R.N. Misra, J.
1. This revision application at the instance of the plaintiffs in a suit is directed against the appellate order of the Additional Subordinate Judge, Cuttack, dated 14-5-1966 passed in Title AppealNo. 191 of 1965 remanding the suit to the trial Court with a direction to receive an Ekpadia by way of additional evidence under Order 41, Rule 27, Civil P. C.
2. T. S. No. 131 of 1961 was by the petitioners for declaration of their title, possession and for permanent injunction in respect of 9.12 acres of land. The plaintiffs contended that the lands were partly Nijjote and partly Anabadi and belonged to three sets of landlords who initially came from one family. It was contended that the plaintiffs and before them their forefathers were cultivating these lands under the ex-proprietors and ultimately approached them to settle the lands with the plaintiffs. In 1944 the lands were so settled, and rent was received by the ex-proprietors until there was vesting of the estate. Subsequently the plaintiffs applied for mutation and obtained mutation even after contest by the defendants. While the plaintiffs remained in possession of the property the defendants in collusion with the brother of one Sri Sarat Chandra Parija and a set of supporters of the said brother were attempting to disturb the peaceful possession of the plaintiffs. This situation gave rise to the suit.
3. The defendants took the stand that they were in possession of the property after reclaiming the lands with permission of the landlords. They contended that they had taken the leases from the brother of Sri Sarat Chandra Parija and were in possession of specific portions of the disputed property. As the defendants were settled raiyats of the village they have acquired occupancy right upon settlement They disputed the genuineness of the leases in favour of the plaintiffs.
4. The trial Court after a regular trial by his judgment dated 19-7-1965 decreed the plaintiffs' suit and found that they were in possession. Therefore, it confirmed their possession also. A decree for permanent injunction was also granted as prayed for.
5. Against this judgment an appeal was carried to the District Court which eventually came for disposal before an Additional Subordinate Judge, Cuttack. In appeal by the defendants an application for additional evidence was filed and it was prayed that the Ekpadia which had been submitted subsequent to vesting of the estate under the Orissa Estates Abolition Act and which had been called for in the lower Court and had not been obtained may be received by way of additional evidence under Order 41, Rule 27, Civil P. C. This application was resisted by the plaintiffs on several grounds, such as, the document was not genuine, its existence having been known to the parties adequate steps should have been taken in the trial Court to bring it in evidence and as such it did not come within the scopeof Order 41, Rule 27, Civil P. C., lacuna cannot be filled up by way of additional evidence in appeal and the document had no material bearing on the disposal of the litigation. It was also contended that the document being of a spurious character it should not be received by way of additional evidence. The learned Additional Subordinate Judge by the impugned order ruled out the plaintiff's objections and came to hold that the Ekpadia should be received by way of additional evidence. He was of the view that the Ekpadia went to the root of the case and as such it was necessary to set aside the impugned judgment of the trial Court and the suit should be remanded to give opportunity to the appellants to prove the document and a chance to the respondents to rebut the same. It is against this direction of the learned Subordinate Judge that this Civil Revision has been filed.
6. Mr. M. N. Das for the petitioners contends that the effect of the order of the learned Additional Subordinate Judge is to give an opportunity to the defendants to fill up the lacuna in the case. He submits that the direction is not within the four corners of Order 41, Rule 27, Civil P. C. Inasmuch as the defendants have failed to establish the circumstances which may permit receipt of additional evidence. The last contention is that the Ekpadia is only a piece of evidence and it is difficult to appreciate the stand taken by the learned Additional Subordinate Judge that it goes to the root of the case and, therefore, the entire case should be sent back to the trial Court. He seeks to place reliance on the decision of the Supreme Court in AIR 1965 SC 1008, Bombay Corporation v. Pancham.
7. The provisions of Order 41, Rule 27, Civil P. C. are very clear. For convenience the same may be extracted below:--
'(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 party seeking to adduce additional evidence satisfies the Appellate Court that such evidence notwithstanding the exercise of due diligence was not within his 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.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.'
The stand taken by Mr. Das seems to be that the direction of the learned Additional Subordinate Judge does not show that according to him the case is covered by any of the three provisions referred to above. To the facts of the present case Clause (a) has no application as this document was not produced in the Court below and yet was kept out of evidence by the trial Court. The Court has not recorded, as Mr. Das submits, that the defendants had no knowledge of the existence of the document nor is it established that notwithstanding the exercise of due diligence the document could not be produced by the defendants in the trial Court when evidence was being taken.
8. The law seems to be clear that it is not open to an Appellate Court to allow additional evidence to be received unless one or more of the aforesaid conditions are satisfied. Speaking for the Law Lords of the Judicial Committee, Sir John Beaumont in AIR 1948 PC 36, Mohd. Akbar Khan v. Motai stated thus:--
'The power of an Appellate Court to admit further evidence under Order 41, Rule 27 (1) (b) is confined to cases in which the 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. As pointed out by this Board in 58 Ind App 254 = (AIR 1931 PC 143), the power only arises where the Court requires further evidence for one of the two causes specified.'
