Dismissed

Biplab Pal v. Chandan Patari and Ors.

Tripura HC5 Sept 2017CMAppl(FA)/641/2014

Case brief

AI extract

What is this about?

High Court dismissed an application seeking leave to adduce additional documentary evidence at the appellate stage under Order 41, Rule 27 CPC, holding that the requisite pleadings in the original claim petition were absent.

What did the court decide?

Application for leave to adduce additional documents under Order 41, Rule 27 CPC dismissed. No costs awarded. Appeal listed for further hearing.

Biplab Pal Vs Chandan Patari and Ors. — Civil Procedure and Limitation | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA A G A R T A L A

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CM Application No.641/2014 Arising out of MAC APP. No.95/2013

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Sri Biplab Pal, S/o. Sri Niranjan Pal, Resident of Jolaibari, P.O. Jolaibari, P.S.-Baikhora, District-South Tripura.

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…. Appellant-Petitioner.

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-: Vrs. :-

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Sri Chandan Patari, S/o. Sri Subodh Chandra Patari, Resident of Rajnagar, P.O. Samarganja, P.S.-Sabroom, District-South Tripura, (Owner of the Commander Jeep No.TR-03-3192).

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Sri Gobinda Chandra Pal, S/o. Late P.C. Pal, Resident of 73/3, Ekdalia Road, Kolkata-700019.

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National Insurance Company Ltd., Represented by its Branch Manager, Udaipur Branch, Central Road, P.O. R.K. Pur, Gomati, Tripura Pin-799120. (Insurer of TR-03-3192).

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National Insurance Company Ltd., Represented by its Divisional Manager, 189/1, Bidhan Nagar Road, Kolkata-700067. (Insurer of WB-025-7527).

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….. Respondents.

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B E F O R E

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HON’BLE THE CHIEF JUSTICE MR. T. VAIPHEI

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Counsel for the applicant : Mr. R.R. Datta, Advocate. Counsel for the respondents : Mr. P. Gautam, Advocate. Date of hearing : 24-08-2017. Date of Judgment & Order : 05-09-2017

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CM APPL. NO.641/2014 IN MAC APP. NO.95/2013 Page 1 of 6

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JUDGMENT & ORDER

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In this application, the applicant, who is the appellant in the connected appeal, is seeking leave under Order 41, Rule 27, Code of Civil Procedure to adduce additional documents at the appellate stage.

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All the additional documents sought to be adduced admittedly came into existence after disposal of the claim petition. Naturally, it was not possible for the applicant to adduce those documents in the course of trial. It is the contention of Mr. R.R. Datta, the learned counsel for the applicant, that the documents are genuine documents and relate to the further treatment of the applicant and the expenditures incurred in connection therewith and adducing these documents will enable the applicant to enhance the compensation payable to the applicant in a fair and just manner. The application is, however, stoutly opposed by Mr. P. Gautam, the learned counsel for the insurer-respondent, by contending that these documents cannot be said to be not within the knowledge or could not, after exercise of due diligence be produced by him at the time when the decree appealed against was passed; Order 41, Rule 27 of the Code cannot be invoked for adducing documents which came into existence subsequent to the disposal of the claim petition. He, therefore, submits that the application has no merit and is liable to be dismissed.

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Order 41, Rule 27 enumerates the circumstances wherein an appellate court may admit additional evidence, whether oral or documentary, in appeal. They are as under:

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1. where the lower court has improperly refused to admit evidence which ought to have been admitted; or

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1. where such additional evidence was not within the knowledge of the party or could not, after exercise of due diligence, be

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CM APPL. NO.641/2014 IN MAC APP. NO.95/2013 Page 2 of 6

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produced by him at the time when the lower court passed the decree or made the order; or

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where the appellate court itself requires such evidence either (a) to enable it to pronounce judgment; or (b) for any other substantial cause.

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General rule as to production of evidence has been laid down in the opening part of sub-rule (1) of Rule 27, which says that the parties to an appeal shall not be entitled to produce additional evidence in the appellate court. Additional evidence in an appellate court, however, may be allowed to be produced if one of the conditions laid down in clauses ( a ), ( aa ) or ( b ) of Rule 27(1) is satisfied, namely,─

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(i) It must be shown that the evidence was not within his knowledge or could not be obtained by him in spite of due diligence at the stage of trial.

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(ii) The evidence must be such which would probably, but not decisively, have the effect on the result of the suit.

