Hussain Fabrics & ors Vs. Haji Momena Khatun & ors [4 LNJ AD (2015) 114]

Case No: CIVIL PETITION FOR LEAVE TO APPEAL No. 2520 OF 2010

Judge: Md. Muzammel Hossain,

Court: Appellate Division ,,

Advocate: Mahbubey Alam,Mr. Abdul Wadud Bhuiyan,Dr. M. Zahir,Mr. Abdur Razzaque Khan,,

Citation: 4 LNJ AD (2015) 114

Case Year: 2015

Appellant: Hussain Fabrics Limited, represented by its Managing Director and another

Respondent: Haji Momena Khatun and others

Subject: Examination of Witness, Additional Evidence,

Delivery Date: 2011-02-17

APPELLATE DIVISION
(CIVIL)
 
A. B. M. Khairul Haque, CJ
Md. Muzammel Hossain, J
S. K. Sinha, J

Judgment on
17.02.2011
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Hussain Fabrics Limited, represented by its Managing Director and another
...Petitioners
Versus
Haji Momena Khatun and others
...Respondents
 
 
Code of Civil Procedure (V of 1908)
Order VI, Rule 1
In pleading material facts are to be stated and relieves are to be sought which will narrow the controversy in between the parties and will inform each of them of the extent to of their respective claim. In the absence of pleading, no evidence can be adduced and considered.
The cumulative effect of the above mentioned decisions is that pleadings and evidence are completely two different things. Pleadings prepare the suit for contest and evidence adduced in the case in line with the claims and denials stated in pleadings, actually contest the suit. In pleadings facts are to be described and relieves are to be sought which will narrow the controversy between and among the parties concerned, and will inform each of them of the extent to which they need to adduce evidence in support of their respective claim to prove their case. Where there is no pleading, evidence to that effect can not be considered and where there is no evidence, pleadings can not prove the fact and claim.  . . . (15)
 
Evidence Act (I of 1872)
Section 137
In the absence of adducing any evidence either oral or documentary by the defendant Nos. 2 and 3 but only cross examined two of the witnesses for the plaintiff and true effect of such cross-examination if it is able to shake the credibility of such witnesses, it can create a doubt about the case of plaintiffs.
Defendant-petitioner Nos. 2 and 3 did not adduce any evidence whether oral or documentary, before the trial court but their learned Counsel cross-examined two of the witnesses for the plaintiffs-respondents and argued before the Court. True effect of this cross-examination is that if it is able to shake the credibility of the witnesses examined on behalf of the plaintiffs-respondents, it can create a doubt about the case of the plaintiffs-respondents; but it can not prove the case of the defendants-petitioners.  . . . (16)
 
Code of Civil Procedure (V of 1908)
Order XLI, Rule 27
This provision of the Code does not confer any right to the party to adduce additional evidence, It must be felt by the court itself. When no evidence was adduced by the defendant at the trial, he cannot claim as of right to adduce additional evidence at the appellate stage. The defendant only questioned the authority of Kazi Golam Hussain to execute such a contract. The letter issued by the Chairman of the defendant No. 1 Company showing that Kazi Golam Hossain was the Chairman of the Company for which there was no illegality in rejecting the prayer for adducing evidence at the appellate stage by the defendants.
It is abundantly clear that Order 41, Rule 27 of the C.P.C. does not confer any right to the party to adduce additional evidence. The need for additional evidence must be felt by the Court itself. When evidence was not adduced by the defendant at the trial stages, at the appellate stage he cannot claim as of his right, an opportunity to adduce evidence. Now the question is whether the High Court Division committed an error of law resulting an error in the decision by rejecting the application for adducing additional evidence occasioning failure of justice. The genuineness of the agreement for sale could not be questioned by the defendants, what they did question was the authority and capacity of Kazi Golam Hussain to execute such a contract. Exbt.6 is a letter issued by the Chairman of the defendant No.1-Company to the Managing Director, Uttara Bank dated 16.09.1990. This letter shows that Kazi Golam Hussain was chairman of the Company. For this reason, there is nothing left for the appellate Court that could require them further evidence to adjudge whether Kazi Golam Hussain was chairman of the company and that’s why the High Court Division did not feel the necessity of any additional evidence and therefore there was no illegality in rejecting the prayer for adducing evidence by the defendants at the appellate stage.          . . . (21)
 
