Remanded

Md. Muslim Ali v. on Death of Fechai Mia His Heir Abdul Jalil and Ors.

Gauhati HC18 Jun 2019RSA/173/2008

Case brief

AI extract

What is this about?

In Title Suit appeal, the Court allowed an application for adding new evidence (KP Patta issued post-decree). Holding that delay alone does not bar the application if it impacts the final decision, the judgment set aside the lower appellate decree and remitted the case for afresh scrutiny of the evidence.

What did the court decide?

The I.A. for admitting additional evidence is allowed; the impugned judgment of the First Appellate Court is set aside and the matter remitted to the First Appellate Court for fresh decision after con

Md. Muslim Ali Vs on Death of Fechai Mia His Heir Abdul… — Property and Title | Gauhati HC (2019)

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GAHC010168302008

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : RSA 173/2008

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1:MD. MUSLIM ALI

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S/O LATE DIL MAHAMMAD, R/O KARIMGANJ TOWN, WARD NO.22, P.O. , P.S. and DIST. KARIMGANJ, ASSAM.

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VERSUS

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1:ON DEATH OF FECHAI MIA HIS HEIR ABDUL JALIL and ORS. R/O WARD NOI. 22, KARIMGANJ TOWN, P.O. and DIST. KARIMGANJ, ASSAM.

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2:LECHU BIBI D/O LT. FECHAI MIA

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3:ON THE DEATH OIF JALAL UDDIN HIS LEGAL HEIRS - 3.A FATIMA BEGUM W/O LT. JALAL UDDIN. 3.B RESHMA BEGUM. 3.C MALATI BEGUM. 3.D MONOWARA BEGUM. 3.E PETTAL AHMED. 3.F BEBI BEGUM. 3.G MANA BEGUM. 3.H KALIM UDDIN. 3.I AKRAM UDDIN 3B TO 3I ARE DAUGHTERS and SONS OF LATE JALAL UDDIN ALL ARE RESIDENTS OF WARD NO.22 KARIMGANJ TOWN P.O. and DIST. KARIMGANJ ASSAM.

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4:SETTLEMENT OFFIER KARIMGANJ P.O. P.S. and DIST. KARIMGANJ

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Advocate for the Petitioner : S C KEYAL

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Advocate for the Respondent : H R A CHOUDHURY

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BEFORE

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HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI

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JUDGMENT

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Date : 18-06-2019

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This appeal has been preferred against a Judgment & Decree dated 02.08.2008 passed by the learned Civil Judge, Karimganj in Title Appeal No. 27/1995 whereby the Judgments and Decrees dated 31.05.1995 and 09.06.1995 passed by the learned Munsiff No. 1, Karimganj in Title Suit No. 77/1992 have been upheld.

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I have heard Shri S.K. Ghosh, learned for the appellant and Shri F.U. Borbhuyan, learned counsel for the respondent no. 2. It is seen that the other respondents have been struck-off in terms of the order of this Court dated 14.11.2011.

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This Court while admitting the appeal vide order dated 23.03.2009 had formulated the following substantial questions of law:

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“1. Whether the impugned judgments are vitiated for total nonconsideration of the Sulenama dated 17.12.1992 and 04.01.2008?

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Whether on the basis of exhibited documents, the learned Courts below erred in law in not decreeing the suit of the appellant/plaintiff for title and possession?”

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Though in view of certain development, there may not be a requirement to deal with the facts of the case in details or even answer the substantial questions of law, the basic facts are narrated below for the sake of clarity.

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The appellant is the plaintiff who had instituted Title Suit No. 77/1992 for declaration of right as a land holder, title over the house standing thereon and recovery of khas possession of Schedule-2 land. Amongst the various documents which were exhibited was also a kacha patta which was issued in favour of the appellant-plaintiff and the same was exhibited as Exhibit-3. The learned Court below came to a finding that a kacha patta or for that purpose the Khatian (Exhibit-2) cannot be treated to be documents confering title. Accordingly, the same was not taken into consideration and the suit was dismissed by the trial

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Court which has been upheld by the First Appellate Court.

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In the present appeal, the appellant as applicant had filed an application on 03.08.2015 invoking the provisions of Order XLI Rule 27 read with Section 151 of the CPC. In the said I.A. registered as 1106/2015, it has been averred that on 27.11.2008, the K.P. Patta pertaining to the land in question was issued and if the same is not considered, grave prejudice would have suffered by the appellant.

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The respondents have filed an objection by way of an affidavit dated 02.09.2015 against the aforesaid I.A. This Court vide order dated 17.12.2015 had observed that the application would be considered at the time of hearing of the appeal.

