Sunday, 17 February 2019

Whether court should permit production of additional evidence after disposal of appeal?

 Now the question that falls for consideration is whether after closure of a lis, the provision of Order XLI, Rule 27 can be invoked in order to introduce - which, according to the petitioner is - additional evidence. For the purpose of answering this question, we need to have a look at Order XLI, Rule 27 of the Code of Civil Procedure which is set out hereinbelow in its entirety:-

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

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

[(aa) the party seeking to produce additional evidence, establishes that 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]

(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,

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

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

5. Even a plain reading of the provision of law - as quoted above - clearly reveals that if the Appellate Court requires any document to be produced or any witness to be examined to enable it to "pronounce judgment" (Emphasis supplied by us) or for any other substantial cause, it may allow such evidence or document to be produced or witness to be examined. In the facts of the instant case, however, "judgment" of the Appellate Court has already been "pronounced" on 18th May, 2018 and even if there was "any substantial cause", such cause was required to be present only when the lis was pending. There is no scope for introduction of additional evidence at this belated stage when no lis is pending. If one has to accept the contention of the petitioner that even at this stage, additional evidence can be introduced before the Appellate Court, it would simply mean that a litigant can be allowed to keep his/her lis pending indefinitely before a Court of law by this process. It will also result in a situation simply unheard of and unacceptable in a modern justice system, i.e., a lis pending in perpetuity. The closure of a lis, therefore, is inevitably warranted and this is what has happened in the facts of the instant case upon pronouncement of the judgment dated 18th May, 2018, leading to the appellate decree. We, therefore, have no manner of doubt whatsoever that at this belated stage, production of additional evidence or allowing witness to be examined in order to prove the petitioner's contentions is impermissible and cannot be allowed. Consequentially, there is no scope for review of our judgment and order dated 18th May, 2018.

IN THE HIGH COURT OF CALCUTTA

RVWO No. 27 of 2018

Decided On: 30.11.2018

Mahavir Properties Pvt. Ltd. Vs. Sri Sri Iswar Gajalakshmi Mata Thakurani and Ors.

Hon'ble Judges/Coram:
Biswanath Somadder and Moushumi Bhattacharya, JJ.

Citation: AIR 2019 Cal 1


1. Let the affidavit of service filed in Court today be taken on record.

2. An appellate decree was passed by this Division Bench on 18th May, 2018 for such reasons as contained in our judgment. Thereafter, on 4th September, 2018, a Review was filed, being RVWO 27 of 2018, which was accompanied by two interlocutory applications, the first being, G. A. 2553 of 2018, which contains the following prayers:-

"a) Production of additional evidence of the 1975 sanction plans by the KMC with opportunity to prove the same by calling witnesses.

b) Allowing the witnesses to be examined to prove the petitioner's contention." and the second, being G. A. 2534 of 2018, which contains prayers, inter alia, for leave to be granted to the petitioner to file a Memorandum of Review against the judgment and order dated 18th May, 2018 passed by this Division Bench on such undertakings as specified under prayer (a) and also for stay of operation of the judgment and order dated 18th May, 2018.

3. In the facts of the instant case, a review would be possible only if G A. No. 2533 of 2018 is allowed. The reason is, without additional evidence being brought on record or allowing witnesses to be examined to prove the petitioner's contention, there is no case made out by the petitioner for reopening the appeal sitting in our Review jurisdiction on the limited grounds as provided under Order XLVII of the Code of Civil Procedure.

4. Now the question that falls for consideration is whether after closure of a lis, the provision of Order XLI, Rule 27 can be invoked in order to introduce - which, according to the petitioner is - additional evidence. For the purpose of answering this question, we need to have a look at Order XLI, Rule 27 of the Code of Civil Procedure which is set out hereinbelow in its entirety:-

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

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

[(aa) the party seeking to produce additional evidence, establishes that 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]

(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,

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

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

5. Even a plain reading of the provision of law - as quoted above - clearly reveals that if the Appellate Court requires any document to be produced or any witness to be examined to enable it to "pronounce judgment" (Emphasis supplied by us) or for any other substantial cause, it may allow such evidence or document to be produced or witness to be examined. In the facts of the instant case, however, "judgment" of the Appellate Court has already been "pronounced" on 18th May, 2018 and even if there was "any substantial cause", such cause was required to be present only when the lis was pending. There is no scope for introduction of additional evidence at this belated stage when no lis is pending. If one has to accept the contention of the petitioner that even at this stage, additional evidence can be introduced before the Appellate Court, it would simply mean that a litigant can be allowed to keep his/her lis pending indefinitely before a Court of law by this process. It will also result in a situation simply unheard of and unacceptable in a modern justice system, i.e., a lis pending in perpetuity. The closure of a lis, therefore, is inevitably warranted and this is what has happened in the facts of the instant case upon pronouncement of the judgment dated 18th May, 2018, leading to the appellate decree. We, therefore, have no manner of doubt whatsoever that at this belated stage, production of additional evidence or allowing witness to be examined in order to prove the petitioner's contentions is impermissible and cannot be allowed. Consequentially, there is no scope for review of our judgment and order dated 18th May, 2018.

6. For reasons stated above, RVWO 27 of 2018 together with G. A. 2533 of 2018 and G.A. 2534 of 2018 are liable to be dismissed and stand accordingly dismissed.


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