Tikaram Sinha Vs Deputy Director

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2025:CGHC:57652

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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FA No. 522 of 2017

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1 - Tikaram Sinha S/o Shri Ramadhin Sinha, Aged About 45 Years, Proprietor Sinha Borwells, New Bus Stand Dhamtari, Tehsil Dhamtari, District Dhamtari. Chhattisgarh

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(Plaintiff) ... Appellant

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versus

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1 - Deputy Director, Agriculture Room No. 73 Collector Office, Dhamtari, District Dhamtari. Chhattisgarh

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(Defendant No.1)

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2 - State of Chhattisgarh Through Collector, Dhamtari. District : Dhamtari, Chhattisgarh

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(Defendant No.2) ... Respondents (Cause-title taken from Case Information System) For Appellant : Mr. Arvind Shrivastava, Advocate. For State : Mr. Arvind Dubey, Govt. Advocate. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board

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26-11-2025

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This first appeal filed under Section 96 of the Code of Civil Procedure, 1908 (in short ‘the CPC’) has been filed by the plaintiff/appellant against the impugned judgment and decree dated 04-07-2017 passed by the learned District Judge Dhamtari in Civil Suit No. 15-B/2016 whereby the civil suit filed by the plaintiff for recovery of Rs.4,75,000/- has been dismissed.

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The plaintiff filed the suit for recovery of Rs.4,75,000/- against the defendant/state with the pleading that the plaintiff is proprietor of Sinha Borewells and he was allotted work to dig borewell and install motor pump on the field of

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Digitally signed byMOHAMMED AADIL KHAN Date: 2025.12.08 17:33:11 +0530

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beneficiaries, through order dated 06-03-2006 issued by the defendant No.1. The names of 20 beneficiaries were given in the work order and rate fixed as Rs.40,000/- for digging the borewell upto 65 meter depth along with 25 meter cashing pipe and Rs.25,000/- per motor pump set having strength of 4 H.P. The plaintiff has completed the work of 19 beneficiaries, however due to some difficulty arose at the time of digging borewell in the field of one beneficiary No.3 jtm@pSuflag cksu>jh the borewell could not be digged in his field. The motor pump was also fitted in borewell of 6 beneficiaries, however, defendant No.1 got the motor pump fitted in 13 other beneficiaries from another person Kejuram Nishad. The plaintiff had raised bills for its payment for the work done by him, however some of the amount have been paid to the plaintiff by the defendants and total amount of Rs.4,75,000/- is outstanding towards the work done by him. Despite service of notice under Section 80 of the CPC on 29-08-2006, the defendants have paid Rs.1,20,000/- on 12-092007, Rs.1,20,000/- and on 03-11-2007 and Rs.40,000/- on 24-06-2009, however there was outstanding amount of Rs.4,75,000/- for which he filed the civil suit.

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The defendants have contested the claim of the plaintiff and filed their written statement, denied the plaint averment and pleaded that earlier the work order was issued in favour of Kejuram Nishad, but he failed to complete the work and then the work order has been issued in favouur of the plaintiff for digging the borewell and fitting of the motor pump in the field of 20 beneficiaries. It is also pleaded that the burden is upon the plaintiff to prove its case as to what is the outstanding amount with respect to the work done by him.

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On the basis of the pleadings made by the parties, the learned trial Court framed the following issues:-

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“01- D;k oknh] fgrxzkgh dz- 1]2]4 ls 11]13] 15 ,oa 20 dqy 13 fgrxzkfg;ksa dk izfrfgrxzkgh iEi fQfVax 25]000@&#- bl rjg dqy 3]25]000@& #- izfroknh dz-01 ls izkIr djus dk vf/kdkjh gS \

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02- D;k oknh] fgrxzkgh dz- 10]11]13]15]20 dk uydwi [kuu dk cdk;k jkf’k dqy 44]522@&#- ,oa fgrxzkgh dz-07 ds uydwi [kuu ,oa fQfVax dh laiw.kZ jkf’k 65]000@& #- izfroknh dz-01 ls izkIr djus dk vf/kdkjh gS \

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03- D;k izfroknh dz-01 }kjk dqy jkf’k 4]29]522@& #- esa ls dqy 2]80]000@& #i;s dk Hkqxrku oknh

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dks fd;k tk pqdk gS \

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04- D;k izfroknh us 'ks"k jde 1]49]522@& #i;s ,oa 3]25]000@& #i;s dqy 4]74]522@& #i;s oknh dks Hkqxrku ugha fd;k gS \

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05- D;k oknh] izfroknh dz-01 ls e; uksfVl [kpZ lfgr dqy 4]75]000@& #- e; C;kt ds izkIr djus dk vf/kdkjh gS \

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06- lgk;rk ,oa okn O;; \”

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The plaintiff himself has examined as PW-1 and relied upon the documents Ex.-P/1 to P/68 which are the documents related to work order and official correspondence.

