IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: S.A.O. 8 of 2009
DATE OF DECISION : July 9,2009
Amar Singh son of Shri Balbir Singh and another .......Appellants
Shri S.K. Gupta son of late Shri R.R. Gupta and others ......Respondent
CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR PRESENT: Mr. Chetan Mittal, Sr. Advocate
with Mr. Kunal Mulwani, Advocate
for the appellants.
Mr. N.P. Jetley, Advocate
for respondents No.1 to 10.
Mr. Rajesh Lamba, Advocate
for respondent No.11.
NIRMALJIT KAUR, J.
The facts, in short, are that the plaintiff had filed a suit for permanent injunction to restrain the defendants from alienating or changing the nature of open space. The plaintiffs are the resident of Shahzadpur House Colony, near Police Lines Hospital, Ambala City which was carved out in 1959-60. This colony was approved by the District Town Planner, Ambala. The parties led their oral as well as documentary evidence, in support of their respective stand. The trial Court finally dismissed the suit. Aggrieved, the plaintiff-respondents herein, filed an appeal against the judgment and decree dated 18-08-2008 passed by Civil Judge S.A.O. 8 of 2009 -2- (Jr. Divn.), Ambala City. During the pendency of the appeal, an application under Order 41 Rule 27 read with Section 151 CPC for permission to lead additional evidence was filed. The said application under Order 41 Rule 27 was allowed. The said appeal was allowed with the following directions :- " Since the evidence which may be led is
likely to effect the result of the suit, therefore, this necessitates the remand of case. Consequently, the judgment and decree under appeal are set aside and the case is remanded to learned trial court to decide it afresh, allowing further opportunity to the appellants/plaintiffs to lead evidence with an opportunity to the respondents/defendants to rebut the additional evidence of the appellants/plaintiffs. The parties are directed to appear before the learned trial Court on 30-01-2009. Trial Court file be sent back with a copy of this order well before the date fixed." Aggrieved with the above directions, the appellants, herein, have filed the present Second Appeal, challenging the order dated 22-01-2009 passed by the Additional District Judge, Ambala and raised two fold arguments. Firstly, the application under Order 41 Rule 27 could not be allowed, in as much as, Ajit Singh, Draftsman, had appeared as PW-2 who was produced by the respondent-plaintiffs for proving their case that there were parks in the colony but Ajit Singh PW-2, who was draftsman in the Town Planner's Office, categorically stated that in the drawing which is being relied upon by the respondent/plaintiffs, there was no mention of parks. Rather, these were open spaces. Thus, sufficient evidence had already been led on the issue.
S.A.O. 8 of 2009 -3- Secondly, the Appellate Court could, at the most, either take such evidence itself or direct the Court, whose decree, the appeal is preferred to take such evidence and send the report to the Appellate Court. Under no circumstances, the lower Appellate Court could have set aside the judgment and decree of the trial Court while remanding the case back to the trial Court. To substantiate the legal issue, learned counsel for the appellants relied on the judgment of Hon'ble the Apex Court in the case of P. Purushottam Reddy and another vs. Pratap Steels Ltd. 2002(2) Supreme Court Cases 686 and also the judgment of this Court titled as Manjit Singh and another vs. Manorath Singh Kohli R.S.A. No.4097 of 2007, decided on 19-02-2008.
Learned counsel for the respondents, on the other hand, submitted that it was only after filing of the appeal that the appellants were able to lay their hands on the documents obtained by S.K. Gupta, respondent No.1 under R.T.I. Act from District Town Planning Department, Ambala and Municipal Council, Ambala City in respect of the matter in issue, i.e about the park and carving out the colony on the land owned by late Capt. Ranjit Singh, who is being represented at the moment by Capt. Gurdeep Singh, as respondent/defendant No.2. The District Town Planner and the Executive Officer, Municipal Council, Ambala City had supplied the following documents, wherefrom it could be well inferred that the subject matter of the suit before the learned Trial Court as well as now before this Court is entirely covered by the documents supplied under the R.T.I. Act, which had been withheld by the office of District Town Planner, Ambala and denied in toto by the respondents/defendants, particularly, the S.A.O. 8 of 2009 -4- notifications of the Governor of Punjab approving the colony in respect of the land owned by Capt. Ranjit Singh. Learned counsel for the respondents relied on the judgment of Hon'ble the Apex Court, in the case of K. Venkataramiah vs. A. Seetharama Reddy AIR 1963 Supreme Court Cases 1526.
After hearing learned counsel for the parties, I do not agree with the first argument raised by learned counsel for the appellants that in view of the evidence of Ajit Singh, Draftsman (PW-2) there were no parks shown in the map which is in the custody of Town Planner, no further evidence was required to be produced. The evidence, now sought to be produced, was not available with the plaintiff-respondents at the time of the appeal and the same became available only after the documents were obtained under the R.T.I Act in respect to the matter in issue. There appears to be no intentional delay on the part of the appellants to withhold the documents under Order XLI Rule 27 of the Code. Additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equally well settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunas or to patch up the weak points in the case as has been held by the Supreme Court in the case of N. Kamalam v. Ayyaswami 2001(4) RCR (Civil) 193 (SC) : 2001(7) SCC 503. The S.A.O. 8 of 2009 -5- discretion given to the Courts for allowing additional evidence under Order XLI Rule 27 of the Code has to be exercised judicially and sparingly as is the view expressed by the Supreme Court in the case of Mhavir Singh and others v. Naresh Chandra and another 2001(1) RCR (Civil) 454 (SC) : 2001(1) SCC 309.
