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CASE NO.: Appeal (civil)  2785 of 2008

PETITIONER: NORTH EASTERN RAILWAY ADMINISTRATION, GORAKHPUR

RESPONDENT: BHAGWAN DAS (D) BY LRS

DATE OF JUDGMENT: 11/04/2008

BENCH: S. B. SINHA & D.K. JAIN

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO.    2785       OF 2008 [Arising out of S.L.P. (C) No. 17725 of 2006)

D.K. JAIN, J.:

Leave granted. 2.      This appeal by North Eastern Railway Administration  arises out of orders dated 17th July, 2002 and 14th June, 2005  passed by the High Court of Uttaranchal.  By the first  impugned order, the second appeal, preferred by the  appellant, was dismissed on the ground that no substantial  question of law arose for consideration of the Court.  By the  same order, the High Court has dismissed one of the  applications’ filed by the appellant under Order 6 Rule 17 of  the Code of Civil Procedure, 1908 (for short ’C.P.C.’), seeking  leave to amend the written statement, on the ground that such  an application cannot be entertained in the second appeal.  An  application preferred by the appellant for review of order dated  17th July, 2002 has been dismissed vide latter order dated 14th  June, 2005.   3.      In order to appreciate the issue, requiring determination,  a few material facts may be stated: The respondent herein instituted a suit for perpetual  prohibitory injunction against the appellant herein,   restraining them from interfering in his possession and  cultivation of crop on plot bearing Nos.129 and 131 situated in  village Bhajanpura, Tehsil and District Champawat.  The suit  was contested by the appellant on the ground that after  acquisition, the suit land had been transferred to them by the  Government. 4.      Vide order dated 13th March, 2001, the Trial Court  decreed the suit, inter alia, holding that the respondent is a  Bhumidar and in possession of the suit land and the transfer  of possession by the U.P. Government to the appellant was not  proved.  Against the said decree, the appellant filed appeal  before the District Judge, which was dismissed vide order  dated 13th November, 2001. 5.      Being aggrieved, the appellant preferred second appeal  before the High Court.  Alleging that the respondent had  obtained the decree by concealing material facts, it was  averred that, as per the official records, the name of Kanhai,  grandfather of the respondent, was entered as Maurnsin  Khasikar in Varg-2 at Zaman 8 in the revenue record, which  showed that he was simply a Pattedar, while the State of U.P.  was its owner.  It was pleaded that vide government order

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dated 16th June, 1969 the suit land (3.615 acres) was ordered  to be transferred to the appellant on deposit of Rs.4855.60p.   In pursuance of the said order, the appellant deposited the  money and took possession of the land in question from  Kanhai, who had not only received Rs.201.56p as  compensation from the government, he had delivered the  possession of the land to the appellant and had also moved an  application to Tehsildar Khatima for deleting his name from  the revenue records.  He also gave a statement to the effect  that he was not in possession of the land and, therefore, since  October, 1971 the appellant had become the owner in  possession of the land.  It was also stated that since the State  of U.P. was the owner of the land, there was no question of  acquiring it by issuing notifications under Sections 4 and 6 of  the Land Acquisition Act, 1894.  It was also alleged that  Kanhai had fraudulently, without getting any notice issued  either to the State of U.P. or to the appellant, obtained the  Bhumidhari Sanad in the month of December, 1971, although  prior to that period he had already surrendered possession of  the land and was not in possession thereof.  It was, thus,  pleaded that Sanad having been obtained by playing fraud, it  was null and void and could not create any right or title in  favour of Kanhai.  Subsequently, in support of the said pleas  and contentions, in order to bring on record the copies of the  official records, the appellant moved an application under  Order 41 Rule 27 C.P.C., before the High Court on 3rd April,  2002. 6.      Vide order dated 3rd April, 2002, the High Court directed  the Collector, Nainital to produce the notification under which  the suit land had been acquired.  Pursuant thereto, the  Collector filed a detailed report, inter alia, pointing out that  since the land belonged to the government, there was no  question of issue of any notification under the Land  Acquisition Act, 1894 and, therefore, the notification/  declaration under Sections 4 and 6 of the Land Acquisition  Act, 1894 could not be produced.  It was also pointed out that  a sum of   Rs.201.56p had been paid to Kanhai as  compensation.  However, the High Court without even  referring to the report of the Collector, which, in fact, had been  submitted pursuant to the direction issued by it, dismissed  the second appeal, on the afore-stated ground.   7.      Aggrieved, the appellant moved an application seeking  review of order dated 17th July, 2002, on the ground that some  material facts had escaped the attention of the Court while  passing the order dated 17th July, 2002. 8.      During the pendency of the review application, two more  applications were filed by the appellant on 24th March, 2003  and 28th June, 2004 seeking permission to urge additional  grounds in support of the amendment application as well as  the review application.  As noted above, the review application  was also dismissed. 9.      Mr. V. Shekhar, learned senior counsel appearing on  behalf of the appellant has vehemently contended that apart  from the fact that the High Court has failed to even take note  of the application filed by the appellant under Order 41 Rule  27 C.P.C., it has committed grave error in rejecting the  amendment application on the ground of its maintainability at  the stage of the second appeal.  The submission is that since  the respondent has obtained the decree by concealing material  facts, the decree is a nullity and, therefore, non consideration  of the additional material placed on record, has resulted in  grave miscarriage of justice.  It is asserted that had the  application been allowed, the additional evidence brought on  record by the appellant, which was nothing but a part of the  official record, would have exposed the fraud played by the