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The defendants/State have not led any evidence and has not relied upon any document.

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Learned trial Court after perusal of the evidence available on record and hearing the parties has come into conclusion that the plaintiff could not prove his case that amount of Rs.4,75,000/- is outstanding towards the work order and the work done by him and held that he is not entitled for any decree for recovery of the said amount and the suit of the plaintiff was dismissed vide the judgment and decree dated 04-07-2017 which is under challenge in the present first appeal.

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In the present first appeal, the plaintiff has filed an application under Order 41 Rule 27 of the CPC on 19-04-2024 along with documents for taking additional evidence on record. The documents which is sought to be taken as additional evidence are the certificates issued to the beneficiaries which were verified by the authorities of the defendants.

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Learned counsel appearing for the appellant would submit that the learned trial Court has erroneously held that the plaintiff is not entitled for the claimed amount and has not appreciated the evidence available on record in its right perspective. The learned trial Court should have considered that the work order issued in favour of the plaintiff has not been denied. The work done by him has also not been denied by the defendants. The defendants have paid various amounts during the existence of work order as per work done by him. He would further submit that even if service of notice under Section 80 of the CPC total 2,80,000/-

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have been paid to the plaintiff in three installments which shows that the defendants have not denied the work done by the plaintiff, however, only for the reason that the authorities could not verify the bills amount it could not be paid. He would further submit that all the records are with the defendants and they could very well verify from their own records as to what is the actual work done and what is the payment made by the defendants. The authorities have physically verified the field and spot and prepared the measurement book also, from which they could ascertain about the work done by the plaintiff. Yet, the payment has been withheld by them. He would also submit that the plaintiff has filed the documents as additional evidence which are certificates with respect to the work done by the plaintiff in the field of beneficiaries and the said documents were very well available in the office of the defendants. These bills are verified by the authorities, yet its payment has been withheld and since the learned trial Court is of the view that the plaintiff could not prove the work done and verification of the bills raised by the plaintiff, he could not prove his case for recovery of the said amount for which he filed the said documents as additional evidence. Due to inadvertence and non-availability of the documents with the plaintiff he could not file these documents before the learned trial Court and after obtaining the said documents under the Right To Information Act from the department, the plaintiff has filed the said documents which are suffice to prove that these documents are available with the defendants department which are very relevant for just decision of the case and therefore, the said documents may be taken on record as additional evidence and pass a decree in favour of the plaintiff for recovery of the amount as claimed by him.

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On the other hand, learned counsel appearing for the State vehemently opposes the submissions made by learned counsel for the appellant and submitted that whatever bills raised by the plaintiff during existence of the work order and after verification of the work done by the plaintiff the defendants have paid the amount. The plaintiff has claimed the excess amount for the work which he has not actually done. Had there been more work done by the plaintiff, he would have filed sufficient

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documentary evidence before the learned trial Court to prove his claim and should have accounted that only a part payment has been made by the defendants. After meticulously examination of the documents and the evidence led by the plaintiff the learned trial Court has correctly appreciated the evidence and pass the impugned judgment which does not suffer from any perversity. He would further submit that despite having in possession of the documents with the plaintiff he has not chosen to file those documents before the learned trial Court and it has been filed before this Court by way of additional evidence which cannot be taken into consideration as the same has been filed much later. Therefore, the appeal filed by the plaintiff has no substance and the same is liable to be dismissed.

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I have heard learned counsel for the parties and perused the record of the trial Court with utmost circumspection. 12. The point of determination in the present appeal would be whether the plaintiff has sufficiently proved his case by producing documents of work done by him under the work order and outstanding amount is remaining for that work and the said work was verified by the defendants or not.

