Partly allowed

Vamneshwar Saunsthan, Rep. by Its Duly Const. Att., Gajanan Vasant Sinai Talaulikar., v. Gajanan Babuso Sattarker and 3 Ors.

Bombay HC22 Jun 2021WP/197/2020

Case brief

AI extract

What is this about?

The High Court of Bombay at Goa allowed a writ petition challenging appellate orders that granted leave for additional evidence and amendment of plaint at an intermediate stage. Directly applying Union of India vs Ibrahim Uddin, the Court set aside the orders and directed the First Appellate Court to consider these applications only at the final hearing of the appeal.

What did the court decide?

Impugned orders set aside; First Appellate Court directed to consider applications during final hearing of appeal with a three-month timeline for disposal.

Vamneshwar Saunsthan, Rep. by Its Duly Const… — Civil Procedure and Limitation | Bombay HC (2021)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 197 OF 2020

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Vamneshwar Saunsthan,
A religious institution governed by
Regulamento das Mazanias
(Devasthan Regulations) having its office
at Dhavli, Ponda, Goa
represented by its duly constituted attorney
Gajanan Vasant Sinai Talaulikar
61 years of age,
tax consultant, residing at house no. 224,
near Mahalaxmi tample, Talaulim,
Ponda, Goa.…...Petitioner

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V e r s u s

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1. Gajanan Babuso Sattarker,
major of age,

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2.Sham Rama Sattarker,
major of age,

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3. Sharada Gajanan Sattarker, major of age, wife of Respondent no.1, and

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4.Shanti Sham Sattarker,
major of age, wife of Respondent no.2,
All residing at Dhavli, Ponda, Goa.…...Respondents

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Mr. Sudin Usgaonkar, Senior Advocate with Mr. Ashwin Ramani, Advocate
for the Petitioner.

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Mr. A. D. Bhobe, Advocate for the Respondents.

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Coram :-M. S. SONAK, J.

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Date : 22nd June, 2021

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ORAL JUDGMENT

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1. Heard Mr. Sudin Usgaonkar, learned Senior Advocate for the Petitioner and Mr. A. D. Bhobe, learned Counsel for the Respondents.

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2. Rule. Rule is made returnable forthwith at the request and with the consent of learned Counsel for the parties. Learned Counsel for the Respondents waives notice.

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3. The challenge in this Petition is to the orders dated 18.10.2019 by

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which the First Appellate Court has dismissed the Petitioner's application
under Order 41 Rule 27 of the Civil Procedure Code (CPC) for seeking
leave to produce additional evidence at the appellate stage and application
under Order 6 Rule 17 of the CPC seeking leave to amend the plaint so that
there is no allegation that the evidence which the Petitioner now seeks to
produce is not backed by the pleadings in the plaint.

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4. Mr. Usgaonkar, learned Senior Advocate, relied upon the decision of

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the Hon'ble Supreme Court in Union Of India vs Ibrahim Uddin & Anr
reported in 2012 (8) SCC 148, to submit that both the applications should

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have been taken up only at the stage of final hearing of the appeal and not
before. He submits that since this has not been done, the impugned orders
are liable to be set aside with directions to the First Appellate Court to take
up both the applications along with the final hearing of the appeal itself as
was held by the Hon'ble Apex Court in Ibrahim Uddin (supra).

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5. Mr. A. D. Bhobe, the learned Counsel for the Respondents, submits that the applications were in fact taken up at the stage of final hearing itself. He submits that in any case, the principle in Ibrahim Uddin (supra) does not apply to consideration of applications seeking leave to amend the plaint at the appellate stage. He submits that this is an attempt on the part of the Petitioner to simply delay the matter and in the absence of any jurisdictional error, this Petition is required to be dismissed.

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6. The roznama has been produced on record by the Petitioners. The

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roznama does not indicate that the two applications were taken up at the
stage of the final hearing of the appeal. True, Ibrahim Uddin (supra) is
concerned, inter alia, that the stage at which an application under Order 41
Rule 27 of CPC is to be considered and does not delay with the issue of an
application seeking leave to amend the plaint at the appellate stage.
However, since it is submitted that both the applications seeking leave to

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amend the plaint and the application seeking leave to produce additional
evidence at the first appellate stage are interconnected and have direct nexus
with one another, according to me, it is only appropriate that in the peculiar
facts of this case, both the applications are taken up for consideration along
with the final hearing of the appeal itself.