Code of Civil Procedure (V of 1908)
Order VII, Rule 1
The submissions made by the learned Advocate for the defendants-petitioners or the defendants case as narrated in the written statement not being a legal piece of evidence cannot be considered by the trial Court unless it is supported by both oral and documentary evidence adduced on behalf of the defendants-petitioners. We find that in the instant case, plaintiffs-respondents having proved their case by adducing both oral and documentary evidence which went unchallenged because of non-examination of any witness on behalf of the defendants.                 . . . (23)
 
Kalyan Singh Chouhan –Vs- C.P. Joshi, AIR 2011 SC 1127; Sarup Gupta (dead) by L.Rs. –Vs- Bishun Narain Inter College & Ors, AIR 1987 SC 1242; Bachhaj Nahar –Vs- Nilima Mandal & Ors., AIR 2009 SC 1103; Krishna Banik & Ors –Vs- Kailash Chandra Saha & Ors, 36 DLR (AD) 220; Muhammad Siddiq Muhammad Umar –Vs- Australisia Bank Ltd., PLD 1966 SC 684; Arjan Singh –Vs- Kartar Singh and Others, 1951 AIR SC 193; Syed Abdul Khader –Vs- Rami Reddy & Ors, AIR 1979 SC 553 and Bangladesh –Vs- Mrs. Noorjahan Khan and others, 8 BLT (AD) 1 ref.
 
For the Petitioners: Mr. Abdul Wadud Bhuiyan, Senior Advocate, instructed by Mr. Mohd. Nawab Ali, Advocate-on-Record.
For the Respondent No. 2 : Dr. M. Zahir, Senior Advocate with Mr. Mahbubey Alam, Senior Advocate and Mr. Abdur Razzaque Khan, Senior Advocate, instructed by Mr. Md. Taufique Hossain, Advocate-on-Record.
For the Respondent Nos. 1 & 3-10: None Represented.

CIVIL PETITION FOR  LEAVE TO APPEAL  No. 2520 OF 2010
 
JUDGMENT
 
Md. Muzammel Hossain, J:

This petition for leave to appeal under Article 103 of the Constitution of People’s Republic of Bangladesh is directed against the judgment and decree dated 31.05.2010 passed by the High Court Division in F.A. No.216 of 2007 allowing the appeal and setting aside the judgment and decree dated 19.06.2007 passed by the learned Joint District Judge and Arbitration Court, Dhaka in Title Suit No.102 of 2004 dismissing the suit.
 
The present respondent Nos.1-6 as plaintiffs filed Title Suit No.119 of 2002 in the 4th Court of Joint District Judge, Dhaka for Specific Performance of Contract in respect of the suit property which was subsequently transferred to the Court of Joint District Judge, Arbitration Court, Dhaka and renumbered as Title Suit No.102 of 2004. In the plaint the plaintiffs stated, interalia, that the defendant No.1-petitioner No.1 being a private limited company got allotment of the scheduled property on 30.07.1985 and as per Board Resolution of the Company one Kazi Golam Hussain being the Chairman of the company on 19.03.1990 entered into an agreement for sale of the said property with Alhaj Mansur Rahman for Tk.35,40,000/-. Thereafter Alhaj Mansur Rahman paid Tk.18.50 lacs through cheques as earnest money and possession of the property was delivered to him with a condition that outstanding dues of Tk.11.00 lacs out of the total consideration money be paid to RAJUK by him for which Tk.11 lacs would be excluded from total consideration money and the defendant No.1 would execute the deed receiving the balance consideration money of Tk.5 lacs. The price was re-fixed at Tk.33.00 lacs out of which Tk.19.00 lacs was already paid by the plaintiff Mansur Rahman to the defendant and the outstanding amount of Tk.14,29,373/- was paid by Mansur Rahman to the RAJUK. The defendant Nos.1 and 2 and Kazi Golam Hussain executed a security bond on 18.03.1992 admitting the agreement. Kazi Golam Hussain died leaving behind defendant Nos.2-4 as his heirs who are all Directors of the defendant No.1-company. The plaintiffs-respondents requested the defendants to execute and register the deed but they refused to execute and register the deed of sale on 30.03.2002 and hence the suit for Specific Performance of Contract.
 
