CRP 477/2010 BEFORE HON BLE MR. JUSTICE AMITAVA ROY The superintending jurisdiction of this Court under Article 227 of the Constitut ion of India has sought to be invoked to set at naught the order dated 20.9.201 0 passed by the learned Civil Judge No.2, Cachar, Silchar in Title Appeal No.30 /2002 permitting the opposite party therein to bring on record the additional ev idence under Order 41 Rule 27 of the Code of Civil Procedure ( for short, hereaf ter referred to as the ’Code’). I have heard Mr GN Sahewalla, Senior Advocate assisted by Ms S.Senapati, Advocate for the petitioners and Mr MH Rajborbhuyan, Advocate assisted by Ms R. Chetri and Mr B Islam, Advocates for the opposite party. The relevant facts in brief have to be indispensibly noticed. The predecessor-in-interest of the present petitioner Nos 1(a) to 1(e) along with the petitioner Nos. 2,3 and 4 instituted Title Suit No.195/1999 again st the predecessor-in-interest of the present opposite party Nos 3 to 9 and oth ers praying for a decree inter alia for declaration of right, title and interest in the suit land and also for khas possession thereof by evicting the defendan ts therefrom. The plaintiffs traced their title in the suit land on the basis of a purchase by a registered sale deed from one Adam Anthony. The defendants in the suit questioned the title of the plaintiffs and claimed t hemselves to be the occupancy tenants under the abovenamed person and also refer red to khatian No.3 issued by the concerned State authority under the Assam (T emporarily Settled Areas) Tenancy Act, 1971 and thus contended that they were no t evictable from the suit land. The learned trial court by judgment and order d ated 3.6.2002 decreed the suit. Being aggrieved, the opposite party preferred an appeal being Title Appeal No.30/2002 which is pending. During the pendency of the appeal, an application was filed under Order 41 Rule 29 of the Code by them on 2.1.2008 seeking the leave of the lower appellate court to brin g on record the final khatians said to have been meanwhile issued in their favou r. A written objection was filed by the present petitioners. The learned lower a ppellate court called for a report and vide its order dated 17.12.2009 rejecte d the prayer of the opposite party taking note of the fact from the report so su bmitted that the 3rd Resettlement Operation concerning the land in question had not still been completed and no final khatian as claimed by the opposite party had been issued. Admittedly, this order has remained unchallenged by the presen t opposite party. The above notwithstanding, a fresh application under Order 41 Rule 27 of the Code was filed by them on 24.5.2010 pleading inter alia that meanwhile fol lowing a search in the office of the Settlement Officer, Cachar and Hailakandi a s well as of the Assistant Settlement Officer, Katigorah, the order dated 17.8.2 005 was passed by the latter in Misc case No.2/04-05 upholding the khatians in their favour had been located. They also referred to the order dated 22.2.2006 by the Settlement Officer, Cachar and Hailakandi districts in Kacha Khatian case No.2/04-05 which, according to them had settled the issue with regard to the kh atians in their favour in absolute terms. They therefore sought the leave of th e court to bring on record amongst others the above orders and the final kha tians issued in their favour in endorsement of their claim of being the occupa ncy tenants under Adam Anthony at the relevant point of time vis a vis the suit land. A written objection by the present petitioners was filed resisting the prayer inter alia on the ground that the order dated 17.12.2009 an identical prayer of the opposite party to adduce same evidence had become final. The learned lower appellate court however, taking note of the above development acceded to the prayer to bring on record the additional documents leaving the parties however, at liberty to spar on the admissibility or otherwise thereo f at the time of final hearing of the appeal. Mr Sahewalla has emphatically urged that as the materials on record woul d disclose unambiguously that the documents now sought to be introduced were no t in existence during the pendency of the suit as well as at the time of filin g of the appeal, the same can by no means be introduced at this belated stage w hich is impermissible under Order 41 Rule 27 of the Code. Further, as the oppo site party did not challenge the order dated 17.12.2009 passed by the learned lo wer appellate court , on the doctrine of res judicata as well, the impugned orde r is liable to be interfered with. In support of this arguments, Mr Sahewalla h as placed reliance on the decisions of the Apex Court in (2001) 7 SCC 503, N.Kam alam (Dead) and Another vs. Ayyasamy and another, Respondents and in the case of Maharashtra Gen eral Kamgar, Appellant vs. Indian Gum Industries Ltd., (2008) 3 SCC 127. Mr Rajborbhuiyan in reply has drawn the attention of this Court to the written statement of the opposite party as well as the judgment of the learned trial court to emphasize that the documents now sought to be introduced are dist inctly relatable to those in existence at the time of institution and trial of the suit and that therefore, the learned lower appellate court was perfectl y justified in allowing the same to be brought on record in the interest of sub stantial justice acting under clause(b) of Order 41 Rule 27 of the Code. He has endeavoured to substantiate this plea by placing reliance on the decisions o f the Apex Court in Billa Jagan Mohan Reddy and another vs. Billa Sanjeeva Redd y and others, (1994) 4 SCC 659 , Shalimar Chemical Works Limited vs. Surendra Oi l and Dal Mills (Refineries) and Others, (2010) 8 SCC 423 and (2010) 13 SCC 487, Malayalam Plantations Limited vs. State of Kerala and Another. The materials on record and the arguments advanced have been duly taken note of. The pleaded stands of the parties in short have as well been recited he reinabove. A perusal of the judgment and order dated 3.6.2002 of the learned tri al court discloses in no uncertain terms that though the witness of the opposi te party, DW1 had in his cross examination referred to the issuance of tenancy khatian in their names in respect of the suit land, no such document was prove d by them in law. The learned trial court on the other hand noticed the recital of the document Ext.1 to conclude against the plea of the tenancy of the oppos ite party under Adam Anthony by the latter. Notice was taken as well of another document Ext.7 to hold that the tenancy khatian issued in favour of the opposite party