Case: Malayalam Plantations Ltd Vs. State of Kerala &amp; Another

2. (a) The appellant is a Limited Company, which owns 5 estates in South Wayanad Taluk in Kerala. It engaged principally in the cultivation of Tea, Coffee, Cocoa, Rubber, Cardamom and Cinnamon. The Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as the Act) came into force with 10.5.1971 as the appointed day providing for vesting of all private forests in the State of Kerala. An area of 5131 hectares of land which was in the possession of the appellants Wayanad Estates in Wayanad District of Kerala State was deemed to be vested under the said Act(b) The appellant filed five applications being OA Nos. 3, 4, 5, 6 and 26 of 1975 before the Forest Tribunal, Kozhikode in respect of its 5 Wayanad Estates challenging the vesting of 2588 hectares out of the 5131 hectares which were either planted with eucalyptus by the appellant prior to the vesting or were utilized for the purpose of fuel requirement for its factory and for the use of its employees. No application was filed for the balance 2543 hectares as it formed part of the forest and finally vested with the Government(c) By a common order dated 13.3.1979, the Forest Tribunal, Kozhikode exempted the entire 2588 hectares from the vesting provisions of the Act(d) Aggrieved by the order of the Forest Tribunal, the State of Kerala filed appeals being MFA Nos.8 of 1979 before the High Court of Kerala. The appellant also filed appeals being MFA Nos.4 of 1979 claiming that exemption was granted only on the ground of estoppel on account of collection of land tax for the areas involved even after the vesting and other grounds urged was not accepted by the Tribunal(e) A Full Bench of the High Court, by its judgment dated 29.9.1980, while allowing the appeals filed by the Government thereby reversing the order passed by the Tribunal upheld the exemption for the roads and buildings(f) Challenging the order of the Full Bench, the appellant filed 5 Appeals being C.A. Nos.1 of 1981 before this Court. The State Government also preferred appeals being Civil Appeal Nos.8 of 1981. By a judgment dated 24.8.1992, this Court set aside the judgment of the Kerala High Court and remanded the O.A. Nos. 3, 4, 5, 6 and 26 of 1975 to the Forest Tribunal, Kozhikode with a direction to determine and exempt the extent of land required by the appellant for the purpose of growing trees for fuel requirement i.e. firewood purposes for its factory as well as for the employees working in the estates(g) The Tribunal, after hearing both the parties, by a common judgment dated 15.12.1994, exempted and excluded 1400 hectares of land from the vesting provisions of the Act as areas required for firewood purposes(h) When the appellant was pursuing with the authorities for implementing the order of the Tribunal, the State of Kerala filed MFA No. 537 of 1995 before the High Court, challenging the judgment dated 15.12.1994 passed by the Forest Tribunal, Kozhikode. On 2.7.1995, a Cross Appeal was filed by the appellant in the above said appeal of the Government(i) A Division Bench of the High Court of Kerala, by its impugned judgment dated 31.5.2002 exempted 730.58 hectares of eucalyptus lands from vesting but held that no forest areas could be exempted for the purpose of firewood in view of the decision of this Court in State of Kerala and Anr. v. Pullengode Rubber Produce Co. Ltd., VII (1999) SLT 256=(1999) 6 SCC 92 ,  holding that such areas should not be considered for exemption in the absence of proof that they were actually used in 1971. The Governments appeal was partially allowed and the appellants Cross Appeal claiming the whole area was dismissed. Since the Cross Appeal filed by the appellant is dismissed and appeal filed by the State was allowed by the Division Bench by the impugned judgment, both the appellant and the State Government have filed the above appeals.

Reasoning:
6. In view of the directions in the remand order, we are of the view that the High Court is not justified in relying on the earlier decision of this Court in Pullengode Rubber Produce (supra). As rightly pointed by Mr. Rao that after the order of remand with a specific direction, the same has no application to the facts of the present case. To this extent, we clarify the same7. It is not in dispute that when the appeals of the State as well as of the Malayalam Plantations were pending before the High Court, the State filed CMP No. 8793 of 2001 for accepting Annexures A1 to A21 in support of their claim stating that at the relevant time, the Company is in possession of an extent of 1199.3579 hectares of land other than plantation for ancillary purposes In the counter affidavit filed by the Plantations Company, the Company put forth their case and produced Annexure R1 in support of their stand claiming more extent of land for the use of their employees8. Mr. Gupta, learned Senior Counsel for the State by taking us through the various documents filed in the said CMP demonstrated that if we consider the contents of the same, the entire claim of the Malayalam Plantations is to be rejected. He further submitted that in view of the fact that Order 41 Rule 27 of CPC enables the parties to place documents in support of their claim as additional evidence, the High Court though adverted to did not consider the same and no order was passed in the said CMP No. 8793 of 2001. Mr. Rao pointed out that if this Court scrutinizes each and every document, the claim of the State is to be rejected in toto and the stand of the appellant is to be accepted9. We are not inclined to go into the validity or acceptability of those documents/materials filed by both sides before the High Court. Order 41 of CPC speaks about procedure in respect of disposal of appeals from original decree10. In view of the above provision, in our opinion, when an application for reception of additional evidence under Order 41 Rule 27 of CPC was filed by the parties, it was the duty of the High Court to deal with the same on merits. The above principle has been reiterated by this Court in Jatinder Singh & Anr. v. Mehar Singh & Ors., II (2010) SLT 334=I (2010) CLT 424 (SC)=AIR 2009 SC 354 and Shyam Gopal Bindal and Ors. v. Land Acquisition Officer and Anr., I (2010) SLT 183=I (2010) CLT 149 (SC)=(2010) 2 SCC 316 11. If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41 Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equallyd that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case12. Adducing additional evidence is in the interest of justice. Evidence relating to subsequent happening or events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the Appellate stage in order to enable other party to remove certain lacunae present in that case13. In the light of the separate application filed under Order 41 Rule 27 of CPC for reception of additional evidence by both sides, it is for the High Court to consider and take a decision one way or other as to the applicability of the same and decide the appeal with reference to the said conclusion. In this view of the matter, we refrain from going into the merits of the materials placed by both sides and it is for the High Court to consider and take a decision one way or other as per the mandate of the said provision.