The defendant Nos.1-2-petitioners contested the suit denying the statements made in the plaint stating, interalia, that as per Memorandum and Articles of Association of the company there is no post of Chairman of the defendant No.1-petitioner-company rather there is a post of Managing Director; that the defendant No.2 is the Managing Director of the company having overall supervision and control over the company. Kazi Golam Hussain was the father of the defendant No.2 who at the relevant time used to serve in the Investment Board of Bangladesh as a Director and as such he was neither Chairman nor Director nor anybody in the said company and there is no such expression in the company law, namely, "Authority". In order to grab the property the predecessor of the plaintiffs-respondents, Mansur Rahman, managed to obtain an unregistered deed of agreement executed by Kazi Golam Hussain alleging that he was the Chairman of the M/S Hussain Fabrics Ltd. although Kazi Golam Hussain had no authority to deal with the matter as well as to transfer or enter into any contract with anybody for any share or portion of M/S Hussain Fabrics Ltd. and the alleged contract is not a contract in the eye of law and as such the same is not legally enforceable. On 18.03.1992 the plaintiff No.3 with a group of miscreants came to the residence of the defendants and took their signature in a security bond under threat of gun point. Thereafter the plaintiff, not being the owner and possessor and having no right, title, interest and possession over the assets of Hussain Fabrics Ltd. got 10 Ansars posted therein. Some unscrupulous persons had tried to dispossess the defendants from the land allotted to the defendant No.1-the company and finding no other way the defendant No.2 filed a petition case bearing No.5877 of 2001 before the Chief Metropolitan Magistrate, Dhaka alleging, interalia, that there is a possibility to break the peace and tranquility and prayed for necessary order and the learned Magistrate passed an order of status quo. Shyampur Police Station Case No.32(12)2001 was started by the plaintiffs wherein the defendant Nos.2-4 were falsely implicated. The plaintiff No.2 with the help of police raided the said land and also arrested the employees of the defendant No.2. Finding no other alternative the defendant No.2 filed Writ Petition No.242 of 2002 and got an order of injunction against the plaintiff. The plaintiff No.2-Mahbubur Rahman with the help of bad elements, police force and Ansars entered into the industry of M/S Hussain Fabrics Ltd and looted away valuable goods and machineries violating the order of injunction of the High Court Division and the order of maintaining status quo granted by the Chief Metropolitan Magistrate, Dhaka and thereafter, the defendant No.2 filed Contempt Petition being No.9 of 2002 in the High Court Division wherein a Rule Nisi has been issued. One Mahamuda Begum also filed Petition Case No. 255 of 2002 in the Court of the Metropolitan Magistrate, Dhaka against Mahbubur Rahman and others. The defendant stated that there was no contract for sale of the suit property and as such the suit is liable to be dismissed.
 
However, the defendants did not adduce any evidence, oral or documentary, before the trial Court. The learned Joint District Judge dismissed the suit on contest against the defendant Nos.1 and 2 and exparte against the rest by the judgment and decree dated 19.06.2007.
 
Being aggrieved by the aforesaid judgment and decree dated 19.06.2007 the plaintiff preferred an appeal being First Appeal No.216 of 2007 before the High Court Division.
 
While the appeal was pending, the defendant-respondents-petitioners filed an application under Order 41 Rule 27 of the Code of Civil Procedure for adducing additional evidence on the ground that the plaintiffs filed various false cases against the Managing Director of Hussain Fabrics Limited and against Darwan, Guard and other employees of the company and out of fear of the plaintiffs, the defendant could not attend the Court and could not examine their witnesses, produce documents in the Court, mark the same as exhibits and also could not cross-examined two witnesses out of four produced by the plaintiffs. A Division Bench of the High Court Division kept the application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 pending for consideration at the time of hearing of the appeal.
 
Subsequently, a Division Bench of the High Court Division by the judgment and decree dated 31.05.2010 allowed the appeal being No.F.A. No.216 of 2007 upon setting aside the judgment and decree passed by the Trial Court and decreed the suit in favour of the plaintiffs-respondents without considering the relevant papers and documents as well as the application submitted by the defendants-petitioners under Order 41 Rule 27 of the Code of Civil Procedure for additional evidence on the grounds stated therein.
 
Thereafter the defendants-petitioners being aggrieved by the impugned judgment and decree passed by the High Court Division preferred the instant Civil Petition for Leave to Appeal before this Division.
 
