WPMS/1715/2014 of Mahesh Kumar Vs Brijraj AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND ATNAINITAL

Writ Petition (M/S) No. 1715 of 2014 (Under Article 227 of the Constitution of India)

Mahesh Kumar

....….…… Writ Petitioner

versus

Brijraj and others

………………Respondents

Mr. Mahaveer Singh Tyagi and Ms. Lovely Grover, Advocate, present for the writ petitioner. Mr. Siddharth Singh, Advocate, present for the respondents no. 1 & 2.

U.C. Dhyani, J. (Oral)

By means of present writ petition, the petitioner seeks to issue writ or order in the nature of certiorari quashing the impugned order dated 09.07.2014 (annexue-9) passed by learned Board of Revenue, Uttarakhand, Dehradun.

2. Learned counsel for the petitioner submitted that the impugned order was passed by learned Judicial Member of Board of Revenue, Uttarakhand, on 09.07.2014. It is the submission of learned counsel for the petitioner that the Board of Revenue, without assigning any reason to explain the delay in filing the documents and considering why the documents are necessary for the proper disposal of the case, allowed the application dated 20.01.2014 and permitted the respondents no.1 and 2 to submit the documents mentioned

in the list vide impugned order dated 09.07.2014. Learned Board of Revenue has passed the impugned order without following the process of law and without giving any cogent reason for doing so.

3. Learned counsel for the petitioner further submitted that learned Board of Revenue, while passing the impugned order, over looked the important aspect that the application does not disclose any reason as to why the documents are being filed at such belated stage and how they are necessary for just and proper disposal of the case. The impugned order is non-speaking order, therefore, the same is liable to be set aside.

4. Learned counsel for the petitioner further placed decision rendered by Hon’ble Apex Court in Union of India v. Ibrahim Uddin (S.C.), [2012 (94) ALR 895]: paras 25, 26, 27, 28, 29, 30 and 31 of which are important and are being excerpted herein below:

“25. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such discretion is only judicial discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526; The Municipal Corporation of Greater Bombay v. Lala Pancham &

Ors., AIR 1965 SC 1008;Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553).

26. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable party to raise new point in appeal. Similarly, where party on whom the onus of proving certain point lies fails to discharge the onus, he is not entitled to fresh opportunity to produce evidence, as the Court can, in such case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).

27. Under Order XLI, Rule 27 CPC, the appellate Court has the power to allow document to be produced and witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in particular way. In other words, it is only for removing lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors. (supra)].

28. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the nonproduction of the evidence in the trial court, additional evidence should not be admitted in appeal as party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal.(Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101).

29. The inadvertence of the party or his inability to understand the legal issues involved or the wrong

advice of pleader or the negligence of pleader or that the party did not realise the importance of document does not constitute "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself sufficient ground for admitting that evidence in appeal.

30. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass satisfactory judgment.

31. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It is salutary provision which operates as check against too easy reception of evidence at late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where further appeal lies from the decision, the record of reasons will be useful and necessary for the Court of further appeal to see, if the discretion under this rule has been properly exercised by the Court below. The omission to record the reasons must, therefore, be treated as serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the rule.”

5. Learned counsel for the contesting respondents fairly submitted that the impugned order lacks reasoning.

6. Learned counsel for the petitioner further submitted that the provisions of Order 41 Rule 27 C.P.C. are not applicable to the proceedings of the Revisional Court under U.P. Land Revenue Act, 1901.

7. It goes without saying that learned Judicial Member, Board of Revenue has not assigned any reason while allowing the revision. He has also not discussed the applicability of such provision to the proceedings of U.P.

Land Revenue Act, 1901 in the revision. Such non-speaking order, therefore, cannot sustain. This Court has, therefore, no option, but to set aside the order impugned and allow the revision in view of the law laid down by the Hon’ble Apex Court in Union of India vs. Ibrahim Uddin’s case (supra).

8. Writ Petition is, therefore, allowed. Impugned order dated 09.07.2014 is set aside. The matter is remitted back to learned Board of Revenue to decide the application dated 20.01.2014 for filing the additional evidence in the light of the observations made by this Court in the body of this judgment, afresh, after affording due opportunity of hearing to both the sides, according to law.

9. Parties are directed to appear before the learned Board of Revenue on 17[th] August, 2015.

(U.C. Dhyani, J.)

Dated:27.07.2015Kaushal