Dismissed

Ananda Gogoi v. Rebot Kumar Borgohain

Gauhati HC8 Jan 2020CRP(I/O)/10/2020

Case brief

AI extract

What is this about?

A Single Judge of the Gauhati High Court dismissed an application under Article 227 challenging the rejection of a petition for additional evidence under Order XLI Rule 27 CPC, holding the applicant joined a common appeal and could not now contend against a decree he helped secure.

What did the court decide?

No relief. The application filed under Article 227 of the Constitution of India was dismissed.

Ananda Gogoi Vs Rebot Kumar Borgohain — Civil Procedure and Limitation | Gauhati HC (2020)

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Page No.# 1/4

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GAHC010314112019

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

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Case No. : CRP(I/O) 10/2020

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1:ANANDA GOGOI

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S/O- LT. HIRIN GOGOI, R/O- MILAN TIRTHA PATH, CHIRING CHAPORI, P.O. AND DIST.- DIBRUGARH, ASSAM.

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VERSUS

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1:REBOT KUMAR BORGOHAIN

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S/O- LT. JAI NATH BORGOHAIN, R/O- LEPETKATTA TEA ESTATE, P.O. LEPETKATA, P.S. BARBARUAH, DIST.- DIBRUGARH, ASSAM.

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Advocate for the Petitioner : MR. R PHUKAN

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Advocate for the Respondent :

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BEFORE

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HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 08-01-2020

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Heard Mr. R. Phukan, learned counsel for the petitioner.

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By this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 16.11.2019 passed by the learned Civil Judge, Dibrugarh in T.A. 11/2018, thereby rejecting an application under Order XLI Rule 27 filed by the petitioner (defendant No.2 in the suit) to adduce additional evidence at the appellate stage.

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Page No.# 2/4

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The learned counsel for the petitioner has submitted that the petitioner was the defendant No.2 in T.S. No.30/2014 which was instituted before the Court of learned Munsiff No.1, Dibrugarh. It is also submitted that the petitioner had filed a joint written statement along with the defendant No.1 in the suit, namely, Shri Ajit Gogoi.

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It is submitted that it was projected by the defendant No.1 in the suit to the petitioner that there would be no adverse order against the interest of the petitioner because in the written statement, a plea that the suit is bad for non-joinder of the defendant No.2 was taken. Accordingly, it is submitted that by bonafide believing the assurance given by the defendant No.2 in the suit, he was made dependent on defendant No.1 for getting information of the suit. However, the petitioner was not called for giving evidence and the suit was decreed against the petitioner and the defendant No.1 in the suit without any evidence being adduced on behalf of the petitioner.

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It is submitted that only on the receipt of the certified copy of the judgment passed by the learned trial Court, the petitioner became aware of the suit to be decreed without evidence being led by him.

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Accordingly, by filing an application under Order XLI Rule 27 CPC, the petitioner had prayed before the learned first appellate Court to permit him to adduce evidence. However, the said claim was rejected by the impugned order. Accordingly, it is submitted that the petitioner be permitted to adduce additional evidence.

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It is seen from the memorandum of appeal filed as Anneuxre-2 in this application, that the appeal was jointly instituted by the defendants No.1 and 2 in the suit and the present applicant was arrayed as appellant No.2 in the said appeal which was registered and numbered as T.A. 11/2018. Therefore, when both the defendants have filed a joint appeal against the decree passed in the learned trial Court, it is not open to the petitioner to take a stand contrary to the interest of co-appellant, having not filed a separate appeal and having joined the co-defendant and joint appellants and then to accuse him of not

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Page No.# 3/4

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informing the petitioner about the necessity to file evidence in the suit and also allege that the co-appellant had prevented the petitioner from adducing evidence in the suit.

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It is the further opinion of the Court that as the petitioner had joined the defendant No.1 to file a common written statement and even a common appeal was filed by both the defendants, this is a case where if additional evidence is permitted, it would cause an advantage to the petitioner because the petitioner is now aware of the evidence led by both sides and the judgment passed by the learned trial Court and therefore, if additional evidence is allowed under Order XLI Rule 27 CPC, it would enable the petitioner to fill up all lacuna which had remained at the trial stage. Moreover, in the Memo of Appeal, a copy of which was produced by the learned counsel for the petitioner, it is seen that there is no mention that the petitioner was prevented and/ or misled by the defendant No.1, resulting in non-adducing of evidence by the petitioner in the suit.

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Moreover, there are two situations which can be envisaged. Firstly, the petitioner would appear as PW-2 on behalf of the defendant No.1. Secondly, the petitioner may appear as his own witness or as a party to the suit. In the present case in hand, the petitioner did not adduce evidence before the learned trial Court and, as such, if he appears as his own witness, it would be an additional evidence at the appellate stage, but it would be the original evidence by the party to the suit. Therefore, if primary evidence is not led before the learned trial Court, the question of allowing additional evidence at the appellate stage does not arise. However, if the petitioner appears as witness of defendant No.1 in the suit, it would make out a case of filling up the lacuna at the appellate stage. Therefore, in light of both circumstances, the order of the learned first appellate Court in rejecting the application under Order XLI Rule 27 CPC is not found to be vitiated by any jurisdictional error.

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Accordingly, this application fails and the same is dismissed.

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Let a copy of this order be communicated to the Court of learned

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Page No.# 4/4

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District Judge, Dibrugarh to be kept as a part of record in T.A. No.11/2018.

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JUDGE

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Comparing Assistant

Ananda Gogoi v. Rebot Kumar Borgohain

Case brief

What is this about?

What did the court decide?

Ananda Gogoi v. Rebot Kumar Borgohain

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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