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In the High Court at Calcutta

Civil Revisional Jurisdication
Appellate Side

Present:-

The Hon’ble Justice Subhasis Dasgupta.

CO. No. 2856 of 2018

Smt. Kanika Ghosh

Vs.
New Garia Development Co-operative Housing Society Limited.

For the petitioner : Mr. Kamal Krishna Pathak, Adv.

Mr. Souvik Maji, Adv.

For the Opposite Party : Mr. Malay Kumar Roy Adv.

Judgment : 03.07.2019

Subhasis Dasgupta, J:-

The judgment and order dated 24th May, 2018 passed by the learned West

Bengal Co-operative Tribunal, Kolkata in Appeal No. 28 of 2011 allowing appeal,

and thereby remanding the case back to the learned Arbitrator upon setting aside

the award with a direction to rehear the case is a subject of challenge in this

revisional application under Article 227 of the Constitution.

Learned advocate for the petitioner submitted that learned Tribunal

illegally exercised its authority in remanding the case back to the Arbitrator after

setting aside the award with a direction to rehear the case afresh without

understanding and/or addressing the merits of the appeal in the instant case,
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where award was lawfully passed by the Arbitrator. Learned advocate for the

petitioner further submitted that while remanding the case back to the

Arbitrator, the learned Tribunal had improperly exercised its authority in

allowing petition, under Order 41 Rule 27 CPC, another petition filed by the op

/appellant praying for examination by hand writing expert of a signature of

petitioner forgetting the principles, to be strictly adhered to for allowing

application under Order 41 Rule 27 CPC. It was sought to be established by the

learned advocate for the petitioner that in spite of remaining in possession of the

document, being disputed by the petitioner, the alleged document could not be

furnished before the Arbitrator purposefully, and the same was produced before

the learned Tribunal by opposite party simply to frustrate the award, lawfully

recorded in this case by the Arbitrator. Learned advocate for the petitioner most

arduously submitted that the op/appellant proposing to adduce additional

evidence failed to establish the conditions, namely that notwithstanding the

exercise of due diligence, such evidence was not within his knowledge, or could

not, after the exercise of due diligence, be produced by him in the Trial Court,

and referring the provisions of the law, as incorporated in Clause (aa) of Sub Rule

(1) of Rule 27 Order 21, learned advocate for the petitioner endeavored to

establish that learned Tribunal most illegally allowed the petition under Order 41

Rule 27 CPC without fulfillment of the conditions, and more conspicuously

without addressing the point in the instant case as to whether op/appellant

despite being in possession of the document, why the same could not be

produced before the Arbitrator.

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Learned advocate for the opposite party submitted that for the adjudication

of the individual rights of the parties in the property in dispute, the learned

Tribunal felt the necessity of presence of some additional evidence in order to

arrive at just decision of this case. It was further submitted by the learned

advocate for the opposite party that when the learned Tribunal specifically

observed that the conveyance deed, dated 30.12.1987, the execution of which

being disputed by the petitioner, would be very much essential to come to a right

decision of this case, and also for effective and proper adjudication of the matter

in controversy between the parties, such findings of the learned Tribunal ought

not to be disturbed any more with the aid of authority available under Article 227

of the Constitution of India, as there was no error apparent in arriving at a such

finding, for the deed under reference being denied to have been executed by the

petitioner alleging putting her own signature. Alternatively it was proposed that

it was such a document, if allowed to be proved in evidence, after the signature of

the executent being examined with that of the admitted signature of petitioner by

hand writing expert, there is fair chance of being non-suited by the petitioner,

now suggesting sustainability of such award, as proposed by petitioner.

Before addressing the points, as raised in this case, some salient facts need

mentioning here for proper understanding of the issue now under reference. The

petitioner/plaintiff instituted a dispute case, when the learned Arbitrator passed

the award declaring that the petitioner’s land had been taken away by the

defendant/society for formation of Housing Society along with her original deed

by which the plaintiff had purchased the plot of land. There was further
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declaration in the award directing the opposite party/defendant/society to allot

plot of land in favour of the petitioner, as a share holder of the defendant/society

against her membership. An award of compensation was also recorded in the

award. The opposite party challenged the award by filing an appeal before the

learned Tribunal (being Appeal No. 28 of 2011). In the objections submitted by

the petitioner before the Appellate Forum, the petitioner conspicuously disputed

with the execution of deed dated 30.12.1987, sought to be proved by the opposite

party, taking aid of adducing additional evidence under Order 41 Rule 27 CPC.

The situation is thus conspicuous that the petitioner denied execution of a deed,

dated 30.12.1987 disputing with signature appearing thereon in the deed, now

under challenge. The deed under reference was allegedly executed by the

petitioner in favour of the opposite party/defendant/society. There is some

dispute between the parties with regard to the deposit of money spent for

development of the property of the defendant/society, and for such dispute

having turned into a critical shape, the land could not be transferred to the

petitioner even after furnishing share certificate to petitioner under

defendant/society.