Mr. Abdul Wadud Bhuiyan, the learned Advocate appearing for the defendants-petitioners submits that the High Court Division failed to consider that in the Memorandum and Articles of Association, the name of Kazi Golam Hussain does not appear as Chairman of Hussain Fabrics Limited and as such said Kazi Golam Hussain has no authority to enter into any agreement for sale on behalf of Hussain Fabrics Limited. He submits that admittedly series of litigations have been going on between the parties and because of threat by the plaintiffs-respondents, the defendants-petitioners failed to adduce both oral and documentary evidence before the Trial Court and get them marked as exhibits and that considering the above facts and circumstances an opportunity ought to have been given to the defendants-petitioners to adduce additional evidence but the High Court Division having failed to do so committed an illegality and as such the impugned judgment and decree is liable to be set aside. He submits that Kazi Golam Hussain was the Director of the Investment Board and that he could not be the Director/ Chairman of Hussain Fabrics Limited and as such he has no authority to enter into an agreement for sale in respect of the property of Hussain Fabrics Limited but the High Court Division decreed the suit by ignoring the same and as such the impugned judgment and decree is liable to be set aside. He then submits that the alleged deed of agreement dated 19.03.1990 alleging delivery of possession is totally false. He contends that had the agreement dated 19.03.1990 been genuine, then there would have been no need of any Security Bond on 18.03.1992 from the plaintiffs-respondents for Holding No.14, Satish Sarker Road, Gandaria, Dhaka but the High Court Division totally failed to consider the same and illegally allowed the appeal. He contends that the observation made by the Division Bench of the High Court Division that the defendants-petitioners are required to prove the facts that Kazi Golam Hossain was not the Chairman is totally misleading inasmuch as the plaintiffs-respondents must prove their own case and the weakness of the defendants-petitioners will not in any way improve the case of the plaintiffs-respondents and that the defendants-petitioners filed an application under order 41 rule 27 of the Code of Civil Procedure along with important documents, namely, Memorandum and Articles of Association to show that Kazi Golam Hossain was not the Chairman and some other papers to prove that the defendants were prevented by sufficient cause from attending the Court but the High Court Division did not accept those documents and delivered the judgment without considering the same and wrongly shifted the burden of proof on the defendants-petitioners and as such the judgment and decree is liable to be set aside. He then submits that the High Court Division illegally rejected the application under Order 41 Rule 27 of the Code of Civil Procedure, inasmuch, the High Court Division found difficulties for the defendants-petitioners to attend the Court along with witnesses and as such the High Court Division ought to have considered the same and allowed the application for additional evidence and should have sent back the case on remand giving an opportunity to the defendants-petitioners for proving their case as the High Court Division came to the finding that the defendants-petitioners failed to prove that Kazi Golam Hossain was not the Chairman, and as such the impugned judgment and decree is liable to be set aside.
 
Dr. M. Zahir, the learned Advocate appearing for the plaintiff-respondent No.2 submits that there is no illegality in the impugned judgment and order passed by the High Court Division and as such the leave petition is liable to be dismissed. He submits that the plaintiffs-respondents by adducing evidence and examining natural witnesses proved the original documents and the case. Dr. Zahir then submits that since the defendants-petitioners failed to produce the Memorandum and Articles of Association of the Company to prove the fact that the defendants’ predecessor was actually not the Chairman of the defendant No.1-company, the bainapatra can be treated as proper document to be enforceable in law. Dr. Zahir contends that in order to prove that Kazi Golam Hossain was not Chairman of the defendant No.1-company the evidence should have been laid on behalf of the defendants-petitioners to that effect. Dr. Zahir submits that the High Court Division rightly found that the learned Subordinate Judge misread the evidence adduced on behalf of the plaintiffs-respondents and thereby wrongly held that the plaintiff is to prove that Kazi Golam Hossain, the predecessor of the defendant-petitioner Nos.2 and 3 was the Chariman of the defendant No.1-company as the plaintiffs did not produce the Memorandum and the Articles of Association of the defendant No.1-company. Dr. Zahir on behalf of the plaintiffs-respondents submits that the High Court Division having considered the provisions of section 102 of the Evidence Act to the effect that a person who alleges certain illegality or challenges the correctness of certain fact must prove the allegation of the same or correctness of the said fact and that to prove that Kazi Golam Hossain was not Chairman of the defendant No.1-company the onus squarely lies on the defendant No.1-company to discharge such onus to that effect as they raised the question and as such the High Court Division rightly held that the defendant No.1-company ought to have led evidence to the effect that Kazi Golam Hossain was not Chairman of the defendant No.1-company who was required to submit the company’s documents including Memorandum and Articles of Association of the defendant No.1-company. Dr. Zahir further submits that the High Court Division rightly found that the plaintiffs-respondents proved their possession on the suit land by examining witnesses and they proved the execution of bainapatro by both oral and documentary evidence and that they were inducted into possession pursuant to the bainapatra executed by the defendants. He also submits that the High Court Division having considered material evidence on record found that the learned Judge of the trial court correctly found the possession of the plaintiffs-respondents in the suit land but the trial Court wrongly held that the plaintiffs-respondents got possession through muscleman without the basis of any material evidence on record as the defendants did not examine any witness. Dr. Zahir also asserts that the High Court Division on the question of additional evidence rightly referred to the provision of Order 41 Rule 27 of the Code of Civil Procedure which contemplates two preconditions in accepting the additional evidence, namely, where the trial court refused to admit evidence which ought to have been admitted or the appellate court requires the additional evidence to pronounce judgment or for any other substantial cause. He finally asserts that it is to be seen whether the required documents were in possession of the parties when the trial was held and that the defendants-petitioners at the appellate stage admitted that the said documents were very much in their custody but they did not produce before the trial Court and as such they should not be allowed to adduce additional evidence to fill up the lacuna by sending back the case on remand to the trial Court and as such the High Court Division rightly allowed the appeal in decreeing the suit.
 
