IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.22438 of 2011 Gunjarwa Devi & Anr Versus The State Of Bihar & Anr ---------------------------------- 02. 19.12.2011. Heard the learned counsel, Mr. Nand Kishore Prasad Sinha on behalf of the petitioner and the learned counsel, Mr. Apurva Kumar, A.C. to S.C.10 on behalf of the respondent. This application under Article 227 of the Constitution of India has been filed by the plaintiff- petitioner for setting aside the order dated 18.11.2011 passed by Addl. District Judge, IVth Gaya in title appeal No.10 of 2010 / 36 of 2010 whereby the application filed by the petitioner under Order 41 Rule 27 of the Code of Civil Procedure has been rejected. The learned counsel for the petitioner submitted that the plaintiffs filed title suit No.113 of 2005 for declaration of title and conformation of possession on the ground that they have inherited the property from their mother. The learned Court below dismissed the suit finding that the plaintiffs have not produced any documentary evidence to prove the fact that in fact there mother had got title to the suit property. The plaintiffs filed the - 2 - appeal in the year 2010 and thereafter, obtained the certified copy of the sale deed executed in favour of the mother of the appellant and immediately filed the application before the appellate Court for permission to adduce additional evidence under Order 41 Rule 27 but the learned Court below rejected the same illegally on the ground that the appellant have not whisper a ward about their exercise of due diligence, such evidence was not within their knowledge and, therefore, the impugned order is liable to be set aside. On the other hand, the learned counsel appearing on behalf of the respondent submitted that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate stage unless the conditions provided under Order 41 Rule 27 C.P.C. is fulfilled. Admittedly, the Court below found that the petitioners have not stated any where that notwithstanding the exercise of their due diligence, the registered sale deed was not within their knowledge and, therefore, could not be produced by them at the time when suit was disposed of. A copy of the trial Court Judgment was - 3 - produced by the learned counsel for the petitioner at the time of hearing of this application. From perusal of the Judgment at paragraph 10, it appears that the learned Court below dismissed the plaintiff’s suit only on the ground that the plaintiffs should have proved the title of their mother but no documentary evidences have been produced in support of the title of their mother. From perusal of the impugned order, it appears that the learned Court below has not considered at all as to whether the documents sought to be adduced as additional evidence is necessary for the just decision of the case to enable it to pronounce Judgment or for any other substantial cause as provided under Order 41 Rule 27 (b). In A.I.R. 1963 S.C. 1526 K. Venkataramiah Vs. Seetharama Reddy and Others, the five Judges Bench of the Apex Court at paragraph 10 and 13 has held as follows : “(10) Section 107 of the Code of Civil Procedure empowers the appellate court “to take additional evidence or to require such evidence to be taken,” “subject to such conditions and limitations as may be prescribed.” Rule 27 of O. 41 of the Code of Civil Procedure prescribes the conditions and limitations in the matter. The rule first lays down that the parties to an appeal shall not be entitled to produce additional evidence, - 4 - whether oral or documentary, in the appellate court. It then proceeds to lay down two classes of cases where the appellate court may allow additional evidence to be produced. One class is where the Court appealed from has refused to admit evidence which ought to have been admitted. The other class is whether the appellate court requires such additional evidence for itself either to enable it to pronounce judgment or for any other substantial cause. The second class of the rule requires that when additional evidence is allowed to be produced by an appellate Court the Court shall record the reason for its admission. (13) It is very much to be desired that the courts of appeal should not overlook the provisions of cl. (2) of the Rule and should record their reasons for admitting additional evidence. We are not prepared, however, to accept the contention of the appellant that the omission to record the reason vitiates the admission of the evidence. Clearly, the object of the provision is to keep a clear record of what weighed with the appellate court in allowing the additional evidence to be produced- whether this was done on the ground (i) that the court appealed from had refused to admit evidence which ought to have been admitted, or (ii) it allowed it because it required it to enable it to pronounce judgment in the appeal or (iii) it allowed this for any other substantial cause. Where a further appeal lies from the decision of the appellate court such recording of the reasons is necessary and useful also to the court of further appeal for deciding whether the discretion under the rule has been judicially exercised by the court below. The omission to record the reason must therefore be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory. For, it does not seem reasonable to think that the legislature intended that even though in the circumstances of a particular case it could be definitely ascertained from the record why the appellate court allowed additional evidence and it is clear that the power was properly exercised within the limitation imposed by the first clause of the Rule all that should be set at naught merely because the provision in the second clause was not complied with. It may be mentioned that as early as 1885, when considering a similar provision in the corresponding section of the Code of 1882, viz., S. 586, the High Court of Calcutta held that this provision for recording reasons is merely directory and not imperative, Gopal Singh v. Jhakri Rai, ILR 12 Cal 37. We are aware of no case in which the correctness of this view has been doubted. It is worth noticing that when the - 5 - 1908 Code was framed and O. 41 R. 27 took the place of the old S. 568, the legislature was content to leave the provision as it was and did not think it necessary to say anything to make the requirement of recording reasons imperative. It is true that the word “shall” is used in R. 27(2), but that by itself does not make it mandatory. We are therefore of opinion that the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission.” In the said decision at paragraph 16 it has been held by the Apex Court that “Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment” but also for “any other substantial cause”. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the 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 remain obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner”. In the said decision at paragraph 17 and 18, the Apex Court has held as follows : “(17) It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. That is why in Parsotim Thakur v. Lal Mohar Thakur, 53 Ind App 254: (AIR 1931 PC - 6 - 143) the Privy Council while discussing whether additional evidence can be admitted observed: “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.” (18) As the Privy Council proceeded to point out: “It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands.” In 2008 (8) SCC 511 North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (dead) By LRs. the Apex Court at paragraph 14 and 15 has held as follows : “14. It is plain that under Clause (b) of sub-rule (1) of Rule 27 Order 41 CPC, with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it “requires” to enable it to pronounce judgment “or for any other substantial cause”. The scope of the Rule, in particular of clause (b) was examined way back in 1931 by the Privy Council in Parsotim Thakur v. Lal Mohar Thakur. While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows: (AIR p.148). “… 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 - 7 - 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‟.” 15. Again in K. Venkataramiah v. A Seetharama Reddy a Constitution Bench of this Court while reiterating the aforenoted observations in Parsotim case pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment” but also for “any other substantial cause”. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the 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. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.” In view of the above settled principle of law laid down by the Apex Court, if the documents are necessary for pronouncement the Judgment in more satisfactory manner, the case will be one for allowing additional evidence for any other substantial cause under Order 41 Rule 27 (1) (b) C.P.C. Here, as stated above, since there was no documentary evidence, the learned Court below dismissed the suit. In my opinion, therefore, the appellate Court cannot pronounce Judgment effectively and more satisfactory in absence of the documentary evidence. - 8 - In view of the above facts and circumstances of the case and the law laid down by the Apex Court, in my opinion, the learned Court below has not exercised a jurisdiction vested in it by law and thereby occasioned a failure of justice. In the result, this application is allowed. The impugned order is set aside and the petitioner are permitted to adduce additional evidence by producing the sale deed according to law. Sanjeev/- (Mungeshwar Sahoo,J.)