It is true that at the time of arbitral proceeding, the deed under challenge

could not be produced by the opposite party/defendant, and the Arbitrator in the

absence of any contrary evidence being produced, proceeded to grant the award.

It is for the first time before the Appellate Forum, the defendant/op produced the

document under reference, which is admittedly denied by the petitioner disputing

with its execution.

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Learned advocate for the petitioner being inspired by the decision reported

in LAWS(SC) 2015 12 16 delivered in the case of Andismay Chettiar vs.

Subburaj Chettiar submitted that difficulty, if any faced by the learned

Tribunal in pronouncing the judgment, could not be allowed to be remedied by

allowing a petition under Order 41 Rule 27 CPC for adducing additional evidence.

Referring the applicability of such decision, learned advocate for the petitioner

sought to establish that in the case at hand neither the disputed document was

produced before the Arbitrator, when the award was passed, nor any application

was moved before the lower forum seeking scientific examination of the

document, for the petitioner having denied execution of such document, and

further when specific conditions incorporated in Order 41 Rule 27(1)(aa) CPC not

being fulfilled by the opposite party proposing to adduce additional avoidance,

the order of remand, without addressing the merits of the case, and thereby

allowing two petitions, one under Order 41 Rule 27 CPC, and another praying for

examination of hand writing expert was a clear abuse of the authority vested to

learned Tribunal.

In reply to the authority submitted by learned advocate for the petitioner,

argument was raised by learned advocate for opposite party that when learned

Tribunal came to positive finding that such proof of document was essential in

evidence for the effective adjudication of matter in controversy between the

parties, and such deed under challenge being relateble to the individual rights of

the parties in the property in dispute, the order of remand granting scope for

adducing additional evidence would not be doubted any more, because there had
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been a direction already for hearing afresh of the matter in dispute between the

parties, and in consequence thereof there would be no prejudice occasioned to

either of the parties to this case.

Law is very conspicuous on the subject as to when the Appellate Court

may allow production of additional evidence. Order 41 Rule 27 has three (3)

facets which may be reproduced as hereunder:

17.Production of additional evidence in Appellate Court. (1) The

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

(aa) the party seeking to produce additional evidence, establishes that within

his knowledge or could not, after the exercise of due diligence, be

produced by him at the time when the decree appealed against was

passed, or

(b) 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,

(2)…………..

The first part deals with the refusal to admit evidence by the Court

granting decree, which ought to have been admitted. The second component, as

enshrined in Clause (aa) under Order 41 Rule 27(1) CPC speaks for successful

compliance of the conditions mentioned therein that by the party proposing to

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produce additional evidence is under obligation to prove that notwithstanding the

exercise of due diligence, such evidence was not within his knowledge, or could

not, after the exercise of due diligence, be produced by him in the Trial Court.

The last limb pertaining to Order 41 Rule 27 CPC is relatable to Appellate Court,

which requires any document to be produced in order to enable to pronounce

judgment or for any other substantial causes. It is true that the opposite party

admittedly filed an application before the Appellate Court praying for adducing

additional evidence with the aid of order 41 Rule 27 CPC. It is also true that

some explanation was attempted to be offered as to why the document under

reference could not be produced despite exercise of due diligence. Even after

being aware of the averments contained in the petition under Order 41 Rule 27

CPC, the learned Tribunal proceeded to hold that conveyance deed, dated

30.12.1987 was very much essential to come to a right decision in this case, also

and for effective and proper adjudication of the matter in dispute between the

parties. When the Appellate Forum in exercise of its discretion passed an order

remanding the case back to the Arbitrator, and thereby allowing the prayer for

adducing additional evidence and also allowing the application praying for

examination by hand writing expert, such findings should not be ordinarily

disturbed, merely because of the failure of the defendant, proposing to adduce

additional evidence, regarding fulfillment of the conditions, as specifically

engrafted in (aa) of Rule 1, Order 41 Rule 27 CPC. The judgment by the learned

Tribunal after addressing the merits of the case could not be made possible for

the disputed document being not proved in evidence, and it was such a
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document which might create question as to the maintainability of the disputed

case, decided by the Arbitrator. It was thus rightly held by the learned Tribunal

that such disputed document, if allowed to be proved in evidence with the aid of

Order 41 Rule 27 that would help the decision making body in doing proper and

effective adjudication of the matter in controversy between the parties. The

provisions as engrafted in Order 41 Rule 27 (I)(b) having thus been applied over

the facts and circumstances by the learned Tribunal, which is independent in

nature, irrespective of the fulfillment of the conditions, enshrined in Clause (aa)

of Sub Rule 1 of Order 41 Rule 27 CPC, the order of remand giving a scope for

fresh hearing of the issue with the aid of additional evidence thus, cannot be

altered any more, when the discretion has been exercised reasonably and

judiciously.

The revisional appellation thus fails being without any merits.

With this observation the revisional application stands disposed of .

Urgent certified copy of this order and judgment, if applied for, be given to

the appearing parties as expeditiously as possible upon compliance with the all

necessary formalities.

(Subhasis Dasgupta, J.)