SAT No. 1300 of 2006 and SA No. 279 of 2014. Case: Associated Electronics and Ors. Vs Anilendu Sekhar Naskar and Ors.. High Court of Calcutta (India)
| Case Number | SAT No. 1300 of 2006 and SA No. 279 of 2014 |
| Counsel | For Appellant: Malay Ghosh, Ld. Sr. Adv., Debashis Roy, Paritosh Sinha, Amitava Mitra and Snehashis Sen, Advs. and For Respondents: Probal Kumar Mukherjee, Ld. Sr. Adv., Sukanta Chakraborty, Sakabda Roy and Anindya Halder, Advs. |
| Judges | Arindam Sinha, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XLI Rules 27, 28, 29; Section 100 |
| Judgement Date | March 28, 2017 |
| Court | High Court of Calcutta (India) |
Judgment:
Arindam Sinha, J.
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This second appeal is from judgment dated 31st January, 2006 of the 8th Court of Civil Judge (Senior Division) at Alipore in Title Appeal No. 50 of 2001. The defendants in the suit are the appellants.
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The second appeal was admitted on the following substantial question of law. "Whether the learned court of appeal below committed substantial error of law in relying upon additional evidence taken before the learned first appellate court below after allowing an application under Order XLI Rule 27 of the Code of Civil Procedure by not giving opportunity to the present appellants to give evidence on rebuttal in clear violation of Order XLI Rule 28 of the Code?"
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The facts, so far as they are relevant for the purpose of adjudication of this appeal, are that the respondents sued for recovery of possession on the ground that lease dated 18th September, 1964 stood determined by efflux of time limited thereby. The suit was decreed by the Trial Court. The Appellate Court affirmed the judgment and decree but in doing so had allowed additional evidence to be produced by the respondents.
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Mr. Ghosh, learned senior advocate appeared on behalf of the appellants and submitted, there can be no dispute that the plaint did not mention a registered deed of lease. One of the issues before the Trial Court was whether the appellants are tenants under the respondents. The respondents' case made out in their application under Order 41 Rule 27 of the Code of Civil Procedure was, inter alia, as is reproduced below:-
3. That your Petitioners adduced evidence in the Suit, and filed a stamped copy of the said Deed of Lease which was exhibited by the Ld. Court without objection from the side of the Defendants/Appellants. Be it mentioned here that the original Deed of Lease which is a registered one is in the possession of the Appellants/Defendants who did not adduce any evidence in the Suit that the Lease was not a registered one.
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6.....
Your Petitioners further submit that the Ld. Court may be pleased to admit into evidence the certified copies of the said Index 1, page 14, so far it relates to the Lessor Nagendra Nath Naskar, and the certified copy of the Index 1(A) at page 72, so far it relates to Associated Electronics in to evidence (filed herewith by Firisth), as because the said certified copies dispel the doubt of the Ld. Court, if any, as to whether the Lease-in-question was a registered one, or not.
Your Petitioners have annexed the xerox copies of the said documents to this Petition, which are marked as A and A (1).
The Ld. Court may please to admit the said certified copies (two sheets) into evidence in order to enable the Ld. Court to pronounce the Judgment. The said certified copies came in possession of your Petitioners towards the end of April, 2005, and as the point was not agitated in the Ld. Court below, your Petitioners did not attempt to show the said documents in the Ld. Court below.
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He submitted, his clients' case in opposition to the said application was that additional evidence was not necessary to be produced and the application should be dismissed. In rejecting his clients' contention, the lower Appellate Court while admitting documents in evidence did not give opportunity to his clients to rebut the inference drawn from such documents. The lower Appellate Court erred in not giving opportunity to the appellants to lead evidence in rebuttal whereby no such inference could be drawn. He relied on Order 41 Rules 27 to 29 to submit, the lower Appellate Court allowed production of documents but in the reasons given for allowing the same, it drew an inference of fact being the existence of a registered deed of lease which inference could not be rebutted by his clients though they had a right to attempt to do so in law.
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Mr. Ghosh, relied upon a decision of the Supreme Court in the case of the Land Acquisition Officer, City Improvement Trust Board, Bangalore vs. H. Narayanaiah etc. reported in AIR 1976 SC 2403, in particular to paragraphs 24 and 28. Paragraphs 24 and 28 are reproduced below:-
"24. Another contention which found favour in the Karnataka High Court was that a judgment filed by the respondents claimants in Civil Appeals Nos. 644-650 of 1974, when they appealed to the Karnataka High Court against the orders passed by a Civil Judge of Bangalore, on a reference made under the Acquisition Act, could be accepted as additional...
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