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respondent and in any case, would have made material  difference in the finding recorded by the lower courts.  To  buttress the argument, learned counsel has referred us to  various documents placed on record by the appellant. 10.     Per contra, learned counsel for the respondent while  supporting the order passed by the High Court has submitted  that the appellant cannot be permitted to fill up the lacuna by  adducing additional evidence at this belated stage. 11.     We have considered the submissions of the learned  counsel in the light of the documents on record.  We are  constrained to observe that the High Court has altogether  failed to consider the application filed by the appellant under  Order 41 Rule 27 C.P.C.  We also feel that even the application  under Order 6 Rule 17 C.P.C. has not been dealt with in its  correct perspective and the High Court was in error in  rejecting the same on the sole ground that such an application  was not maintainable at the stage of second appeal. 12.     Though the general rule is that ordinarily the appellate  court should not travel outside the record of the lower court  and additional evidence, whether oral or documentary is not  admitted but Section 107 C.P.C., which carves out an  exception to the general rule, enables an appellate court to  take additional evidence or to require such evidence to be  taken subject to such conditions and limitations as may be  prescribed.  These conditions are prescribed under Order 41  Rule 27 C.P.C.  Nevertheless, the additional evidence can be  admitted only when the circumstances as stipulated in the  said rule are found to exist.  The circumstances under which  additional evidence can be adduced are :  (i)  the court from whose decree the  appeal is preferred has refused to admit  evidence which ought to have been  admitted, (clause (a) of sub rule (1)) or (ii) the party seeking to produce  additional evidence, establishes that  notwithstanding the exercise of due  diligence, such evidence was not within  the knowledge or could not, after the  exercise of due diligence, be produced by  him at the time when the decree appealed  against was passed, (clause aa, inserted  by Act 104 of 1976) or (iii) 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. (clause (b) of sub rule (1)).  13.     It is plain that under clause (b) of sub rule (1) of Rule 27  Order 41 C.P.C., with which we are concerned in the instant  case, evidence may be admitted by an appellate authority if it  ’requires’ to enable it to pronounce judgment ’or for any other  substantial cause’.  The scope of the rule, in particular of  clause (b) was examined way back in 1931 by the Privy  Council in Parsotim Thakur & Ors. Vs. Lal Mohar Thakur  & Ors. .  While observing that the provisions of Section 107 as  elucidated by Order 41 Rule 27 are clearly not intended to  allow litigant, who has been unsuccessful in the lower court,  to patch up the weak parts of his case and fill up omissions in  the court of appeal, it was observed as follows: "Under Cl. (1) (b) it is only where the  appellate Court ’requires’ it, (i.e., finds it  needful) that additional evidence can be  admitted.  It may be required to enable  the Court to pronounce judgment or for  any other substantial cause, but in either

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case it must be the Court that requires it.   This is the plain grammatical reading of  the sub-clause.  The legitimate occasion  for the exercise of this discretion is not  whenever before the appeal is heard a  party applies to adduce fresh evidence,  but ’when on examining the evidence as it  stands some inherent lacuna or defect  becomes apparent."