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Shri Ghosh, the learned Counsel for the appellant has referred to the provisions of Order XLI Rule 27 CPC which is extracted herein below:

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“ 27. Production of additional evidence in Appellate Court. -(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-

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(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

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(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

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(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

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the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

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(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”

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The learned counsel for the appellant would submit that a bare look at the document sought to be produced at this stage would reveal that the same was issued after the judgment of the First Appellate Court and was not an existing document during the pendency

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of the suit or the first appeal. Therefore, the embargo of the aforesaid provision of law of lack of due diligence would not come into application of this case. Learned counsel would further submit that since the judgment impugned in this appeal is based on documents conferring title, non-consideration of the K.P. Patta issued on 27.11.2008 would cause immense prejudice to the parties. Relying upon a decision of the Hon’ble Apex Court reported in AIR (1992) 2 Suppl. SCC 623 (Ramesh Kumar v. Kesho Ram), learned counsel has submitted that the Apex Court has held that exercise of powers under Order XLI Rule 27 is a discretionary one which would depend on the facts and circumstances of the case. It is further submitted that the present is a fit case for exercise of such discretion as the document in question would have a major bearing in the ultimate decision of the Court.

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On the other hand, Shri Borbhuyan, the learned Counsel for the respondent by referring to the objection filed in the I.A. 1106/2015 submits that admittedly the K.P. Patta was issued on 27.11.2008. However, the instant petition for adducing additional evidence at the appellate stage was filed on 03.08.2015. The learned counsel submits that without any explanation regarding the appeal, the petition should not be entertained as it reflects lack of due diligence on the part of the appellant. Shri Borbhuyan further submits that if the projected case of the appellant that the document in question would have a major bearing in the ultimate decision of the case is correct, the appellant should have been prompt and diligent enough to immediately bring the plaintiff documents to the notice of this Court by filing the application. However, the application has been filed about 7 years from the date of issue of the said document and in view of the above, no case for entertaining the I.A. is made out.

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It is in support of the submission, Shri Borbhuyan has relied upon the following decisions:

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(1) AIR 1976 SC 1053 (Natha Singh v. Financial Commissioner, Taxation, Punjab).

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(2) (2008) 8SCC 511 (North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (Dead) by LRS.

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In the case of Natha Singh (supra) the Hon’ble Apex Court while discussing the provisions of Order XLI Rule 27 CPC has held that the discretion vested by Appellate Court

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cannot be exercised in an arbitrary manner but has to be done in a judicial and reasonable manner. It is also to see whether the Appellate Court was able to pronounce the judgment on the material before it without taking into consideration the additional evidences. However in paragraph 11 of the said judgment the Hon’ble Apex Court had come to a finding that there was no other substantial reason for allowing the prayer for adducing additional evidence.

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In the case of Bhagwan Das (supra) the Apex Court while dealing with the aforesaid provision of law has held that under Clause- B of Sub- Rule (1) of Rule 27 Order XLI CPC, evidence may be admitted by an Appellate Authority if it “requires to enable without pronouncing judgment” or “any other substantial cause”. The object of the provision is not to fill-up lacuna in the case of the appellant and if the additional evidence was in existing evidence which was brought to the notice due to lack of due diligence, such evidence should not be allowed to be brought in a later stage.

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The rival contentions made by the learned counsels have been duly considered and the materials on record have been examined.

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There is no manner of doubt that the K.P. Patta issued on 27.11.2008 at the stage of pendency of this appeal will have a major bearing in ultimate decision of the lis between the parties. There is further no dispute that an appeal is a continuation of the suit. Though Shri Borbhuyan may be correct while submitting that filing of the present application under Order XLI Rule 27 after about 7 years from the date of issuance of the K.P. Patta demonstrates negligence, the said fact by itself would not render the application to be not maintainable. The due diligence of the appellant may be an issue for not bringing the documents to the notice of the Court at a much earlier stage, but since this Court was yet to pronounce the judgment, the delay would not make any material difference in the ultimate decision of this Court.

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In the case cited by Shri Ghosh, the learned counsel for the appellant, the Hon’ble Apex Court while observing the necessity of allowing an application filed under Order XLI Rule 27 had found to be fit to remand the matter to the Court below so as to give an opportunity to the parties to prove the document in accordance with law.

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Following the aforesaid principles, this Court is of the opinion that interest of justice

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would be served if this matter is remitted to the First Appellate Court wherein the present appellant along with the respondent-defendant would have a chance and opportunity on the point of proving of the document in question, namely, the K.P. Patta dated 27.11.2008 along with its contents.

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In view of the aforesaid facts and circumstances and the discussion made above, the impugned judgment passed by the First Appellate Court is set aside and the matter is remitted back to the learned Court of the Civil Judge, Karimganj who would decide the matter afresh after consideration of the document which has been brought on record in I.A. 1106/2015 which is allowed. As observed above, both the parties would have the opportunity as per law to place their respective cases at the time of proving the document in question. It is made clear that the matter has been remitted only on the point of the document in question, namely, the KP Patta dated 27.11.2008 and no other documents. The parties may appear before the learned Civil Judge, Karimganj on 19.07.2019. If the learned Civil Judge, Karimganj thinks fit, notice may also be issued in case any of the parties are not present on that particular date.

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Registry is directed to transmit back the records forthwith.

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JUDGE

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Comparing Assistant

Md. Muslim Ali v. on Death of Fechai Mia His Heir Abdul Jalil and Ors.

Case brief

What is this about?

What did the court decide?

Md. Muslim Ali v. on Death of Fechai Mia His Heir Abdul Jalil and Ors.

Case brief

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What did the court decide?

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