Calcutta HC Directs: “Documents Cannot Be Totally Discarded” – Consider Necessity Under Order 41 Rule 27 CPC
Isabella Mariam
In a recent judgment, the High Court at Calcutta, Appellate Side, Single Bench comprising Justice Biswaroop Chowdhury, allowed a revisional application in part, remitting the matter back to the Learned Appellate Court. The core judicial action involved reconsideration of additional documentary evidence in an appeal arising from an eviction decree. The directive stemmed from the petitioner’s inability to produce key documents during trial, now contending they are vital for fair adjudication.
The Bench directed: "The matter is remitted to the Learned Appellate Court to consider the necessity of producing the documents as sought to be relied upon by the petitioner in his application made under Order 41 Rule 27 of Code of Civil Procedure at the time of hearing of Title Appeal No. 43/2017 on merits."
The petitioner, M/s. Child Care Aqua Fountain, represented by its proprietor Smt. Sreoshi Dutta, is the defendant in Title Suit No. 226 of 2011 before the Learned 2nd Court, Civil Judge (Senior Division), Barasat. The suit pertains to eviction proceedings initiated by the respondent, Pradip Bhattacharjee, who also serves as the sole plaintiff in the aforementioned suit. The petitioner is also the appellant in Title Appeal No. 43 of 2017 before the Learned District Judge, North 24 Parganas, which challenges the eviction decree issued by the Trial Court.
In the appeal proceedings, the petitioner filed an application under Order XLI Rule 27 of the Code of Civil Procedure seeking to admit additional documentary evidence. This application was dismissed by the Appellate Court on 8 February 2024, prompting the present revisional application under Article 227 of the Constitution of India.
The petitioner argued that the documents in question were originally filed in Title Suit No. 24 of 2011—an earlier suit for specific performance of a sale agreement filed by the petitioner's full-blooded sister and brother, Diana Hoare and Debaditya Hoare, against the same respondent. According to the petitioner, the documents were vital as they related directly to the same suit property and could not be produced earlier because they were with the court records of the earlier suit.
It was asserted that possession of the suit property had already been handed over to the aforementioned purchasers through a sale agreement, and that the petitioner had taken a rent receipt for only one month to secure a trade license. This, the petitioner contended, nullified the respondent's claim for rent and occupation charges from the petitioner.
The petitioner submitted that the documents were later impounded and exhibited without objection in Title Suit No. 24 of 2011 and were obtained through certified copies from the said suit. As these documents had bearing on the present appeal, their exclusion would cause "irreparable loss and injury."
The opposite party submitted that the documents lacked relevance, asserting that the petitioner was not a party to the sale agreement dated 29 May 2006 or the document dated 19 September 2006. It was contended that the petitioner's attempt to introduce these documents amounted to bringing in a new and unrelated story with no privity to the respondent.
The Appellate Court, while dismissing the application, observed: "The appellant/defendant has failed to establish its case that would entitle the appellant firm to produce additional evidence at this appellate stage... this Court, even otherwise, does not find any reason to allow additional evidence, more particularly in the face of specific objection raised by the decree holder/respondent."
Aggrieved, the petitioner filed the present revisional application arguing that the impugned order was passed illegally and with material irregularity as the documents were not previously within the petitioner’s possession.
The Single Bench perused the pleadings and observed that the Appellate Court had rejected the petition without giving due consideration to the legal provisions under Order XLI Rule 27 of the Code of Civil Procedure. Citing the legal framework, the Court referred to the circumstances under which additional evidence may be admitted:
"Order 41 Rule 27 CPC- Production of additional evidence in Appellate Court... the appellate Court may allow such evidence or document to be produced, or witness to be examined... if 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."
In particular, the Court stated that under sub-rule 1(b), the appellate court is empowered to allow additional evidence even if diligence is not established, provided such evidence is required to enable the court to pronounce judgment.
In support, the Court cited the Supreme Court’s decision in Sanjay Kumar Singh vs. State of Jharkhand [(2022) 7 SCC 247]:
"Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record such application may be allowed."
The High Court also referenced the judgement in A. Andisomy Chattiar vs. Subburaj Chettiar, noting:
"The admissibility of additional evidence does not depend upon the relevancy to the issue on hand or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not but it depends upon whether or not the appellate Court requires the evidence... to enable it to pronounce judgment or for any other substantial cause."
The Court noted that the petitioner had suffered both an eviction decree and an award of mesne profits from the date of institution of the suit. The documents sought to be introduced were therefore considered not dismissible without a hearing on merits.
The Court allowed the revisional application in part with the following direction:
"The matter is remitted to the Learned Appellate Court to consider the necessity of producing the documents as sought to be relied upon by the petitioner in his application made under Order 41 Rule 27 of Code of Civil Procedure at the time of hearing of Title Appeal No. 43/2017 on merits pending before Learned District Judge North 24 Parganas."
Advocates Representing the Parties
For the Petitioners: Mr. Satyan Mukherjee, Advocate; Mrs. Sayani Ahmed, Advocate; Mr. Purnendu Shekhar Ghosh, Advocate; Mr. Saibal Rakhit, Advocate
For the Opposite Party: Mr. Susenjit Banik, Advocate; Mr. Prasanta Bishal, Advocate
Case Title: M/s. Child Care Aqua Fountain represented by its proprietor Smt. Sreoshi Dutta vs. Pradip Bhattacharjee
Case Number: C.O. 698 of 2024
Bench: Justice Biswaroop Chowdhury
[Read/Download order]
