistrictBurdwan.

On the other hand, the present petitioners also took out a challenge before the Registrar, Co-operative Societies against the resolution of the co-

operative society validating such membership of opposite party no. 1. Petitioners also averred that no transfer in respect of the property-in-question

was at all effected in favour of the opposite party no. 1. In such context, opposite party no. 1 took out an application in Title Appeal No. 23 of 2011

under Order XLI Rule 27 of the Code of Civil Procedure, thereby seeking to adduce as additional evidence, the award passed by the Assistant

Registrar of Cooperative Societies, Burdwan-III Range. Such application being allowed by the impugned order, petitioners have preferred the instant

revisional application.

Learned counsel for the petitioners submits that the finding of the appellate court in the impugned order, that such award may not be altogether

irrelevant, is erroneous on the face of it. It is submitted that since the said award is itself under challenge in an appeal before the Co-operative

Tribunal, the same could not be said to have attained finality. Moreover, allowing the application for additional evidence prior to taking up the appeal

for hearing itself, according to learned counsel for the petitioners, was de hors the settled position of law. It is argued by learned counsel for the

petitioners that the purported grant of membership to opposite party no. 1, if at all, would not amount to transfer of the right, title and interest of the

petitioners in favour of opposite party no. 1. As such, it could not be said that the award had any relevance to the title appeal preferred by opposite

party no. 1.

Although it is usual for courts to take up application under Order XLI Rule 27 of the Code of Civil Procedure at the time of hearing of appeal, non-

adherence to general practice ought not to vitiate the entire adjudication on such application, even if prematurely done. Since the appellate court

applied its mind and came to judicial conclusions on the said application, mere irregularity in taking up the application, prior to hearing of the appeal,

cannot be a ground to set aside the order passed on such application. As to the dispute being sub-judice before the Co-operative Tribunal, since the

award in question still stands, although under appeal, it could not be said that only on such ground, the appellate court ought to have precluded the

opposite party no. 1 from producing the said additional documents in evidence.

It appears in the instant case that the appellate court invoked in essence the provisions of Order XLI Rule 27 (1)(b) of the Code of Civil Procedure

and permitted adduction of additional evidence essentially on the ground that the appellate court required the document-in-question to be produced, to

enable it to pronounce judgment. As such, the grievance of the petitioners as to the recording of the relevance of such document, could not be of much

significance, since the finding in the impugned order as to the document being not altogether irrelevant is not a commentary on the relevance of the

document, as envisaged in the Evidence Act, for the purpose of disposal of the appeal itself. Evidentiary value of the said document as well as the

relevance of the same for the purpose of disposal of the appeal will only be considered by the appellate court at the time of final disposal of Title

Appeal No. 23 of 2011.

Any observation in the impugned order or in this order will not prejudice the appellate court at the time of final hearing of the said appeal. All

observations made herein and in the order impugned herein are tentative for the purpose of disposal of the application under Order XLI Rule 27 of the

Code of Civil Procedure and will not be of any influence on the judge of the appellate court at the time of disposal of the appeal. C.O. No. 3402 of

2017 is disposed of without interfering with the impugned order but in the light of the observations made above. There will be no order as to costs.

Urgent certified website copy of this order, if applied for, be made available to the petitioners upon compliance of all requisite formalities.