We have perused the Civil Petition for Leave to Appeal, impugned judgment and order passed by the High Court Division, the judgment and decree passed by the learned Joint District Judge and other materials on record. It appears that in order to prove their case the plaintiffs-respondents examined four witnesses and submitted to the trial Court a number of documents which were formally exhibited. These documents include General Power of Attorney (Exbt.1), photocopy of allotment letter dated 30.07.1985 (Exbt.2), original bainapatra dated 19.03.1990 (Exbt.3), original receipt of money issued by City Bank dated 26.08.1993 (Exbt.4), original paper of handing over machineries and others (Exbt.5), letter issued by chairman of defendant No.1 to the Managing Director, Uttara Bank dated 16.09.1990 (Exbt.6), pay orders, cheques and chalans for payment of Tk.14,29,303/-(Exbt.8 series), original security bond (Exbt.9) original lease deed (Exbt.10), letters issued by defendant No.2 to Alhaj Monsurur Rahman (Exbt.11 series), complaint petition case No.5877 of 2001 (Exbt.14), order of appointment of 10 Ansars with payment receipt (Exbt.15 series), plaint of Title Suit No.1 of 1994 in the Court of 4th Artho Rin Adalat (Exbt.17), Vokalatnama by the chairman (Exbt.18) and statement filed by the Chairman of defendant No.1 in Title Suit No.1 of 1994 (Exbt.19) and other relevant documents. The plaintiffs-respondents before the trial Court by adducing both oral and documentary evidence on record proved that there was an agreement for sale of the suit land on 19.03.1990 by the defendants-petitioners to the plaintiffs-respondents at a consideration of Tk. 34,54,300/- and the plaintiffs paid earnest money of Tk.18,50,000/- and the bainapatra was executed on the same date and the possession was delivered to the plaintiffs-respondents by the defendant No.1-petitioner in presence of witnesses. The plaintiffs-respondents also proved their case by adducing evidence to the effect that the Managing Director of Uttara Bank in his letter dated 16.09.1990 (Exbt.6) admitted the agreement for sale dated 19.03.1990 and also admitted their possession. The defendants-petitioners in their written statement admitted possession of the plaintiffs-respondents in the suit land but did not adduce any evidence in support of the written statement to that effect. It appears that in this particular case the defendants-petitioners did neither examine any witness nor submit any document before the trial Court in support of their case. The learned Advocate for the defendants-petitioners only made submissions relying on the written statement which has no legal basis in the eye of law because pleading of the defendants is not a legal piece of evidence and as such on the basis of the pleading of the defendants-petitioners their case could not be proved before the Trial Court.
 
What is the true import of “pleadings” has been discussed by the Supreme Court of India in Kalyan Singh Chouhan –Vs- C.P. Joshi, AIR 2011 SC 1127 in the following terms:

“Pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, the pleadings are more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is settled legal proposition that “as a rule relief not founded on the pleadings should not be granted.” Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ.”
 
In Ram Sarup Gupta (dead) by L.Rs. –Vs- Bishun Narain Inter College & Ors, AIR 1987 SC 1242 it was held as under:

“It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet.”
 
