The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Oct-2023 19:25:48 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1153 OF 2016 (An application under Article 227 of the Constitution of India) ***** T. Biranchi Narayan Patro …… Petitioner -Versus- .…… Opp. Parties Ch. Mohan Rao and others Advocates appeared: For Petitioner : Mr. S.S. Rao, Senior Advocate being assisted by Mr. Anish Ankur Mishra, Advocate For Opp. Parties : Mr. Sanjeev Udgata, Advocate (For Opp. Party No.1) Mr. Debendra Kumar Sahoo, Advocate (For LRs of Opposite Party No.2)
Decision
--------------------------------------------- Heard and disposed of on 06.10.2023 ---------------------------------------------- JUDGMENT K.R. Mohapatra, J. 1. This matter is taken up through hybrid mode. 2. Mr. Debendra Kumar Sahoo, learned counsel by filing Vakalatnama enters appearance on behalf of the legal heirs of deceased Opposite Party No.2. Vakalatnama is taken on record. 3. Order dated 12th July, 2016 (Annexure-5) passed by learned Additional District Judge, Kandhamal, Phulbani in CMP No. 1153 OF 2016 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Oct-2023 19:25:48 // 2 // R.F.A. No.9 of 2015 is under challenge in this CMP, whereby an application filed by the Appellant No.1-Petitioner under Order XLI Rule 27 CPC, has been rejected. 4. It is submitted by Mr. Rao, learned Senior Advocate appearing for the Petitioner that R.F.A. No.9 of 2015 arises out of the judgment and decree passed by learned Civil Judge (Senior Division), Phulbani in C.S. No.12 of 2013, which was filed by the Petitioner and Proforma Opposite Party No.2 for declaration of their right, title and interest over the suit house and for eviction of Defendant-Opposite Party No.1. The suit was dismissed on contest holding that the Petitioner-Plaintiff No.1 is not the title holder of the suit property. While adjudicating the suit, learned trial Court observed that the certified copies of the documents filed by the Appellants were not admissible in evidence. The original documents, certified copies of which are filed before learned trial Court, were available in the case record of learned S.D.J.M., Phulbani in a criminal case. Thus, the Plaintiffs produced the certified copies of those documents. However, during pendency of the appeal, the Appellants obtaining the original documents from the Court of learned S.D.J.M., Phulbani filed an application under Order XLI Rule 27 CPC to admit those documents as additional evidence. 5. It is his submission that those documents show the flow of title in favour of the Plaintiffs-Appellants. Since the suit was filed for declaration of right, title and interest and also for eviction, flow of title was required to be proved. Due to inadvertence, the Appellants could not obtain the original CMP No. 1153 OF 2016 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Oct-2023 19:25:48 // 3 // documents from the Court of learned S.D.J.M., Phulbani to be produced before learned trial Court. Those documents clearly show the flow of title in favour of Plaintiffs-Appellants and are necessary for just adjudication of the appeal and no effective judgment can be passed without those documents. 6. Learned appellate Court holding that in absence of any diligence being shown by the Plaintiffs for not producing the original documents, certified copies of which were produced before learned trial Court and that an effective judgment can be pronounced without the documents sought to be produced as additional evidence, rejected the petition. Learned appellate Court failed to appreciate that the certified copies could have been relied upon as secondary evidence. However, in order to get over the anomaly of admissibility of certified copies of those documents, an application under Order XLI Rule 27 CPC was filed. Learned appellate Court without appreciating the matter in the aforesaid perspective, rejected the same. Hence, he prays for setting aside the impugned order under Annexure-5 and to direct learned appellate Court to accept the documents as additional evidence. 7. While concluding his argument, Mr. Rao, learned Senior Advocate submitted that the petition under Order XLI Rule 27 CPC should have been considered at the time of hearing of the appeal. Thus, consideration of application at any stage before hearing of the appeal is an abuse of process of Court. Hence, he submits that the impugned order under Annexure-5 is not sustainable in the eyes of law. CMP No. 1153 OF 2016 Page 3 of 7 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Oct-2023 19:25:48 // 4 // 8. Mr. Udgata, learned counsel for the Opposite Party No.1 submits that none of the documents sought to be adduced as additional evidence, prove the flow of title in favour of the Appellant No.1-Petitioner. The Appellants had relied upon eighteen documents during trial. In the petition under Order XLI Rule 27 CPC, the Appellants sought to introduce twenty nine documents as additional evidence. There is no explanation in the petition, as to whether, the Appellants could not have produced those documents during pendency of the suit in spite of exercise of due diligence. It is further submitted that the documents were within their knowledge and certified copies of certain documents were also relied upon. Learned trial Court holding that foundation for adducing secondary evidence was not made out, held that the documents are not admissible in evidence. Even if, those documents are taken into consideration, as held by learned appellate Court, it would not improve upon the case of the Appellants. As rightly held by learned appellate Court, an effective judgment can be passed without the documents sought to be adduced as additional evidence. 