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The plaintiff has relied upon the work order as well as the certificates issued to the beneficiaries which are the documents Ex.-P/1 to P/68 which are the documents with respect to the work done and official correspondence. In crossexamination though the plaintiff could not file the work order issued to him on 06-032006, however in view of the admitted fact that the work order was issued in favour of the plaintiff it can be safely held that running payment was made to the plaintiff and final payment was to be made after physical verification of the work done by the plaintiff. The plaintiff has also admitted that the final payment is to be made only after fulfilling the conditions in the work order. The plaintiff has also admitted that he has submitted the bills without yield test and he also admitted that he has not completed the work within the stipulated time. The learned trial Court has considered in its judgment that since the plaintiff himself could not produce the work order and its condition, it appears that he is claiming the the outstanding dues

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without physical verification of the work. The learned trial Court held that the plaintiff could not establish his case that he is entitled for Rs.3,25,000/- towards motor pump fitted in the field of 13 beneficiaries at the rate of Rs.25,000/- per beneficiary and also held proved that he is not entitled for Rs.44,522/- remaining amount for digging borewell in the field of beneficiaries No.10, 11, 13, 15, 20 and the amount Rs.65,000/- with respect to beneficiary No.7 towards digging of borewell along with its fitting charges. The sum and substance of the judgment and decree passed by the learned trial Court is that the plaintiff could not prove his case that there is outstanding amount as claimed by the plaintiff and therefore, his suit is dismissed.

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At this juncture this Court is examining the documents submitted by the plaintiff in the present appeal as additional evidence along with the application under Order 41 Rule 27 of the CPC. The stage of consideration and the manner under which it has to be considered has been dealt with by the Hon’ble Supreme Court in the matter of Union of India Vs. Ibrahim Uddin and another , (2012)8 SCC 148 and held that:-

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“ Stage of Consideration

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49. An application under Order 41 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 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

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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, AIR 1951 SC 193; and Natha Singh v. The Financial Commr., Taxation, (1976) 3 SCC 28: AIR 1976 SC 1053).

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50. In Parsotim Thakur v. Lal Mohar Thakur, AIR 1931 PC 143, it was held:

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“...The provisions of Section 107, Civil Procedure Code, as elucidated by Order 41, Rule 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.

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….Under R.27, clause (1) (b) it is only where the appellate court requires 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’.

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…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 evidence as it stands. Wherever the court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing and under Rule 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”

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(Emphasis added) (See also: Indirajit Pratab Sahi v. Amar Singh, AIR 1928 P.C. 128).

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51. In Arjan Singh v. Kartar Singh, AIR 1951 SC 193 this Court held : (AIR pp. 195-96, paras 7-8)

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

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…..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 its judgment.” (emphasis added)

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52. Thus, from the above, it is crystal clear that an 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, the 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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Further in the matter of Wadi Vs. Amilal and Ors., 2015 (1) SCC 677 the Hon’ble supreme Court has held that relevancy of the additional evidence is the

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relevant factor for its consideration irrespective of the diligence and negligence of the parties and if the documents filed along with application as additional evidence the same can be taken as additional evidence by the appellate court. It has been held in para 5 that:-

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“ 5. Now it is clear that Rule 27 deals with production of additional evidence in the appellate court. The general principle incorporated in Sub-rule (1) is that the parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate court to cure a lacuna or fill up a gap in a case. The exceptions to that principle are enumerated thereunder in Clauses (a), (aa) and (b). We are concerned here with Clause (b) which is an enabling provision. It says that if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be examined. The requirement or need is that of the appellate court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, Clause (b) enables it to adopt that course. Invocation of Clause (b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the appellant to resort to it when on a consideration of material on record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case.”

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From perusal of the documents annexed with the appeal along with the

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application under Order 41 Rule 27 of the CPC filed as additional evidence it transpires that these documents are the certificates which has been verified by the authorities of the defendants and the plaintiff is claiming his outstanding dues against these documents i.e., the work done by him and these work was also verified by the defendants which has not been considered for its payment. The documents filed along with the application as the additional evidence is copies of the certificates obtained under Right to Information Act which further shows that these documents are available with the defendants department. Since the claim of the plaintiff is for settlement for the work done by him under the work order and

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verification of the work done by the plaintiff on the field of the beneficiaries and the additional evidence filed by the plaintiff may have some bearing upon the ultimate outcome of the dispute between the parties and therefore, this court is of the opinion that the additional evidence produced by the plaintiff is relevant for just decision of the case and to settle the lis finally between the parties. Therefore, the application I.A. No.3/ 2024, application under Order 41 Rule 27 of the CPC for production of additional evidence in form of document on record is allowed and the documents are taken on record as additional evidence.