In Bachhaj Nahar –Vs- Nilima Mandal & Ors., AIR 2009 SC 1103, it was held as under:

“The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take.
The object of issues is to identify from the pleadings the question or points required to be decided by the courts so as to enable parties to let in evidence thereon. .......... it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief.”
 
The cumulative effect of the above mentioned decisions is that pleadings and evidence are completely two different things. Pleadings prepare the suit for contest and evidence adduced in the case in line with the claims and denials stated in pleadings, actually contest the suit. In pleadings facts are to be described and relieves are to be sought which will narrow the controversy between and among the parties concerned, and will inform each of them of the extent to which they need to adduce evidence in support of their respective claim to prove their case. Where there is no pleading, evidence to that effect can not be considered and where there is no evidence, pleadings can not prove the fact and claim.
 
Defendant-petitioner Nos.2 and 3 did not adduce any evidence whether oral or documentary, before the trial court but their learned Counsel cross-examined two of the witnesses for the plaintiffs-respondents and argued before the Court. True effect of this cross-examination is that if it is able to shake the credibility of the witnesses examined on behalf of the plaintiffs-respondents, it can create a doubt about the case of the plaintiffs-respondents; but it can not prove the case of the defendants-petitioners.
 
However, at a belated stage when appeal was filed against the decision of the trial Court the defendants-petitioners filed an application for adducing additional evidence by submitting Articles of Association and Memorandum of the defendant No.1-company and other documents to show that Kazi Golam Hussain was not the chairman of the company at the relevant time and therefore he did not have any authority to transfer the suit property. Additional evidence can be adduced under Order 41, rule 27 of the Code of Civil Procedure,1908. But there are certain preconditions that are to be fulfilled to enable a party to adduce additional evidence. This Division in the case of Sunil Krishna Banik & Ors –Vs- Kailash Chandra Saha & Ors, 36 DLR (AD) 220 held as under:

“Clause (b) of rule 27(1) appears to have conferred discretion on the Appellate Court to allow additional evidence in order “to enable it to pronounce judgment, or for any other substantial cause”. This discretion is not subject to any other limitation or restriction excepting what is indicated by the words used therein. To do justice is the special preserve or domain of a court of law and this has been stressed by the words used in clause (b) as aforesaid. Since the point raised by the appellants required the determination of the Court before pre-emption could be allowed, the expression of hesitation and refusal to admit the additional evidence does not seem to be justified. This may have occasioned failure of justice instead of doing it. Before judgment is pronounced by the Court there may be no harm if it considers a vital piece of evidence produced before it, though late, so that it may prevent an injustice being done. It is true that such admission should not be encouraged. Power to admit additional evidence should, therefore, be sparingly used.”
 
In the above quoted paragraph it has been clearly identified that for the ends of justice an Appellate Court can allow additional evidence to be adduced subject to the limitations or restrictions provided in the rule 27 of Order 41 of the Code of Civil Procedure,1908 and such admission should not be encouraged and power to admit additional evidence should be sparingly used. What the limitations are-have also been pointed out in the same judgment referring to a decision of the Supreme Court of Pakistan in Muhammad Siddiq Muhammad Umar –Vs- Australisia Bank Ltd., PLD 1966 SC 684, wherein it was observed:

“The rule merely prescribes that the requirement must be a genuine one and that the need for the additional evidence must be felt by the Court itself after it has examined the evidence already on the record and come to the conclusion that there is apparent some inherent lacuna or defect which hinders the due administration of justice. If it comes to this conclusion, then it has the power to call for additional evidence subject to the condition that it must record its reasons for doing so, in order that a higher Court may be able to ascertain that the need was not merely imaginary but based upon factual grounds.”
 
The Supreme Court of India in Arjan Singh –Vs- Kartar Singh and Others, 1951 AIR SC 193 held as under:

“The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in O. 41, R. 27, Civil P. C. If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent. Under O. 41, R. 27, it is the appellate Court that must require the evidence to enable it to pronounce judgment. As laid down by the P.C. in the well-known case of Kessowji v. G. I. P. Railway, 34 I.A. 115: (31 Bom. 381 (P.C.)), “the legitimate occasion for the appln. of the present rule is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it.”, and they reiterated this view in stronger terms even in the later case of Parsotim v. Lal Mohan 58 I.A. 254: (A.I.R. (18) 1931 P.C. 143). The true test, therefore, is whether the appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.”
 
