Case No: Civil Appeal No. 10 of 1995
Judge: Bimalendu Bikash Roy Choudhury,
Court: Appellate Division ,,
Advocate: Mr. Shaheed Alam,Mr. Akram Hossain Amin,,
Citation: II ADC (2005) 195
Case Year: 2005
Appellant: Mohammad Ali Akhand
Respondent: Bahatan Nessa Bewa and others
Subject: Procedural Law,
Delivery Date: 1997-1-29
ATM Afzal CJ
Latifur Rahman J
Mohammad Abdur Rouf J
Rimalendu Bikash Roy Choudhury J
Mohammad Ali Akhand
Bahatan Nessa Bewa and others
January 29, 1997
Code of Civil Procedure, 1908
Order 41, Rule 27(1)
It is clear that this provision can be exercised only where the court requires further evidence for one of the two causes specified in the rule. None of these requisites was fulfilled in this case. To permit the defendants to adduce additional evidence at the appellate stage would only amount to giving them an opportunity to fish out evidence in order to prove their case and make up the lacuna which, at the present moment, exists. In our opinion the lower appellate court did not commit any error of law in rejecting the prayer of additional evidence in the facts and circumstances of the case. It was, therefore, not proper for High Court Division to interfere with the concurrent decision of the two courts below and send back the case to the lower appellate court for disposal of the appeal on merit. ….. (9)
Shahid Ahmed, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record - For the Appellant.
Akram Hossain Amin, Advocate-on-Record - For the Respondent.
Civil Appeal No. 10 of 1995
(From the Judgment and Order dated 28 August 1994 passed by the High Court Division in Civil Revision No. 8110 of 1991).
Bimalendu Bikash Roy Choudhury J.
This appeal by the plaintiff, following leave, is directed against an order of remand dated 28 August 1994 made by a single Bench of the High Court Division in Civil Revision No. 8110 of 1991 making the Rule absolute after setting aside the concurrent judgment and decree of the Courts below in Other Class Suit No. 115 of 1984 instituted in the court of Assistant Judge, Kazipur within the district of Sirajganj.
2. The plaintiff brought the suit against several defendants to have his title declared in respect of certain land measuring 2.59 acres fully described in the schedule to the plaint. This land originally belonged to one Sarojini Chowdhurani in Khas. It is the case of the plaintiff that between 1331 B.S, and 1332 B.S. he took settlement of the land from the said owner on different dates paying usual nazar and rents, but Harop Ali, predecessor-in-interest of the defendant Nos. 1-8 who had no interest therein managed to get his name recorded in the relevant S.A. Khatians and this wrong recording had cast a cloud over his title.
3. The defence set up by the contesting defendant Nos. 1-8, is that they are the owners of the disputed property which was correctly recorded in the S.A. Khatians. Their definite case is to the following effect. Sarojini Chowdhurani settled the disputed plot No. 1165 comprising. 32 acre of land and also. 25 acre out of. 53 acre of land of Plot No. 925 with Harop Ali. Subsequently she settled the remainder of the suit land with Mofatullah Akhand, father of the plaintiff and Harop Ali. The settlements were done on the basis of amalnamas. Mohatullah was survived by his two sons Mohammad Ali and Harop Ali and one daughter zelaton. Accordingly they became the owners of the disputed land by way of inheritance and have been in possession of the same. Zelaton's name was not recorded in the S.A. Khatian as she used to live with her husband.
4. The trial court decreed the suit upon findings that the plaintiff was able to prove his title and possession and that the defendants could not prove any.
5. The defendants then took an appeal being Other Class Appeal No. 167 of 1985 to the District Judge, Sirajgonj. During the pendency of the appeal the said defendatns filed two pieces of amalnauia and also thirteen pieces of rent receipts to show their alleged settlement in favour of Mofatullah and Harop Ali and made an application for acceptance of the said documents as additional evidence. The learned District Judge rejected the prayer for acceptance of the additional evidence on the grounds that the documents appeared spurious to him and also that the defendants could not prove satisfactory custody of the same and accordingly upheld the decision of the trial court.
6. The unsuccessful defendants thereafter moved the High Court Division with a revisional application marked as Civil Revision No. 8110 of 1991 calling in question the propriety of the decision of the appellate court. After hearing the parties a learned Single Judge of the High Court Division took law in not allowing the defendants to adduce additional evidence and made the following order:
'In the result, this Rule is made absolute without any order as to costs. The appeal is sent back to the appellate court with direction that it will give opportunity to the appellants to prove their documents through additional evidence, filed by them by a firisti and supported by an affidavit and thereafter to decide the appeal in merits expeditiously. The judgment and decrees of both the courts below are hereby set aside.'
7. It appears that the lower appellate court which was the final court of fact had considered the nature of the documents which were produced by the defendants for the first time before it. The said court, in its discretion reasonably exercised, rejected the prayer for admitting the documents as additional evidence.
8. The power of the appellate court to admit further evidence is contained in Order 41, rule 27(1) of the Code of Civil Procedure, which runs thus:
“27. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -
the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
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, the Appellate Court, may allow such evidence or document to be produced, or witness to be examined.”
9. It is clear that this power can be exercised only where the court requires further evidence for one of the two causes specified in the rule. None of these requisites was fulfilled in this case. To permit the defendants to adduce additional evidence at the appellate stage would only amount to giving them an opportunity to fish out evidence in order to prove their case and make up the lacuna which, at the present moment, exists. In our opinion the lower appellate court did not commit any error of law in rejecting the prayer for additional evidence in the facts and circumstances of the case. It was, therefore, not proper for High Court Division to interfere with the concurrent decision of the two courts below and send back the case to the lower appellate court for disposal of the appeal on merit.
10. We are at a loss to see how the High Court Division could set aside both the decrees of the courts below and at the same time send back the appeal on remand to the appellate court.
11. This appeal is, therefore, allowed without any order as to costs. The order of remand of the High Court Division is set aside and the judgment and decree of the lower appellate court are restored.