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In the matter of Akhilesh Singh alias Akhileshwar Singh v. Lal Babu Singh and others , (2018) 4 SCC 659 the Hon’ble Supreme Court has held that if application under Order 41 Rule 27 of the CPC is allowed an opportunity to rebut the additional evidence has to be provided to the opposite side as provided under Order 41 Rule 28 of the CPC and held in para 15 and 16 that:-

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“ 15. A three-Judge Bench of this Court in Land Acquisition Officer, City Improvement Trust Board Vs. H. Narayanaiah & Ors., (1976) 4 SCC 9 had occasion to consider Order 41 Rule 27 in context of admission of additional evidence by Appellate Court. This Court had observed that in event the High Court admits an additional evidence, an opportunity should have been given to the other party to rebut any inference arising from its existence by leading evidence. In Para 28 of the judgment, following has been laid down: (SCC p. 20)-

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“28. The Karnataka High Court had, however, not complied with provisions of Order 41 Rule 27 of the CPC which require that an appellate court should be satisfied that the additional evidence is required to enable it either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27 Order 41 of the CPC. We are of opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence.” (emphasis supplied)

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16. To the same effect is another judgment of this Court in the case of Shalimar Chemical Works Limited Vs. Surendra Oil and Dal Mills, (2010) 8 SCC 423. In this case also, the Court had occasion to consider Order 41 Rule 27, this Court has again laid down that when documents are taken in additional evidence, an opportunity ought to have been given to other party to lead evidence in rebuttal. In the above case also, the High Court simultaneously proceeded to decide the appeal alongwith admitting additional evidence on record. In Paragraphs 16 to 18 following has been laid down:-

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“16. The learned Single Judge rightly allowed the appellant’s plea for production of the original certificates of registration of trade mark as additional evidence because that was simply in the interest of justice and there was sufficient statutory basis for that under clause (b) of Order 41 Rule 27. But then the Single Judge seriously erred in proceeding simultaneously to allow the appeal and not giving the respondent-defendants an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence.

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The Division Bench was again wrong in taking the view that in the facts of the case, the production of additional evidence was not permissible under Order 41 Rule 27. As shown above, the additional documents produced by the appellant were liable to be taken on record as provided under Order 41 Rule 27(b) in the interest of justice. But it was certainly right in holding that the way the learned Single Judge disposed of the appeal caused serious prejudice to the respondent-defendants. In the facts and circumstances of the case, therefore, the proper course for the Division Bench was to set aside the order of the learned Single Judge without disturbing it insofar as it took the originals of the certificates of registration produced by the appellant on record and to remand the matter to give opportunity to the respondentdefendants to produce evidence in rebuttal if they so desired. We, accordingly, proceed to do so.

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The judgment and order dated 25-4-2003 passed by the Division Bench is set aside and the matter is remitted to the learned Single Judge to proceed in the appeal from the stage the originals of the registration certificates were taken on record as additional evidence. The learned Single Judge may allow the

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respondent-defendants to lead any rebuttal evidence or make a limited remand as provided under Order 41 Rule 28.”

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Considering the evidence available on record as well as the additional evidence taken by this Court, further considering that in the suit for account the certificates with respect to the work done by the plaintiff are the relevant documents which are to be proved by him and that the consideration of the trial Court is only that the plaintiff could not prove his case by producing sufficient documentary evidence, this Court is of the opinion that the matter may be remitted back to the learned trial Court to provide an opportunity to prove these documents which has been filed before this Court as an additional evidence and also provide opportunity to the defendants to rebut the evidence produced by the plaintiff and to decide the case afresh.

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Accordingly, the impugned judgment and decree dated 04-07-2017 is hereby set aside. The matter is remitted back to the learned trial Court to decide the case afresh after providing opportunity of leading evidence with respect to additional evidence produced before this Court by the plaintiff and the defendants may also be granted an opportunity to rebut the same either by cross-examination or by producing their own evidence.

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The appeal is allowed . The parties are directed to make their appearance before the learned trial Court on 16-12-2025 and the learned trial Court is expected to decide the case expeditiously. Parties shall bear their own cost(s).

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Sd/-

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(Ravindra Kumar Agrawal)

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Aadil

Tikaram Sinha v. Deputy Director

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Tikaram Sinha v. Deputy Director

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