The Supreme Court of India in Syed Abdul Khader vs. Rami Reddy & Ors, AIR 1979 SC 553 explaining the scope of allowing additional evidence observed:

“Order 41, Rule 27, C.P.C. enables the appellate Court to admit additional evidence in the circumstances or situation therein mentioned one such being where 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. By a catena of decisions of this Court, it is well established that Order 41, Rule 27, C.P.C. does not confer a right on the party to produce additional evidence. But if the Court hearing the action requires any document so as to enable it to pronounce judgment, it has the jurisdiction to permit additional evidence to be produced.”
 
From the above discussions it is abundantly clear that Order 41, Rule 27 of the C.P.C. does not confer any right to the party to adduce additional evidence. The need for additional evidence must be felt by the Court itself. When evidence was not adduced by the defendant at the trial stages, at the appellate stage he cannot claim as of his right, an opportunity to adduce evidence. Now the question is whether the High Court Division committed an error of law resulting an error in the decision by rejecting the application for adducing additional evidence occasioning failure of justice. In other words whether the plaintiffs failed to prove their case or by cross-examining the witnesses of the plaintiffs and by arguing at the argument stage of the case learned Counsel of the defendants was able to create any shadow of doubt against the claim of the plaintiffs so as to require the court evidence at appellate stage as applied by the defendants. This is a suit for specific performance of contract and this Division in the case of Government of Bangladesh –Vs- Mrs. Noorjahan Khan and others, 8 BLT (AD) 1 held that in a suit for specific performance of contract the genuineness of the agreement for sale is the prime consideration. The genuineness of the agreement for sale could not be questioned by the defendants, what they did question was the authority and capacity of Kazi Golam Hussain to execute such a contract. The defendant Nos.2 and 3 did not adduce evidence to prove that Kazi Golam Hussain was not the Chairman of the company at the relevant time. It is to be seen whether the plaintiffs were able to prove that Kazi Golam Hussain was the chairman of the company and he did hold the capacity and authority to enter into the contract on behalf of the company. Exbt.6 is a letter issued by the Chairman of the defendant No.1-Company to the Managing Director, Uttara Bank dated 16.09.1990. This letter shows that Kazi Golam Hussain was chairman of the Company. For this reason, there is nothing left for the appellate Court that could require them further evidence to adjudge whether Kazi Golam Hussain was chairman of the company and that’s why the High Court Division did not feel the necessity of any additional evidence and therefore there was no illegality in rejecting the prayer for adducing evidence by the defendants at the appellate stage.
 
As to the argument pressed by the learned Advocate for the defendants-petitioners to the effect that they were prevented by sufficient cause from attending court at the trial stage, as they were threatened by the plaintiffs-respondents and as such the High Court Division ought to have allowed evidence at the appellate stage, we are of the view that threat by the plaintiffs-respondents cannot be a sufficient ground for not examining witnesses or for not adducing documentary evidence before the trial Court. Because, if threat had been so predominant, the defendants-petitioners would have filed a case or G.D. entry and would not have been able to file written statement and subsequently contest the suit.
 
We have seen that before the trial Court the plaintiffs-respondents by adducing both oral and documentary evidence proved the agreement for sale, payment of earnest money, delivery of possession and their continuous possession in the suit land and finally defendants’ refusal to execute and register the deed of sale. But the defendants without adducing any evidence or examining any witness in the trial court in support of their case could not dislodge the plaintiffs’ contention. The submissions made by the learned Advocate for the defendants-petitioners or the defendants case as narrated in the written statement not being a legal piece of evidence cannot be considered by the trial Court unless it is supported by both oral and documentary evidence adduced on behalf of the defendants-petitioners. We find that in the instant case, plaintiffs-respondents having proved their case by adducing both oral and documentary evidence which went unchallenged because of non-examination of any witness on behalf of the defendants, inasmuch as, in the eye of law there is no legal evidence before the trial Court on behalf of the defendants-petitioners. In other words, the plaintiffs-respondents’ case was proved unchallenged. As regards the question of additional evidence, we find that the High Court Division rightly dismissed the defendants-petitioners prayer for allowing additional evidence. For the aforesaid reasons, we do not find any illegality in the impugned judgment and decree dated 31.05.2010 passed by the High Court Division in F.A. No. 216 of 2007. In consideration thereof, we do not find any substance in the submissions of the learned Advocate for the petitioners.
 
Accordingly, the leave petition is dismissed.
 
Ed.
 
Reference: 4 LNJ AD (2015) 114.