IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4559    OF 2008 (Arising out of S.L.P. (C) No.19941/2007)

   Ram Awatar Saraf        ...   Appellant

Versus

           Bharat Petroleum Corpn. Ltd. ..Respondent

O  R  D  E  R

Learned counsel for the respondent seeks leave of the Court to

withdraw  application  for  impleadment  of  the  State  of  West  Bengal  as  party

respondent. I.A. No. 2 is dismissed as withdrawn.

Leave granted.

This appeal is directed against the judgment and order dated

13.12.2006 passed by a Division Bench of the High Court of Calcutta in First Appeal

No.204/2004 whereby and whereunder,the judgment and decree passed by the Court

below was set aside and the matter was remanded to the trial Court for  adduction of

fresh evidence, inter alia, on the premise that the question as to whether the rights of

the defendant as a tikha tenant in terms of the lease of 1950 stood extinguished in

view of the execution of the fresh  lease  of 1966, further evidence would be necessary

for the purpose of a proper adjudication.  

Such  a  finding,  as  has  rightly  been  contended  by  Mr.  Lalit,

learned senior counsel appearing on behalf of the appellant, does not satisfy the tests

laid down under Order XLI Rule-23 A of the Code of Civil Procedure.

The High Court in its judgment did not say that a re-trial was

necessary.  As indicated hereinbefore  one  of  the  issues  in the  suit  was   purported

extinguishment of  

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the tikha tenancy.  For the adjudication of  the said issue, the parties had adduced

evidence. Whether such evidence is sufficient for the purpose of determination of the

issue is a question which was required to be considered by the High Court itself. We

may,furthermore, notice that the respondent had filed a large number of documents

before us in support of its case. The said documents, admittedly, had not been filed

before the trial Court. Proper course, thus, which could have been resorted to by the

respondent, therefor was to file an application for adduction of additional evidence in

terms of Order XLI Rule 27 of C.P.C. Had such an application was filed, it was for

the  High Court alone to consider as to whether such evidence should be allowed or

not.

The  said  procedure  having  not  been  taken  recourse  to,  we

would not be in a position to determine the issues between the parties finally at this

stage.

We, therefore, set aside the impugned judgment and remit the

matter to the High Court for consideration of the appeal afresh on merit.  

In the event, the respondent files an application for adduction of

additional evidence, the same may be considered on its own merits. We would request

the High Court to consider the desirability of disposing of the matter as expeditiously

as  possible  preferably  within  a  period  of  three  months  from  the  date  of

communication of this order.

The appeal is allowed with the aforementioned observations and

directions.

......................J.       [S.B. SINHA]

......................J.       [CYRIAC JOSEPH]

New Delhi, July 16, 2008.

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