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Deputy Registrar, Co-operative Societies, U.P., Lucknow Vs. Chaudhari Sarfaraz-un-zaman and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 94 of 1971
Judge
Reported inAIR1972All515
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 27(1)
AppellantDeputy Registrar, Co-operative Societies, U.P., Lucknow
RespondentChaudhari Sarfaraz-un-zaman and anr.
Appellant AdvocateK.S. Verma, Chief Standing Counsel
Respondent AdvocateM.M. Lal, Adv.
DispositionPetition dismissed
Excerpt:
civil - additional evidence - order 41 rule 27 (1) (c) of code of civil procedure, 1908 - additional evidence can be admitted only on examination of evidence by appellate court - civil judge permitted the documents to be produced - for the end of justice - enabled opposite party to rebute the new case sought to be advanced by petitioner - held, admission of additional evidence can be made for substantial cause and there was no error of jurisdiction. - - the application was allowed and both the documents were permitted to be filed by the plaintiff opposite parties before the appellate court 'for enabling tbe court to pronounce its judgment more effectively and satisfactorily as both these documents appear to have a bearing on the question at issue. , (1907) 34 ind app 115 (pc). the..........which ought to have been admitted, or(b) the evidence sought to be adduced by a party to the appeal is evidence, which after exercise of due diligence, was not within bis knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made, or(c) 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 cause, the appellate court may allow such evidence or document to be produced, or witness to be examined.' the appellate court appears to have permitted tbe production of additional evidence mainly under clause (c) of rule 27 (1) quoted above to enable it to pronounce judgment and also for any other substantial cause although the civil judge.....
Judgment:
ORDER

O.P. Trivedi, J.

1. This petition in revision has been filed by the Deputy Registrar, Cooperative Societies, U. P., and is directed against the judgment and decree dated 22-1-1971 passed by the Civil Judge Mohan-lalganj, Lucknow permitting the reception of additional documents under Order 41, Rule 27, Code of Civil Procedure.

2. The material facts are these: Opposite Parties had filed a suit in the Court of the Munsif for ejectment of the petitioner from a certain premises on the basis of a permission said to have been granted under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act An ex parte decree was passed against the petitioner; whereupon he moved through an application under Order 9, Rule 13, Code of Civil Procedure for setting aside the ex parte decree taking the plea that he had made a representation to the State Government under Section 7-F of the U. P. (Temporary) Control of Rent and Eviction Act tor setting aside the permission to sue granted in favour of the opposite parties. The State Government had passed an order restraining the opposite parties from filing a suit for ejectment on a representation under Section 7-F of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter to be referred to as the Act) against another tenant of the premises Sri S. P. Mathur and on the basis of this restraint order the petitioner sought to explain his absence on the date on which the ex parte decree was passed. The application for setting aside the ex parte decree was opposed by the plaintiff-opposite parties who admitted on an objection on the counter affidavit that the State Government had passed an order restraining the opposite parties from filing a suit on their representation against another tenant Sri S. P. Mathur but maintained that the said order was passed by the State Government after filing the suit and was therefore infructuous and in any case it was pleaded that the petitioner having knowledge of filing of the suit and of the date fixed the restraint order could not be regarded as substantial cause for absence. The application for setting aside the ex parte decree having been rejected by the Munsif the Deputy Registrar filed an appeal which came up before the Civil Judge Mohaulalganj. This appeal was heard by the Civil Judge on 26-10-1970 and the judgment was reserved. The very next day (i.e., on 27-10-1970) the plaintift-opposite parties filed an application before the Civil Judge under Order 41, Rule 27, Code of Civil Procedure for permission to produce copy of the restraint order of the State Government dated 21-11-J96S and copy of another order of the State Government by which representation of the Deputy Registrar under Section 7-F of the Act was rejected. Notice of this application was issued by (he Civil Judge to the Deputy-Registrar and arguments of both tbe parties were heard on tbe application on 22-1-1971 by the successor of the Civil Judge who had earlier heard arguments in tbe appeal and reserved judgment. The application was allowed and both the documents were permitted to be filed by the plaintiff opposite parties before the appellate Court 'for enabling tbe Court to pronounce its judgment more effectively and satisfactorily as both these documents appear to have a bearing on the question at issue.' The defendant-petitioner was also given an opportunity to file documents in rebuttal within 15 days and a date for hearing of the appeal was fixed. It is patent from the impugned order of the Civil Judge that the documents were permitted to be filed by the appellate Court in exercise of power conferred on it by Clause (c) of Rule 27 (1) of Order 41, Code of Civil Procedure as amended by this Court. Rule 27 (1) of Order 41 as amended by this Court reads as follows:

'27, (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) the evidence sought to be adduced by a party to the appeal is evidence, which after exercise of due diligence, was not within bis knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made, or

(c) 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 cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.'

