ABDUL NOOR Vs. KATAN BIBI

JUDGEMENT

(1.) This Revision petition has been preferred by the plaintiffs of Title Suit No. 22 of 1999 by the Court of learned Munsiff, Cachar, Silchar. The plaintiffs instituted the suit for declaration of his right, title, interest and for recovery of Khass possession by evicting the defendants from the suit land. The suit was initially decreed on 29.11.2004. Aggrieved, the defendants preferred Title Appeal No. 3 of 2005 in the Court of learned Civil Judge (Senior Division) No. 2, Silchar. During pendency of the appeal an application under Order XLI Rule 27 of the Code of Civil Procedure was filed by the defendants praying for leave to adduce additional evidence at appellate stage. The application of the defendants was ultimately allowed on 15.09.2010 by the learned First Appellate Court. The Plaintiffs challenged this order dated 15.09.2010 before this Court in Civil Revision Petition No. 476 of 2010. Revision Petition was allowed on 27.05.2010 setting aside the order dated 15.09.2010 passed by the learned First Appellate Court in Title Appeal No. 3 of 2005. This Revisional order was again challenged by the defendants before this Court by filing a review petition vide. Review Petition No. 104 of 2010. Although the Review Petition was dismissed for default but it was subsequently restored to file. The same was ultimately heard and allowed by judgment and order dated 17.06.2013 thereby holding that the learned First Appellate Court was duty bound to consider the prayer of the defendants under Order XLI Rule 27 of the Code of Civil Procedure. After the parties appeared before the learned Trial Court, the defendants filed examination-in-chief of one witness which though should have been numbered as evidence of defendants' side but it was wrongly shown as P.W. 1 and was admitted into the record. The learned First Appellate Court, inter alia, held in that order that Khatians No. 5 & 14 were in existence when suit was being tried. The contour of the order dated 01.07.2013 shows that the learned First Appellate Court invoked jurisdiction under Order XLI Rule 27(a) of the Code of Civil Procedure and thus, admitted examination-in-chief into the record. By the same order, 12.07.2013 was fixed for cross-examination of the appellant's witness. The witness does not appear to have been cross examined in the mean time inasmuch as an application was disposed of by the learned First Appellate Court on 28.03.2014 fixing cross examination of the same witness on 16.05.2014. In this order learned First Appellate Court observed that earlier order dated 01.07.2013 admitting examination-in-chief into evidence not having been challenged and there being no prayer for review, the Court was handicapped in reconsidering the legality or correctness of the said order and so the only course open to the learned Court was to fix the case for cross-examination by the appellant's witness. This has been done by the impugned order dated 28.03.2014. The petitioners herein have challenged this order dated 28.03.2014 by the present Revision Petition. Having heard the learned counsel for the parties it appears that this Court by order dated 27.05.2011 allowed the Revision Petition holding that the appellant in Title Appeal No. 3 of 2005 was entitled to be considered for leave to adduce additional evidence at the appellate stage so as to bring the Khatians No. 5 & 14 on record. Whether the said review order dated 17.06.2013 was rightly done or not, is not a point in the present Revision petition. The validity or otherwise of consequent order passed by the learned First Appellate Court on 01.07.2013 is also not challenged before this Court. Only thing which has been challenged in the Revision Petition is the order dated 28.03.2014. Having so found, it is to be seen whether there is any jurisdictional error in the impugned order.

(2.) By order dated 28.03.2014 the learned First Appellate Court has fixed the case for cross-examination of appellant's witness (wrongly termed as P.W.1). Even the order dated 28.03.2014 shows that admission of the examination-in-chief of the appellant in record is not under challenge. If that is the case then defendants are duty bound to produce the witness to the First Appellate Court for being cross examined by the plaintiffs' side.

(3.) Mr. B. Banerjee, learned Senior Counsel appearing for the appellants submits that this order should have been passed in course of hearing of the main appeal because this is an exercise under Order XLI Rule 27 of the Code of Civil Procedure. A perusal of the Order XLI Rule 27, however, shows that there are two categories of cases in regard to evidence at the appellate stage. If a piece of evidence was tendered at the trial stage and was not admitted into the evidence by the trial court then such evidence can be allowed to be brought on record by the appellate court under Clause (a) of Rule 27 of Order XLI of the Code of Civil Procedure. If, however, a piece of evidence did exist when the trial of the suit was held but the same could not be brought by the party on record in spite of due diligence in that view also the First Appellate Court shall have jurisdiction to lift the ban under Order XLI Rule 27 of the Code of Civil Procedure permitting the party to bring that piece of evidence on record at his discretion. This is what is mandated in Clause (aa) of Rule 27 of Order XLI of the Code of Civil Procedure. These two exigencies constitute one category of evidence at the appellate stage. The Second category of evidence at the appellate stage is laid down under Clause (b) of Rule 27 of Order XLVII of the Code of Civil Procedure which provides that if the Court is of opinion that a particular evidence is necessary for proper adjudication of matter in dispute, in that event a discretion of Court cannot be fettered and the Appellate Court shall be at liberty to frame such evidence and to bring it on record. However, by preponderance of judicial pronouncements, it was held by the Hon'ble Supreme Court that such a course can be taken by the First Appellate Court only after arriving at satisfaction on appreciation of the merit of the appeal as to whether such evidence is really necessary for adjudication of this lis. This can only be done if the appeal is taken up for consideration on merit Having so found, the Hon'ble Supreme Court held in catena of cases that such discretion should be exercised by the appellate Court only in course of hearing of the main appeal on merit. Mr. B. Banerjee, learned Senior Counsel appearing for the petitioner has sought to persuade this Court even in the present case that the learned First appellate Court ought to have waited till hearing of the appeal on merit and then to arrive at a decision that evidence sought to be brought on record is indispensable for adjudication of the dispute. But a perusal of the order dated 28.03.2014 indicates that learned First Appellate Court formed an opinion bringing the case within sweep of Order XLI Rule 27(a) of the Code of Civil Procedure. The Khatian No. 5 & 14 are stated to be in existence when the suit was tried. Even this Court in the Review Order dated 27.08.2011 has arrived at the same view and the order of review has not been challenged. This being the position it is to be presumed that the order passed by the learned First Appellate Court on 28.03.2014 as well as one passed on 01.07.2013 have attained finality. The order is evidence at appellate stage, therefore, is an order under Clause (a) of Order XLI Rule 27 of the Code of Civil Procedure. This being the position this is not necessary to consider the main appeal on merit which is required in a case under Order XLVII Rule 27(b) of the Code of Civil Procedure. The Revision Petition, therefore, is devoid of any merit and it is accordingly dismissed. Interim order passed earlier is vacated.