On applying the above principal in the facts and circumstances of the case, it becomes evident that the additional evidence, sought to be produced by the plaintiff/appellants was not available inspite of due diligence and they were able to obtain the same only under the R.T.I. Act. Moreover, the additional evidence is necessary to enable the Appellate Court to decide a substantial issue. The judgments cited by learned counsel for the appellants, titled as Manjit Singh and another (supra) as well as Siri Krishan and others vs. Sanwal and others (Regular Second Appeal No.272 of 1983, decided on 07-01-2004) are, therefore, not applicable in the facts and circumstances of the present case. Accordingly, there is no ground to interfere in the directions issued by Additional District Judge, Ambala, permitting the plaintiff-respondents to produce additional evidence. The plaintiff-respondents, therefore, have been rightly permitted to produce the documents, annexed with the application, in their evidence. Taking up the second submission of the learned counsel for the appellants, there is merit in the same. The judgment and decree could not be set aside and the Appellate Court could, at the most, either take such evidence itself or direct the Court, whose decree, the appeal is preferred to take such evidence and send the report to the Appellate Court. As mentioned above, learned counsel for the plaintiff-appellants has placed S.A.O. 8 of 2009 -6- reliance on the judgment of Hon'ble the Apex Court in the case of P. Purushottam Reddy and another (supra) which reads as follows :- " The next question to be examined is the legality and propriety of the order of remand made by the High Court. Prior to the insertion of Rule 23-A in Order 41 of the Code of Civil Procedure by the CPC Amendment Act, 1976, there were only two provisions contemplating remand by a court of appeal in Order 41 CPC. Rule 23 applies when the trial court disposes of the entire suit by recording its findings on a preliminary issue without deciding other issues and the finding on preliminary issue is reversed in appeal. Rule 25 applies when the appellate court notices an omission on the part of the trial court to frame or try any issue or to determine any question of fact which in the opinion of the appellate court was essential to the right decision of the suit upon the merits. However, the remand contemplated by Rule 25 is a limited remand inasmuch as the subordinate court can try only such issues as are referred to it for trial and having done so, the evidence recorded, together with findings and reasons therefor of the trial court, are required to be returned to the appellate court. However, still it was a settled position of law before the 1976 Amendment that the court, in an appropriate case could exercise its inherent jurisdiction under Section 151 CPC to order a remand if such a remand was considered pre-eminently necessary ex debito justitiae, though not covered by any specific provision of Order 41 CPC. In cases where additional evidence is required to be taken in the event of any one of the clauses of sub-rule (1) of Rule 27 being attracted, such additional evidence, oral or documentary, is allowed to be produced either before the appellate court itself or by directing any court subordinate to the appellate court to S.A.O. 8 of 2009 -7- receive such evidence and send it to the appellate court. In 1976, Rule 23-A has been inserted in Order 41 which provides for a remand by an appellate court hearing an appeal against a decree if (i) the trial court disposed of the case otherwise than on a preliminary point, and (ii) the decree is reversed in appeal and a retiral is considered necessary. On twin conditions being satisfied, the appellate court can exercise the same power of remand under Rule 23-A as it is under Rule 23. After the amendment, all the cases of wholesale remand are covered by Rules 23 and 23-A. In view of the express provisions of these Rules, the High Court cannot have recourse to its inherent powers to make a remand because, as held in Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati (AIR at p. 399), it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code. It is only in exceptional cases where the court may now exercise the power of remand dehors Rules 23 and 23-A. To wit, the superior court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by Order 20 Rule 3 or Order 41 Rule 31 CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for rewriting the judgment so as to protect valuable rights of the parties. An appellate court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and, therefore, must be avoided."
In the case in hand, the trial Court decided the suit by recording findings on all the issues. The appeal against the same is still pending before the Appellate Court. The application for additional evidence S.A.O. 8 of 2009 -8- was filed before the Appellate Court. The present additional evidence was taken on record in the event of Order 41 Rule 27 having been attracted and hence, it was a case, where the Appellate Court should have either recorded the evidence and went on to decide the appeal after taking into account the additional evidence so recorded by itself or remanded the case back to the trial Court without setting aside the judgment and directed the trial court to record the evidence and send the report after recording its findings to the Appellate Court.
Accordingly, the order dated 22-01-2009 passed by Additional District Judge, Ambala is partly set aside to the extent vide which the judgment and decree dated 18-08-2008 passed by Civil Judge (Jr. Divn.) Ambala City has been set aside. However, the permission granted to lead additional evidence and produce the documents as annexed with the application under Order 41 Rule 27 is upheld. Thus, the appeal is partly allowed with following modifications :-
The directions, setting aside the judgment and
decree under appeal is set aside. The Civil Judge (Jr. Divn.) Ambala City will now record the additional evidence, oral or documentary produced before it and send its report to the Appellate Court of Additional District Judge, Ambala and the Appellate Court shall, thereafter, hear the appeal after taking into consideration the report submitted by the trial Court.
The parties are, accordingly, directed to appear before the trial Court on 24-07-2009.
Disposed of accordingly.
July 9, 2009
Whether to be referred to the Reporter : Yes / No