High Court
Case Details
CRP 563/2012 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY Heard Mr. Das, learned senior counsel for the petitioners and Mr. Ali, learned c ounsel appearing for the respondents.
Legal Reasoning
The petitioners, who are the appellants in Title Appeal No. 12/2 011, by the present petition have challenged the order dated 9.10.2012 passed by the learned Addl. District Judge, Kamrup Guwahati in Misc. (J) Case No. 13/2011 , arising out of the aforesaid appeal, rejecting the application filed under Ord er 41 Rule 27 CPC for accepting additional evidence i.e. the examination of the person who is competent to prove Ext. P, death certificate dated 29.4.2010 state d to be issued by the Registrar of Births and Deaths, Gauhati Municipal Corporat ion. The respondent No. 1, as plaintiff instituted Title Suit No. 171 /2006 for declaration of the right, title and interest and recovery of khas poss ession, based on three sale deeds including the sale deed dated 3.4.1997 (Ext. 3 ) executed by one Gour Mohon Das in favour of the plaintiff transferring the rig ht, title and interest in respect of 3 kathas of land. The present respondent in stituted the said suit for declaration of right, title and interest in respect o f other lands apart from the land covered by the sale deed dated 3.4.1997 (Ext. 3). The said suit was contested by the present petitioner by filing written statement contending that the sale deed dated 3.4.1997 (Ext. 3) is fraud ulent, as Gour Mohan Das, stated to be the vendor, died on 25.11.1995 i.e. almos t 1 and ‰ year before the alleged date of execution of the sale deed dated 3.4.1 997 (Ext. 3). After the closure of the evidence of the defendants an application was filed before the trial court for allowing them to prove the aforesaid death certificate dated 29.4.2010 (Ext. P) which was allowed by the trial court on 23 .6.2013, against which though the present respondent No. 1 preferred CRP No. 278 /2010, the same was dismissed vide order dated 5.8.2010. The suit was, thereafter, decreed by the trial court on 4.3.2011 , against which Title Appeal No. 12/2011 has been preferred, wherein an applicat ion under Order under 41 Rule 27 read with Section 151 CPC was filed by the pres ent petitioner, which was registered and numbered as Misc. (J) case No. 13/2011, praying for examination of the officer of the Office of the Registrar of Births and Deaths, Gauhati Municipal Corporation to prove the contents of Ext. P, the Death Certificate dated 29.4.2010, as the said Ext. P has been refused to be tak en in evidence by the trial court on the ground that the said document has not b een properly proved. The said application has been rejected vide order dated 9.1 0.2012. It has been contended by the learned senior counsel for the peti tioners that since the crux of the matter in the suit is as to whether Gour Moho n Das died on 25.11.1995, the appellate court ought to have allowed the petition er to adduce additional evidence as prayed for to prove the contents of Ext. P d eath certificate as the same is necessary to deliver the judgment by the appella te court.
Legal Reasoning
The said contention has been resisted by the learned counsel for the respondent No. 1 contending that the appellate court has rightly rejected t he petition filed under Order 41 Rule 27 CPC as the appellant cannot be allowed to fill up the lacuna by allowing the application filed under Order 41 Rule 27 C PC. The learned counsel referring to the decision in Union of India vs. Ibrahim Uddin, reported in (2012) 8 SCC 148 has submitted that even when such applicatio n is filed as per the provision of sub clause 1 of clause b of Order 41 Rule 27 CPC, it is to be considered at the time of hearing of the main appeal on merit s o as to find out whether the documents have any relevance/bearing on the issue i nvolved. The learned counsel, however, has submitted that the evidence sought to be adduced has no bearing on the issue involved and hence the first appellate c ourt has rightly dismissed the application filed under Order 41 Rule 27 CPC. I have considered the submission advanced by the learned counsel for the parties. Under Order 41 Rule 27 CPC additional evidence can be allowed to be adduced by the appellate court on the following exigencies: (cid:28)(a) The court from whose decree the appeal is preferred has refused to admit ev idence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwiths tanding the exercise of due diligence, such evidence was not within his knowledg e or could not, after the exercise of due diligence, be produced by him at the t ime when the decree appealed against was passed or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cau se. (cid:29) In the instant case the exigencies described in (a) and (aa) do not exist. What has been contended is that the said document i.e. the death cert ificate (Ext. P) is required to be proved by calling the competent person, as th e appellate court require the said document to pronounce the judgment, the issue involved being whether Gour Mohon Das died prior to the execution of the sale d eed dated 3.4.1997(Ext. 3). The Apex Court in Ibrahim Uddin (supra) has held that considerat ion of an application under Order 41 Rule 27 CPC, to find out whether the docume nt/evidence sought to be adduced have any relevance or bearing on the issues inv olved, is at the time of hearing of the appeal on merit. It has further been obs erved that the admissibility of additional evidence does not depend upon the rel evancy to the issue on hand, or on the fact, whether the applicant had an opport unity 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 t o enable it to pronounce the judgment or for any other substantial cause. It has further been observed that the true test, therefore, is whether the appellate c ourt is able to pronounce judgment on the materials before it without taking int o consideration the additional evidence sought to be adduced. Such occasion woul d arises only if on examining the evidence as it stands the court come to the co nclusion that some inherent lacuna or defect becomes apparent to the court. In the instant case the application under Order 41 Rule 27 CPC h as been decided not at the stage of hearing of the appeal. In view of the above, the order dated 9.10.2012 rejecting the ap plication filed under Order 41 Rule 27 CPC is set aside. The matter is remitted to the first appellate court to hear the said application while hearing the main appeal. Upon hearing the appeal if the first appellate court finds that it is not possible to pronounce the judgment in the absence of the additional ev idence sought to be adduced necessary order shall be passed allowing the petitio ner to adduce additional evidence, otherwise the appeal shall be decided on the basis of the evidence available on record. The parties are directed to appear before the first appellate co urt on 15.11.2013 i.e. the date already fixed by the first appellate court.