The learned Additional Subordinate Judge in the impugned order seems not to have been alive to the requirements of law and has not clearly indicated as to which of the clauses of Order 41, Rule 27, according to him, has been satisfied in this case, so as to authorise him to exercise the jurisdiction. In the Supreme Court case referred to above Mr. Justice Mudholkar speaking for their Lordships of the Supreme Court stated.
'No doubt, under Rule 27 the High Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce iudg-ment. This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case, It does not entitle the Appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the Appellate Court is em-powered to admit additional evidence. The High Court does not say that there is any such lacuna in this case.'
The learned Additional Subordinate Judge does not say, as required in the decision of the Supreme Court, that there is any lacuna in this case which creates difficulty for the lower appellate Court to pronounce judgment in the appeal Therefore, I am satisfied that the facts of this case do not attract application of Order 41, Rule 27 (1) (c), Civil P. C. (as amended in this Court). Mr. Patnaik for the opposite parties, however, contended that steps had been taken in the Court below to call for this document, but it could not be obtained within the period when trial was continuing and therefore, the case can be brought within the amended Clause (b) of Order 41, Rule 27(1). The order-sheet of the trial Court was placed before me to justify such a stand.
9. Taking an over-all picture of the matter, as once discretion has been exercised by the lower appellate Court I do not propose to vacate the order for receipt of additional evidence. Because it is quite possible that the said aspect of the matter may have weighed with the lower appellate Court though it has not clearly indicated as to when the application was made and under what circumstances it could not be received in spite of best of attempts of the defendants. The following passage, however, appears in the appellate order;
'When the original document is missing the certified copy becomes admissible, and moreover, the certified copy could be obtained only after the learned Munsif delivered his judgment .................. Its non-production in the lower Court in spite of the best efforts of the appellants' has also been proved.'
On the aforesaid observation of the lower appellate Court it is quite possible that there may be some force in Mr. Patnaik's statement that steps had been taken to call for the document and it could not be brought within the period when the trial was in progress. Therefore, I maintain the order of the learned Additional Subordinate Judge that the document would be received by way of additional evidence.
10. This, however, does not dispose of the case. I do not understand what is the basis for the learned Additional Subordinate Judge to say that the Ekpadia goes to the root of the matter. It would after all be a piece of evidence in case it is proved and as any other piece of evidence it will be taken into account in assessing its place in the fabrics of the entire case. The document, other evidence in support of the document and the evidence in rebuttal would all taken together constitute one aspect of the case and cannot be said that it is so basic and fundamental to the case that since such a document was to be received by way of additional evidenceit was paramount that the decree of the lower Court should be vacated and the case should be remanded to the trial Court.
Normally' the additional evidence is possible to be received even in the appellate Court. Courts, however, have taken the view that it is open to the appellate Court to direct the original Court to take the evidence and other evidence in rebuttal The lower appellate Court had, therefore, no business in this case to vacate the judgment of the trial Court and remit the entire case. That direction of the learned Additional Subordinate Judge must be vacated. The appeal must be maintained on his file and a chance would be given to the defendants to prove the Ekpadia as additional evidence and to the plaintiffs to lead evidence in rebuttal, and the trial Court should be called upon to return the records with the additional evidence within a time to be fixed, whereafter the appeal must be disposed of taking into account the evidence already on record and the additional evidence now to be received.
I would, therefore, substitute the direction of the lower appellate Court by giving a fresh direction to the following effect Title Appeal No. 191 of 1965 would be maintained on the file of the learned Additional Subordinate Judge. The records should be returned for receiving the Ekpadia by way of additional evidence and evidence of rebuttal to be led by the plaintiffs. The trial Court would receive the additional evidence and return the records of the case to the lower appellate Court within three months from the date of receipt of the records by it, whereafter the appeal would be disposed of by the lower appellate Court within a further period of two months. The Title Appeal is a very old one and would be 5 years old by the time it can get disposed of. The direction in relation to the time element must, therefore, be strictly followed. The contention of Mr. Das that the document is a forged one and should not be relied upon in evidence is a matter left to be decided by the lower appellate Court after the document is received by way of additional evidence.
Jn the circumstances, I modify the directions and this Civil Revision is disposed of accordingly. Parties will bear their own costs of this revision. But the direction given by the lower appellate Court that costs of that appeal would abide the result in the lower Court can no more stand. Since the defendant's application for additional evidence was being allowed at the appellate stage and the case was being remitted back for receiving additional evidence and thereby the plaintiff's were being called to discharge additional responsibilities in respect of the litigation--
It is proper that the order for receiving additional evidence should be allowed on terms of payment of costs. The plaintiffs should be entitled to receive a consolidated cost of Rs. 100 to be paid by the defendants within a month hence in the lower appellate Court. If the amount is neither paid into Court nor certified to have been paid to the counsel for the plaintiffs within the said period, the order for admitting additional evidence would not operate and the appeal would be disposed of as it is by the lower appellate Court. If the amount is paid, the records should be transmitted to the learned Munsif for recording additional evidence keeping in view the direction given above.