The Appellate Court appears to have permitted tbe production of additional evidence mainly under Clause (c) of Rule 27 (1) quoted above to enable it to pronounce judgment and also for any other substantial cause although the Civil Judge appeared to have referred in substance to the provision contained in Clause (b) also when he says that 'non-production of these documents earlier has also been explained in affidavit filed with the application which had also gone uncontro-verted.' The main argument of the learned Counsel for the petitioner is that the Appellate Court could not have exercised jurisdiction under Clause (c) of Rule 27 (1) earlier than hearing of arguments in this appeal itself. It is argued that the appeal admittedly was not being heard by the Civil Judge who permitted reception of this additional evidence although it may have been heard by his predecessor and this additional evidence having been permitted to be produced anterior to such a stage it was not a case where the appellate Court could decide as to whether these documents were required by it to enable it to pronounce judgment. This is not to my mind sound argument. As observed by their Lordships of the Supreme Court in the case of Arjan Singh v. Kartar Singh : [1951]2SCR258 referred to by the learned Counsel for the petitioner the true test for the exercise of power under Clause (b) of Rule 27 (1) of Order 41 where the Court may permit production of additional evidence to enable it to pronounce judgment is whether the Appellate Court is able to pronounce judgment on the materials placed before it without taking into consideration the additional evidence sought to be adduced. These observations were based on the Privy Council case of Parsotim v. Lal Mohar . The relevant observation of the Privy Council in Parsofim's case is contained at p. 148, and is in the following words:

'Under Clause (1) (b) it is only where the appellate Court 'requires' it, (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when on examining the evidence as it stands some, inherent lacuna or defect becomes apparent'.'

The phrase 'when on examining the evidence as it stands some inherent lacuna or defect becomes apparent' was quoted by their Lordships of the Privy Council with approval from observations made by Lord Robertson in Kessowji Issur v. G.I.P. Rly., (1907) 34 Ind App 115 (PC). The notable words in the judgment of the Privy Council are 'when on examining the evidence'. These words clearly indicate that the appellate Court has to make up its mind as to the admissibility of the additional evidence on the ground that it requires the same to enable it to pronounce judgment on examining the evidence. This examination of evidence may take place ordinarily at the time of hearing of the arguments generally in the appeal but it may not take place always and necessarily at that stage. The application under Order 41, Rule 27, Code of Civil Procedure may be moved by the parties in some cases as in the present case sometime before the date for arguments in the appeal is fixed and in connection with the hearing of such application before the appeal the appellate Court may consider not only the issue or issues on which the additional evidence is sought to be produced and in that connection examine the evidence bearing on the matter in controversy. If upon such examination of the evidence with reference to issue or issues before it the Court comes to the conclusion that the document sought to be produced at that late stage will be required to enable it to pronounce judgment on the issue or issues then the requirements of Clause (c) of Rule 27 (1) of Order 41 of the Code, as amended by this Court, to my mind, will stand satisfied and it is immaterial that such a decision has not been contemporaneous with the hearing of the appeal itself. The material point is that a decision under Clause (c) of Rule 27 (1) must be taken by the Court on an examination of the evidence as observed by the Privy Council in the case of Parsotim. This has happened in this case and therefore the argument that there was improper exercise of jurisdiction by the appellate Court under Clause (c) of Rule 27 as the appeal itself was not heard by the time the application under Order 41, Rule 27 was allowed cannot be accepted.

No doubt in the case of : [1951]2SCR258 the Supreme Court laid down the broad dictum that the test for the exercise of jurisdiction under Order 41, Rule 27 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 produced but in a subsequent decision: K. Venkataramiah v. A. Seetharama Reddy : [1964]2SCR35 their Lordships envisaged

'cases where even though the Court finds that it is able to pronounce judgment on the state of record as it is, and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner'

and held that such a case will be one for allowing additional evidence for any other substantial cause under Rule 27 (1) (b) of the Code. It is this aspect of the matter which shows that even if, speaking strictly, it may not be possible to say that the Court could not pronounce judgment in the case on the material on record and therefore lacked jurisdiction to admit additional evidence to enable it to pronounce judgment, yet it appears to have exercised jurisdiction in allowing additional evidence for other substantial cause. The Civil Judge who heard the application under Order 41, Rule 27 expressly makes a note about perusal of the record and also the papers in question. He had apparently taken note of the allegation in the application under Order 41, Rule 27 which stood uncontroverted that during arguments of the appeal the petitioner Deputy Registrar had taken the stand that the restraint order was passed by the State Government on a pending representation of the petitioner before the State Government in contradistinction with the stand taken in the application under Order 9, Rule 13, Code of Civil Procedure that the restraint order was passed on the representation against another tenant Sri S. P. Mathur. This was clearly a new case taken by the petitioner in arguments during the hearing of the appeal and the application under Order 41, Rule 27. Further a word about the argument that the Civil Judge who heard the appeal expressed the desire to have a look at the restraint order which according to the opposite parties had not been passed on any pending representation of the petitioner but on another represen-ation against Sri Mathur and had therefore no relevance for the pending suit. The Civil Judge who heard the application under Order 41, Rule 27 had apparently the occasion to consider not only the attitude of his predecessor with regard to production of the restraint order but he himself seems to have felt that if the contention of the opposite parties refuting the argument of the petitioner that the restraint order was passed on his presentation and not after rejection of his representation were true then it would be almost conclusive in exposing the unfounded nature of the petitioner's case in the appeal. For the ends of justice therefore the Civil Judge appears to have considered that the documents may be permitted to be produced to enable the opposite parties to rebut the new case sought to be advanced by the petitioner, in appeal. In this point of view it will appear that this additional evidence has been admitted for substantial cause. I am therefore of opinion that there was no error of jurisdiction in the order passed by the appellate Court under Order 41, Rule 27, Code of Civil Procedure.

3. The petition is without force and is accordingly dismissed with costs to the opposite parties. The record shall be sent down to the appellate Court concerned forthwith. The stay order passed by this Court stands vacated.


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