had been cancelled by the jurisdictional Assistant Settlement Officer. I t returned a finding that the plaintiffs had in fact satisfactorily proved thei r pleaded case and thus decreed the suit in their favour. As referred to hereina bove, the appeal against this decision is presently pending before the learned lower appellate court. A plain perusal of the application dated 2.1.2008 filed by the opposite party under Order 41 Rule 27 of the Code and the order dated 17.12.2009 passed by the learned lower appellate court rejecting the same leaves no manner of do ubt that till that point of time, the final khatian Nos 10.,11,12 and 13 claimed to have been issued in their favour had not been issued as the 3rd Resettlemen t Operation of the area had not been concluded. There is no wrangle at the Bar as well that the order dated 17.12.2009 has remained unquestioned before any h igher forum. The prayer made under Order 41 Rule 27 of the Code in the face of the application dated 24.5.2010 is also in the similar lines. Thereby they sough t to bring on record the final khatian 10, 11,12 and 13 and the order dated 17 .8.2005 and 22.2.2006 as well as the certified copy of the deposition of Subodh Ranjan Das on 14.2.2007 in Title Appeal No.4/2005. That the documents which the opposite party now seek to take on record w ere not and could not have been in existence at the time of institution of the suit and the trial thereof as well as at the time of filing of the appeal is app arent on the face of the record. Order 41 Rule 29 which occupy the center stage of the debate deserve to be quoted hereinbelow - 27. Production of additional evidence in Appellate Court-(1) The part ies to an appeal shall not be entitled to produce additional evidence ,whether o ral 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 (aa) the party seeking to produce additional evidence ,establishes that notwith standing the exercise of due diligence, such evidence was not within his knowled ge or could not, after the exercise of due diligence produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to b e examined to enable it to pronounce judgment, or for any other substantial caus e, The Appellate Court may allow such evidence or document to be produced or witnes s to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Cour t, the Court shall record the reason for its admission. It is obvious from the above that the law makers contemplated thereby the even tualities where both oral or documentary evidence as referred to therein can be permitted to be adduced even at the appellate stage. In that facts and circu mstances of the case clause(a) is not applicable. As the documents were not in e xistence at the time of institution of the suit or appeal, in the opinion of thi s Court, clause (aa) as well is not drawn in the present factual setting. The Apex Court in N.Kamalam(Dead) and Another (Supra) had propounded tha t the provisions of Order 41 Rule 27 have not been engrafted in the Code so as t o patch up the weak points in the case and to fill up the omission in the court of appeal. According to their Lordships, the authority and jurisdiction as conf erred on the appellate court to let in fresh evidence is restricted to the pu rpose of pronouncement of judgment in a particular way. While reiterating the same view, their Lordships in Basayyal Mathad (Sup ra) propounded that the parties to the lis are not entitled to produce addition al evidence as of course or routine but must satisfy the conditions stated in s ub-cause(a) and (aa). That if the documents referred are found to be relevant to decide th e real issue in the controversy and the court considers introduction of thos e to be essential to decide the issue in controversy, the same ought to be taken into as evidence was sought to be advanced on behalf of the opposite party by relying on the decision of the Apex Court in Billa Jagan Mohan Reddy and anot her (Supra). In the facts of Shalimar Chemical Works Limited(Supra), their Lordships disapproved the decision of the learned court below in rejecting the documents in exercise the powers under Order 421 Rule 29 of the Code. In Malayalalam Plantations Limited(Supra), their Lordships reiterated t hat adduction of additional evidence should be allowed in the interest of justic e. On a perusal of the judgments relied upon by the opposite party, it is a pparent that in all facts situation involved therein, the documents sought to be brought on record had existed at all relevant points of time and that for the reasons recorded by the learned courts below, the prayer for producing the same as additional documentary evidence had been declined. On a scrutiny of the framework of Order 41 Rule 27 of the Code and the e ventual purpose of accepting the additional evidence, in the opinion of this Co urt , it does not contemplate the same(evidence oral or documentary) which d id not exist at the institution of the suit and trial thereof.. This appears to be only logical conclusion in the face of the requirement of production of docum ents under Order 13 Rule 1 of the Code as well. In the comprehension of this Cou rt Order 41 Rule 27 CPC would stand attracted only vis-à-vis documents which tho ugh had existed at the institution or trial of the same were not or could not be produced at that point of time. In the above view of the matter, the determinant of interest of justi ce or fair adjudication as ordained by clause (b)of Order 41 Rule 27 of the Code to permit the appellate court in the exercise of its discretionary as well res iduary powers to allow additional evidence cannot be conceived of in effacemen t of this essentiality. In the facts and circumstances of the case the authoriti es cited on behalf of the opposite party are clearly distinguishable and do no t advance their case. Judged by these considerations, in the opinion of this court, the learn ed lower appellate court erred in law in invoking its power under Order 41 Rule 27 of the Code in the facts and circumstances of the present case. The petition is allowed and the impugned order dated 20.9.2010 passed by the learned Civil Judge No.2, Cachar, Silchar in Title Appeal No.30/2002 is se t aside. The learned lower appellate court would now proceed to hear and dispose of the appeal on the basis of the materials on record available at the time of the pronouncement of the judgment and order by the learned trial court. It is h owever, made clear that in disposing of the appeal, the learned lower appellate court would not be swayed or influenced by any of the observations made in the present order. No costs.