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Calcutta Stock Exchange Association Ltd. Vs. Chanchal Singh Kothari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberAppeal No. 215 of 1966
Judge
Reported inAIR1973Cal317
ActsCode of Civil Procedure (CPC) - Order 47, Rule 27(1)
AppellantCalcutta Stock Exchange Association Ltd.
RespondentChanchal Singh Kothari
Appellant AdvocateS. Tibrewal and ;M.L. Tambe, Advs.
Respondent AdvocateA.C. Bhabra, ;D. Gupta, ;P.L. Khaitan and ;R. Ghose, Advs.
DispositionAppeal dismissed
Cases Referred(Sunder Lal and Son v. Bharat Handicrafts Pvt. Ltd.
Excerpt:
- .....liberty to tender the minutes dated december 4, 1958, of a meeting of the association by way of additional evidence. it is an application under order 41, rule 27 of the civil procedure code. counsel for the petitioner submitted that he was pressing the application under clause (b) only of order 41, rule 27 (1); in other words he contended that this document should be allowed to be tendered as additional evidence on the ground that the appellate court required the document to be produced to enable the court to pronounce judgment. it seems to us that this application is altogether misconceived. the document in question has been annexed to the petition; it is a minute of a meeting of the committee held on december 4, 1958. it appears that this document was disclosed by the respondent on.....
Judgment:

B.C. Mitra, J.

1. This is an application for an order giving the petitioner liberty to tender the minutes dated December 4, 1958, of a meeting of the Association by way of additional evidence. It is an application under Order 41, Rule 27 of the Civil Procedure Code. Counsel for the petitioner submitted that he was pressing the application under Clause (b) only of Order 41, Rule 27 (1); in other words he contended that this document should be allowed to be tendered as additional evidence on the ground that the appellate Court required the document to be produced to enable the Court to pronounce judgment. It seems to us that this application is altogether misconceived. The document in question has been annexed to the petition; it is a minute of a meeting of the committee held on December 4, 1958. It appears that this document was disclosed by the respondent on November 16, 1964. Thereafter the petitioner made an application for amendment of the plaint which was allowed. The second application for amendment of the plaint challenging the factum of a proper resolution of the committee claimed to have been passed on December 4, 1958 was, however, dismissed by the trial Court. It is quite clear to us that the petitioner's counsel omitted to tender the document in question as evidence although it was a document disclosed by the respondent. Counsel for the petitioner said that the document could not be tendered in evidence as the respondent had closed its case. In our opinion, that did not debar the petitioner from tendering a document disclosed by the respondent, even though the respondent closed its case before the trial Court. Secondly, the petitioner could have confronted the respondent's witness when he was being cross-examined, quite apart from the fact that the petitioner could have tendered it as a document disclosed by the respondent It was also contended that it was a mistake or omission on the part of the learned counsel appearing for the petitioner before the trial Court, and, therefore, this Court should at this stage allow the document to be tendered as an additional evidence. We are unable to accept this proposition. Failure or omission on the part of a party to tender a document does not entitle the Court to allow such document to be tendered as additional evidence under the provisions of Order 41, Rule 27. Sub-rule (1) Clause (b). In order to come within the scope of Clause (b) it is for the Court to require a document to be tendered to enable the Court to pronounce judgment. We are not satisfied on the materials before us that this document will be required by this Court in order to enable its to pronounce judgment in the matter.

2. In support of this contention Mr. Tibrewal, counsel for the petitioner relied on a decision of this Court reported in : AIR1957Cal709 (Babulal Chowkhani v. Western India Theatres Ltd.), This case was relied on for the proposition that the company on the Board of Directors speak through its resolutions and that if the enquiry was as to what was the decision taken by the Board of Directors, the Court would look more and depend more on the actual terms of the resolution than on the terms and the language in which such decision was conveyed by letter or correspondence. We do not see how this case is of any assistance to the petitioner because the question is not what the resolution was, but whether the resolution as contained in the minutes now sought to be tendered as additional evidence, should be allowed to go in as such under the provisions of Order 41, Rule 27, Sub-rule (1) Clause (b).

3. Mr. Bhabra, appearing for the respondent, on the other hand contended that it is not the petitioner's case that there was omission or misapprehension on the part of the petitioner's adviser before the trial Court. He drew our attention to paragraph 11 of the petition, in which it is alleged that the respondent played a trick upon the Hon'ble Court by suddenly closing its case without calling any one to prove amongst other documents, the minutes of the meeting held on December 4, 1958. Mr. Bhabra also argued that failure or omission on the part of a party to adduce evidence ought not to be made a ground for allowing such documents to be tendered as additional evidence under Order 41, Rule 27 (1) (b) of the Code of Civil Procedure, unless such document was needed by the Court to pronounce judgment In support of this contention reliance was placed by Mr. Bhabra firstly on a decision of the Bombay High Court reported in : AIR1959Bom300 (Ramprasad Haripal v. Manohax Vithoba) for the proposition that where a document was not tendered in the trial Court because the party expected the other side's witness to go into the witness box and then to confront the witness with those documents during his cross-examination, a document so intended to be tendered through cross-examination ought not to be allowed to be tendered as additional evidence. It was also held that the party who emitted to tender the document disclosed by the other side took a risk by not tendering the document in evidence at the proper stage and should take the consequences of such omission. Our attention was also drawn by Mr. Bhabra to a decision of the Supreme Court reported in : [1968]1SCR608 (Sunder Lal and Son v. Bharat Handicrafts Pvt. Ltd.) in which it has been held that where the appellate Court required any document to be produced the Court might allow such document to be produced. In that case the document relied upon was admittedly in the possession of the appellants but they did not rely upon it before the High Court. It was also argued to that case that the importance of the document was not realized by those in charge of the case and it was held that this plea would not bring the case within the expression 'other substantial cause' in Order 41, Rule 27 of the Civil Procedure Code.

4. All in all, it seems to us that no grounds have been made out by the petitioner for allowing the minutes of the meeting held on December 4, 1958, to be tendered as additional evidence. For the reasons mentioned above, this application fails and is accordingly dismissed with costs.

Deb, J.

5. I agree.


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