IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19508 of 2011 Krishna Lal Tebriwal Versus Sri Bishwanath Poddar ---------------------------------- 10. 13.12.2011. Heard the learned counsel for the petitioner and the learned counsel for the respondent. (2) This application under Article 227 of the Constitution of India has been filed by the defendant- respondent petitioner against the order dated 01.12.2008 passed in M.T.E appeal No.10 of 2003 by Fast Track Court Ist, Munger whereby the learned Court below allowed the application filed by the plaintiff-appellant-respondent under Order 41 Rule 27 C.P.C. (3) The learned counsel for the petitioner submitted that by cryptic order, the learned Court below without considering and hearing the petitioner allowed the application filed by the petitioner praying for allowing him to adduce additional evidence, the certified copy of the Judgment and decree passed in title suit No.120 of 2002. According to the learned counsel after Judgment and decree in eviction suit, the plaintiff appellant filed title suit No.120 of 2002 and collusively compromised the said suit with his brother and in the appeal, he sought to produce the said Judgment and decree as additional evidence which the learned Court below could not have done. (4) The learned counsel relied upon a decision of this Court reported in 2008 (1) P.L.J.R. 666 Dwarika - 2 - Raut Vs. Jaldhar Raut. (5) On the other hand, the learned counsel appearing for the plaintiff-respondent submitted that the Court must take notice of the subsequent event. In the present case, the eviction suit has been dismissed on the ground that the plaintiff is not the owner of the property. The title suit filed by the plaintiff-respondent has been decreed after passing Judgment and Decree in the eviction suit and, therefore, the Court was required to take notice of this subsequent Judgment and Decree which could not have been produced by the respondent during the pendency of the suit. Moreover, the Court below has found that it is relevant for other substantial cause of justice and therefore, using his discretionary jurisdiction allowed the plaintiff to adduce additional evidence. In such circumstances in supervisory jurisdiction, the impugned order cannot be interfered with. (6) So far the decision relied upon by the petitioner is concerned, it appears that it has been held that the provision as contained in Order 41 Rule 27 vests entire discretion in appellate Court which can require any document to be produced or any witness to be examined to enable it to pronounce Judgment. So far this decision is concerned, as stated above, it is the discretion of the appellate Court. Here, the appellate Court to have considered the fact of subsequent event and held that the Judgment which is sought to be adduced as additional - 3 - evidence is necessary for just decision of the case. (7) In A.I.R. 1963 Supreme Court 1526 K. Venkatramiah Vs. A. Seetharama Reddy& Ors., 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, 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 - 4 - 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 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.” (8) 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”. - 5 - (9) 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 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.” (10) In 2008 (8) SCC 511 North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (dead) By LRs. the Apex Court again followed the decision of the Apex Court reported in 1963 (S.C.) and at paragraph 14 and 15 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 - 6 - 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 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 vs. 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.” (11) In view of the above settled principle of law laid down by the Apex Court as well as by this Court if the document are necessary for pronouncing Judgment in more satisfactory manner, the case will be one for allowing additional evidence for any other substantial cause under - 7 - Order 41 Rule 27 (1) (B) C.P.C. Here, in the present case at our hand admittedly this Judgment and Decree came into existence during the pendency of the appeal. As has been held by the Apex Court in the case of M.M. Quasim Vs. Manohar Lal Sharma reported in 1981 (1)S.C. 1113, the Court is required to take notice of the subsequent fact. (12) Considering these facts and circumstances of the case, the learned Court below has using the discretionary jurisdiction allowed the application filed by the plaintiff-respondent. So far the relevancy or otherwise of the matter or the effect of the same is a matter that may be considered at the time of final hearing of the appeal itself. At this stage, the merit cannot be decided. Moreover, when the Court below has exercised a discretionary jurisdiction vested in it by law in supervisory jurisdiction, the order cannot be interfered with as there is no jurisdictional error. Thus, this writ application is dismissed. Sanjeev/- (Mungeshwar Sahoo,J.)