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7. In Ibrahim Uddin (supra), this is what the Hon'ble Supreme Court has observed at paragraphs 49, 50, 51, 52 and 53 :

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“49. An application under Order XLI Rule 27 CPC is to be
considered at the time of hearing of appeal on merits so as to
find whether the documents and/or the evidence sought to be

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adduced have any relevance/bearing on the issues involved.
The admissibility of additional evidence does not depend upon
the relevancy to the issue on hand, or on the fact, whether the
applicant had an opportunity for adducing such evidence at an
earlier stage or not, but it depends upon whether or not the
Appellate Court requires the evidence sought to be adduced to
enable it to pronounce judgment or for any other substantial
cause. The true test, therefore is, whether the Appellate Court
is able to pronounce judgment on the materials before it
without taking into consideration the additional evidence
sought to be adduced. Such occasion would arise only if on
examining the evidence as it stands the court comes to the
conclusion that some inherent lacuna or defect becomes
apparent to the Court. (Vide Arjan Singh v. Kartar Singh and
Natha singh v. financial Commr. Taxation).

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50. In Parsotim Thakur v. Lal Mohar Thakur, it was held :
(LW pp. 86-87)

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“The provisions of S.107 as elucidated by O.41, R.27 are
clearly not intended to allow a 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. Under
R.27, Cl.(1) (b) it is only where the appellate Court “requires”

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it (i.e. finds it needful). …… 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”, it may well be that the defect may
be pointed out by a party, or that a party may move the Court
to apply the defect, but the requirement must be the
requirement of the court upon its appreciation of evidence as it
stands. Wherever the Court adopts this procedure it is bound
by R. 27(2) to record its reasons for so doing, and under R.29
must specify the points to which the evidence is to be confined
and record on its proceedings the points so specified. The
power so conferred upon the Court by the Code ought to be
very sparingly exercised and one requirement at least of any
new evidence to be adduced should be that it should have a
direct and important bearing on a main issue in the case…”
(Emphasis added)

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51. In Arjan Singh v. Kartar Singh this Court held :

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“7………If the additional evidence was allowed to
be adduced contrary to the principles governing the
reception of such evidence, it would be a case of
improper exercise of discretion, and the additional
evidence so brought on the record will have to be

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ignored and the case decided as if it was non-
existent…….

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8.........The order allowing the appellant to call the
additional evidence is dated 17.8.1942. The appeal
was heard on 24.4.1942. There was thus no
examination of the evidence on the record and a
decision reached that the evidence as it stood
disclosed a lacuna which the court required to be
filled up for pronouncing the judgment” (Emphasis
added)

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52.Thus, from the above, it is crystal clear that application
for taking additional evidence on record at an appellate stage,
even if filed during the pendency of the appeal, is to be heard
at the time of final hearing of the appeal at a stage when after
appreciating the evidence on record, the court reaches the
conclusion that additional evidence was required to be taken
on record in order to pronounce the judgment or for any
other substantial cause. In case, application for taking
additional evidence on record has been considered and
allowed prior to the hearing of the appeal, the order being a
product of total and complete non-application of mind, as to
whether such evidence is required to be taken on record to
pronounce the judgment or not, remains
inconsequential/inexecutable and is liable to be ignored.

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53. In the instant case, the application under Order XLI Rule
27 CPC was filed on 6.4.1998 and it was allowed on
28.4.1999 though the first appeal was heard and disposed of
on 15.10.1999. In view of law referred to hereinabove, the
order dated 28.4.1999 is just to be ignored.”

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8. Applying the aforesaid principles to the peculiar facts of the present case, the impugned orders are hereby set aside not by adverting to their merits but merely because of the stage at which both the applications came to be considered by the First Appellate Court.

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9. Now, the First Appellate Court is directed to consider the applications

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under Order 6 Rule 17 and Order 41 Rule 27 of the CPC at the time of
final hearing of the appeal at the stage when after appreciating the evidence
on record, the Court reaches the conclusion that additional evidence was

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required to be taken on record in order to pronounce the judgment or for
any other substantial cause. This will be an approach consistent with which

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has been laid down by the Hon'ble Supreme Court in the case of Ibrahim

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Uddin (supra).

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10. The Rule is made absolute to the aforesaid extent. There shall be no

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order as to costs.

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11. All concerned to appear before the First Appellate Court on

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08.07.2021 and file an authenticated copy of this order so that the First
Appellate Court can proceed accordingly.

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12. The First Appellate Court to dispose of the appeal and the pending applications as expeditiously as possible and, in any case, within three months from the date the parties file authenticated copy of this order.

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13. All parties including in particular the Petitioner herein to co-operate with the First Appellate Court for the expeditious disposal of the appeal and

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the pending applications by not seeking any unnecessary adjournments in
the matter.

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14. All concerned to act on the basis of an authenticated copy of this

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order.

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M. S. SONAK, J.

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Digitally signed by ANDREZA ANDREZA PEREIRA PEREIRA Date: 2021.06.22 18:13:12 +05'30'

Vamneshwar Saunsthan, Rep. by Its Duly Const. Att., Gajanan Vasant Sinai Talaulikar., v. Gajanan Babuso Sattarker and 3 Ors.

Case brief

What is this about?

What did the court decide?

Vamneshwar Saunsthan, Rep. by Its Duly Const. Att., Gajanan Vasant Sinai Talaulikar., v. Gajanan Babuso Sattarker and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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