9. Mr. Udgata, learned counsel for the Opposite Party No.1 relied upon the case of Sanjay Kumar Singh –v- State of Jharkhand, reported in AIR 2022 SC 1372, wherein relying upon the ratio in the case of Uttaradi Mutt –v- Raghavendra Swamy Mutt, reported in AIR 2018 SC 4796, Hon’ble the Supreme Court has held as under: “5. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, we are of the opinion that while considering the application for CMP No. 1153 OF 2016 Page 4 of 7 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Oct-2023 19:25:48 // 5 // additional evidence, the High Court has not at all adverted to the aforesaid relevant consideration, i.e., whether the additional evidence sought to be adduced would have a direct bearing on pronouncing the judgment or for any other substantial cause. As observed hereinabove, except sale deed 29.12.1987, which as such was rejected, there was no other material available on record to arrive at a fair market value of the acquired land. Therefore, in the facts and circumstances of the case, the High Court ought to have allowed the application for additional evidence. However, at the same time, even after permitting to adduce the additional evidence, the applicant has to prove the existence, authenticity and genuineness of the documents including contents thereof, in accordance with law and for the aforesaid purpose, the matter is to be remanded to the Reference Court.” No case has been made out that the additional evidence sought to be adduced would have a direct bearing on pronouncing the judgment or for any other substantial cause. He, therefore, submits that the impugned order under Annexure-5 warrants no interference. 10. Considering the submissions made by learned counsel for the parties and on perusal of the record as well as the case law cited, this Court finds that the suit for declaration of right, title and interest and also for eviction filed by the Plaintiffs- Appellants was dismissed on contest. While answering Issue No.4 learned trial Court held that the original documents of Exts.1 to 3 were very much available in the G.R. Case No. 332 of 2003, then pending in the Court of learned S.D.J.M., Phulbani. The Plaintiffs had neither made any prayer to call for those documents nor offered any explanation for non-production of original documents. CMP No. 1153 OF 2016 Page 5 of 7 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Oct-2023 19:25:48 // 6 // 11. Order XLI Rule 27(1)(aa) CPC clearly stipulates that if the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, then the prayer for acceptance of additional evidence may be considered. In the instant case, no such case has been made out by the Appellants, more particularly, by the Petitioner in this case. 12. Adverting to the documents sought to be adduced as additional evidence, those prima facie show that the documents at serial No.1 of the list appended to the petition under Order XLI Rule 27 CPC discloses that the same is the Registered Sale Deed dated 23rd November, 1974 executed by Sri Krushna Sahu in favour of Sri Malleswar Rao. Malleswar Rao was the Plaintiff No.2-Appellant No.2 (Proforma Opposite Party No.2 herein). There is no material on record to show that said Krushna Sahu had an alienable right over the suit property, when he executed the Registered Sale Deed in favour of Malleswar Rao in respect of the suit land. Again there is no document on record to show that the Appellant No.1-Petitioner had ever acquired any right over the suit property. These things, however, can be gone into in detail by learned appellate Court at the time of hearing of the appeal. It appears that the Appellants did not satisfy the requirement of Order XLI Rule 27(1) (aa) CPC for adducing additional evidence at the appellate stage. It further appears that learned trial Court passed the judgment on CMP No. 1153 OF 2016 Page 6 of 7 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Oct-2023 19:25:48 // 7 // scrutiny of the materials on record and the suit was dismissed on contest. Learned appellate Court while exercising its discretion has categorically held that the judgment can be pronounced effectively in absence of the documents sought to be adduced as additional evidence. 13. In that view of the matter, I find no infirmity in the impugned order under Annexure-5. 14. Accordingly, the CMP being devoid of any merit stands dismissed. 15. Interim order dated 31st August, 2016 passed in Misc. Case No.1174 of 2016 stands vacated. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated 6th October, 2023/Madhu CMP No. 1153 OF 2016 Page 7 of 7