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(iii) The evidence is relevant and credible, though it need not incontrovertible.

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The basic rule of litigation is that the rights of the parties must be determined on the basis of the date of filing of the suit and a court of law would not take into account events happening after the institution of the suit. But it is equally well-settled that in appropriate cases and in exceptional circumstances, a court may depart from this rule and for doing full and complete justice or to shorten litigation, it may take into consideration subsequent events. For this purpose, the appellate court may allow additional evidence in the form of documentary or oral evidence. However, the question to be considered is whether additional evidence with respect to subsequent events can be allowed to be admitted without

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CM APPL. NO.641/2014 IN MAC APP. NO.95/2013 Page 3 of 6

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pleadings to that effect. This issue came up for consideration before the Apex Court in Syed & Co. and others v. State of J & K and others, 1995 Supp(4) SCC 422 and it was held therein:

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“7. In opposition to this, the learned counsel for the respondent would urge by looking at the entire pleadings of the State before the prescribed authority, it can be seen nowhere, it has been stated as to what exactly was the basis for claiming the price of timber extracted by the respondent. Without specific pleadings in that regard, evidence could not be led in since it is a settled principle of law that no amount of evidence can be looked unless there is a pleading.

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8. Therefore, without amendment of the pleadings merely trying to lead evidence is not permissible. The High Court was right in holding so. In addition on the point of limitation it has held correctly.

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9. As regards the Civil Appeal No. 543 of 1985, the contention of the appellant Syed and Company is as under:

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No doubt, under Section 52 of the Act, the prescribed authority could not have drawn up a decree. Nevertheless while setting aside this order, the High Court should have directed that it was open to the party to recover the same in accordance with law. This Court may give such directions.

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10. We have carefully considered the above submissions. We are of the view that no exception could be taken to the judgment of the High Court. No doubt a prayer was made before the prescribed authority by the State requesting that a decree might be granted for the amount of price of timber extracted by the party. But that prayer alone was not enough. The pleadings ought to have been there as to what exactly was the basis of the prayer. We are afraid that

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CM APPL. NO.641/2014 IN MAC APP. NO.95/2013 Page 4 of 6

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the entire case of the State before the prescribed authority proceeded only with reference to royalty and interest thereof, but not with reference to the price of the timber. It is true that in Malik Abdul Ahmad Shah Jalil Ahmad Akhtar² it has been held that the prescribed authority under Section 52 is empowered to determine the price of timber extracted. The State at that stage, should have amended the pleading and incorporated the basis for the claim for the price of timber. But for reasons best known the State merely took out an application under Order 41 Rule 27 to lead in evidence. Of course, evidence could have been allowed if there were pleadings to that effect. In this case, there was none. It is settled law that no evidence can be let in without the pleading. The High Court was fully justified in rejecting the application.”

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(Italics mine)

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Thus, it is obvious that without specific pleadings in that regard, evidence could not be led in since it is a settled principle of law that no amount of evidence can be looked into unless there is a pleading. In the instant case, apart from the pleadings made in this application, the foundational pleadings are not there at all as they naturally could not have been pleaded, more so, when they pertain to subsequent events. In other words, the essential facts constituting the subsequent events for which additional evidence is sought to be led in are not there even in the body of this application. In any case, even if such pleas are made in this application also, they cannot take the place of pleadings in the claim petition. In other words, the averments in this application for the purpose of allowing leave to adduce additional evidence cannot be a substitute for pleadings on the claim petition, which can be done only by way of amending the claim

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2 AIR 1982 J & K 16

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CM APPL. NO.641/2014 IN MAC APP. NO.95/2013 Page 5 of 6

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petition by taking resort to Order 6, Rule 17 Civil PC. But no attempt is made even now by the applicant to amend the claim petition to incorporate those subsequent events for which additional evidence is sought to be adduced. No evidence can be let in without any pleading. In the view that I have taken, there is no sufficient ground for granting leave to the applicant to adduce additional evidence.

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For what has been stated in the foregoing, there is no merit in this application, which is, accordingly, dismissed. No cost. Let the appeal be listed for hearing as and when the business of the Court permits.

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CHIEF JUSTICE

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CM APPL. NO.641/2014 IN MAC APP. NO.95/2013 Page 6 of 6

Biplab Pal v. Chandan Patari and Ors.

Case brief

What is this about?

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Biplab Pal v. Chandan Patari and Ors.

Case brief

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