14.     Again in K. Venkataramiah Vs. A. Seetharama Reddy  & Ors.  a Constitution Bench of this Court while reiterating  the afore-noted observations in Parsotim’s case (supra),  pointed out that the appellate court has the power to allow  additional evidence  not only if it requires such evidence ’to  enable it to pronounce judgment’ but also for ’any other  substantial cause’.  There may well be cases where even  though the court finds that it is able to pronounce judgment  on the state of the record as it is, and so, it cannot strictly say  that it requires additional evidence ’to enable it to pronounce  judgment’, it still considers that in the interest of justice  something which remains obscure should be filled up so that  it can pronounce its judgment in a more satisfactory manner.   Thus, the question whether looking into the documents,  sought to be filed as additional evidence, would be necessary  to pronounce judgment in a more satisfactory manner, has to  be considered by the Court at the time of hearing of the appeal  on merits.  15.     Insofar as the principles which govern the question of  granting or disallowing amendments under Order 6 Rule 17  C.P.C. (as it stood at the relevant time) are concerned, these  are also well settled.  Order 6 Rule 17 C.P.C. postulates  amendment of pleadings at any stage of the proceedings. In  Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil &  Ors.  which still holds the field, it was held that all  amendments ought to be allowed which satisfy the two  conditions: (a) of not working injustice to the other side, and  (b) of being necessary for the purpose of determining the real  questions in controversy between the parties.  Amendments  should be refused only where the other party cannot be placed  in the same position as if the pleading had been originally  correct, but the amendment would cause him an injury which  could not be compensated in costs. (Also see: Gajanan  Jaikishan Joshi Vs. Prabhakar Mohanlal Kalwar )  16.     These are the broad principles to be kept in view while  dealing with applications under Order 41 Rule 27 and Order 6  Rule 17 C.P.C. 17.     It is manifest that in the present case, the High Court did  not examine the record of the case with the thoroughness  which was expected at the time of disposal of the pending  applications.  On a perusal of the impugned decisions, it is  clear that the High Court was not even aware of the pendency  of the application under Order 41 Rule 27 C.P.C. seeking leave  to adduce additional evidence.  A perusal of the documents,  which came to light pursuant to the directions given by the  High Court on 3rd April, 2002, prima facie, goes to show that  these are likely to widely affect the decision of the Court in one  way or the other.  If the stand of the appellant, which,  according to them, is borne out from the documents now on  record, is found to be correct, then obviously these will have  material bearing on the core issue, namely, whether the decree  dated 13th March, 2001 is a nullity, having been allegedly  obtained by concealing material facts and playing fraud on the  Court.  It is trite that a judgment or decree by the first court or  by the highest court \026 obtained by playing fraud on the Court

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is a nullity and non est in the eyes of law. (See S.P.  Chengalvaraya Naidu Vs. Jagannath  and India  Household and Healthcare Ltd. Vs. LG Household &  Healthcare Ltd.) .  In any event, had the Court found the  additional documents, sought to be admitted, necessary to  pronounce the judgment in the appeal, in a more satisfactory  manner, it would have allowed the application and, if not, the  application would have been dismissed.  Nonetheless, it was  bound to consider the application before taking up the appeal.   We say no more at this stage, as the aforementioned  applications are yet to be considered by the High Court on  merits in the light of the legal position, briefly set out  hereinabove.  In view of the afore-noted factual scenario, we  are of the opinion that the impugned judgment and the orders  are erroneous and cannot be sustained.

18.     In the result, the appeal is allowed and the judgment and  orders dated 17th July, 2002 and 14th June, 2005 are set  aside.  The matter is remitted back to the High Court, which  shall, after hearing the parties, take a fresh decision on the  applications preferred by the appellant under Order 41 Rule  27 and Order 6 Rule 17 C.P.C. and thereafter form its opinion  afresh on the merits of the second appeal.  We may clarify that  we have not expressed any final opinion on the merits of the  second appeal as well as the applications, which shall be  considered and disposed of by the High Court on their own  merit in accordance with law.

19.     The appeal stands disposed of accordingly leaving the  parties to bear their own costs.