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September 7, 2003 

Appellate Court must record the reason to allow additional evidence

High Court Division (Civil Revisional Jurisdiction)
The Supreme Court of Bangladesh
Pronab Kanti Mondal
v
Shannyashi Mondal & ors.
Before Mr. Justice Gour Gopal Saha and Mr. Justice Shiekh Rezowan Ali.
Date of Judgment: November 6, 2002.
Result: Rule absolute.

Background
Gour Gopal Saha, J: This Rule is directed against Order dated 20.6.2002 passed by the 1st Court of Additional District Judge, Khulna. The order was passed in Title Appeal No. 335 of 2000 allowing the application of opposite party nos. 1 and 2 under Order XIII Rule 10 of the Code of Civil Procedure calling for 3 volumes of the register from the office of the Khulna Sadar Sub-Registrar.

Facts in brief
Facts relevant for the purpose of the case are that opposite party Nos. 1-5 as plaintiffs instituted Title Suit No. 62 of 1992 in the 2nd Court of Subordinate Judge, Khulna. The case was instituted for a declaration that the preliminary decree passed in Title Suit No. 273 of 1962 and the consequent final decree dated 23.9.65 are fraudulent, collusive and not binding upon the plaintiffs.
Defendant Nos. 1 and 2 contested the suit by filing written statement denying the material allegations of the plaint. The defendant stated inter alia that the preliminary decree and the final decree in Title Suit No. 273 of 1962 were passed legally and properly and all allegations to the contrary are false and frivolous. The learned Subordinate Judge, 4th Court, Khulna decreed the suit in part against defendant Nos. 2-3 by his judgement dated 13.8.2000.

Being aggrieved by the aforesaid impugned judgement and decree dated 13.8.2000, plaintiff-opposite party Nos. 1-5 preferred Title Appeal No. 335 of 2000 before the District Judge, Khulna. This appeal was directed against decreeing the suit in part. The said appeal was later transferred to the Ist Court of Additional District Judge for disposal. Thereafter on 29.4.2002 plaintiff-opposite parties 1-5 filed an application before the learned Additional District Judge for taking additional evidence on the ground that certain kabalas were not with them, the original of which was destroyed under unknown circumstances, are required to be taken in evidence for effectual disposal of the appeal.

The learned Subordinate Judge by his order dated 28.4.2002 allowed the plaintiff-appellants' pray, for additional evidence under Order 41 Rule 27 of CPC on the simple ground that there is no legal bar in accepting additional evidence. Thereafter the plaintiff appellants filed another application before the Appellate Court under Order 13 Rule 10 read with section 115 of the Code of Civil Procedure praying for calling the relevant volumes of the Kabalas in question from the office of the Sadar Sub-Registrar, Khulna. The learned Additional District Judge by his impugned order dated 20.6.2002 allowed the appellants'' prayer for calling the volumes of the kabalas from the office of the Sub-Registrar Sadar Khulna.

It is against the order-dated 20.6.2002 that the petitioner moved this Court and obtained the present Rule.

Deliberation
We have carefully gone through the case records as well as the impugned order passed by the learned Additional District Judge, Khulna and the application for taking additional evidence. In the application for taking additional evidence under Order 41 Rule 27 CPC the appellant stated that the kabalas in question were not with them and some of them were destroyed under varying circumstances. Nowhere in the petition the applicants stated that they were not aware of the existence of the kabalas in question earlier or that the trial Court refused to accept the same through produced before it. It has not been stated in the application that when the appellant came to know about the kabalas in question before obtaining the certified copies of the kabalas. From the statements made in the application it is manifestly evident that the appellants were blowing hot and cold and were fishing in mysterious circumstances.

Order 41 Rule 27 of the Code of Civil Procedure clearly provides that 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
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial cause.

Sub-Clause (2) of Rule 27 of Order 41 CPC further provides that when additional evidence is allowed by an Appellate Court, the court shall record the reason for its admission.

From the discussion above, it is found that in this case the learned Appellate Court did not record any reason whatsoever for allowing the appellants' prayer for adducing additional evidence under Order 27 Rule 41 CPC. Moreover, we have already found that the appellants were banking on absolutely uncertain and inconsistent stands while making the prayer for taking additional evidence regarding some kabalas. In such view of the matter, we are clearly of the opinion that the learned Additional District Judge erred in law in allowing the appellants' prayer for taking additional evidence on inconsistent pleas.

Being emboldened by order dated 28.4.2002, the appellants filed another application on 29.4.2002 under Order 13 Rule 10 CPC praying calling for the volumes of certain kabalas from the office of the Sub-registrar, Sadar Khulna. In this application also the appellants stated that due to unknown reasons the original Kabalas were destroyed or that the original kabalas were not with the purchasers. Here again the appellants clearly gambled on the disputed kabalas in question. The learned Additional District Judge thus without applying his judicial mind into the facts and circumstances of the case and the law bearing on the subject, allowed the application under Order 13 Rule 10 CPC in a most causal manner. The impugned order is not only cryptic but is totally non-speaking, which is not countenanced by law.

There is no dispute to the proposition of law that the Appellate Court can accept additional evidence when the trial court refused to accept it or it is found necessary by the Appellate Court for pronouncement of a proper judgement. The Appellate Court can also accept additional evidence for any substantial cause. In the facts of the case, we are clearly of the view that the opposite parties miserably failed to make out any case for taking additional evidence. The learned Additional District Judge, on total non-application of a judicial mind into the facts and circumstances of the case, fell in error in allowing additional evidence and calling for the volumes of the kabalas from the office of the Sub-Registrar.

The object of Rule 27(2) of Order 41 CPC is to keep a clear record of what weighed with the Appellate Court in allowing the additional evidence to be produced whether this was done on the ground (1) that the court appealed upon has refused to admit evidence which ought to have been admitted, or (ii) it allowed it because it requires it to enable it to pronounce judgement in the appeal or (iii) it allowed this for any other 'substantial cause" In the case under review.

There is no dispute to the fact that the disputed kabalas are never produced before the trial court and as such there is no question of refusal by the trial court to accept the documents. We also find that the Appellate Court did not find it necessary for pronouncing a proper judgement in the appeal. The only option then open to the Appellate Court to allow additional evidence for a substantial cause. We have already found that the appellants were always inconsistent and shady in making out a case for taking additional evidence and in such circumstances the prayer for taking additional evidence deserved no consideration.

Decision
In the facts and circumstances of the case and the materials on record, we are clearly of the view that learned Additional District Judge erred in law in allowing additional evidence and in calling for the volumes of certain kabalas from the office of the Sadar Sub-Registrar without assigning any reason whatsoever. The Impugned order must be held to be illegal and arbitrarily.

In the result, the Rule is made absolute without any order as to costs. The order of stay granted earlier by this Court stands vacated. The impugned order dated 20.6.2002 passed by the 1st Court of Additional District Judge, Khulna in Title Appeal No. 335 of 2000 is set aside. The order dated 28.4.2002 allowing the prayer for taking additional evidence is also set aside in the interest of justice.

Mr Md Khurshid Alam Khan, Advocate for petitioner and Mr Md Abdul Jabbar, Advocate for opposite party.