M.Y. Eqbal, Acting C.J.
1. This application under Article 227 of the Constitution of India by the defendants-petitioners is directed against the order dated 03.3.2008 passed by Addl. District Judge-III, Jamshedpur in Eviction Appeal No. 09 of 2003 whereby he has rejected the petition filed by the petitioners under Order XLI, Rule 27 of the Code of Civil Procedure.
2. The facts of the case lie in a narrow compass:
The plaintiff-respondents filed Eviction Suit No. 32 of 1994 for a decree for eviction of the defendants from the suit premises. The plaintiffs case is that he purchased the suit property by virtue of a registered sale deed dated 12.7.1993 and became the owner of the said property. The defendants-petitioners contested the suit by filing written statement denying and disputing the relationship of landlord and tenant and claimed title in themselves. The defendants' case is that a separate suit was filed by them being Title Suit No. 49 of 1994 against the plaintiff for declaration that the alleged sale deed dated 12.7.1993 is null and void. It appears that the eviction suit filed by the plaintiff-respondent was decreed in terms of judgment dated 08.5.1997. Aggrieved by the said judgment and decree, defendants-petitioners filed eviction appeal being Eviction Appeal No. 09 of 2003. During the pendency of the Eviction Appeal, the aforementioned Title Suit No. 49 of 1994 was dismissed vide judgment dated 12.6.1998. Petitioners, aggrieved by the said judgment, preferred Title Appeal No. 49 of 2003 which was eventually allowed by the appellate Court in terms of judgment dated 08.10.2007 and the sale deed dated 12.7.1993 has been declared to be null and void. Under the aforesaid circumstances, the petitioners filed application under Order XLI, Rule 27 C.P.C in Eviction Appeal No. 09 of 2003 for adducing the certified copy of the judgment and decree passed in Title Appeal No. 49 of 2003 by way of addition evidence. The Court of Appeal below rejected the said application on the ground, inter alia, that in the eviction suit, the defence of the defendants-petitioners was struck off and consequently, the defendants had not adduced any evidence either oral or documentary, before the trial Court. According to the Court of Appeal below, at an appellate stage, the defendants-appellants cannot be allowed to adduce judgment and decree passed in Title Appeal No. 49 of 2003 as an additional evidence.
3. Heard the learned Counsel appearing for the parties.
4. The facts not in dispute are that the plaintiff-respondents alleged to have purchased the suit premises from the petitioners. The alleged sale deed was challenged by the petitioners by filing Title Suit No. 49 of 1994. While the Eviction Appeal was pending, the suit of the petitioners was eventually decreed in Title Appeal No. 49 of 2003 and the sale deed, on the basis of which the plaintiff-respondent claimed ownership, was declared null and void. After the said judgment and decree, the petitioners filed application for adducing the said judgment and decree as an additional evidence. The Court of Appeal below rejected the application holding that the provisions contained in Order XLI, Rule 27 CPC is not applicable and, therefore, the petitioners-appellants cannot be allowed to adduce the said judgment and decree by way of additional evidence. Order XLI, Rule 27 CPC reads as under:
Order 41, Rule 27. 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 not withstanding 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 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,
the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, shall record the reason for its admission.
5. From perusal of the aforesaid provision, it is manifestly clear that application for production of additional evidence in appeal can be allowed only when the conditions mentioned therein are fulfilled.
6. In the case of Arjan Singh v. Kartar Singh and Ors. : [1951]2SCR258 , the Supreme Court observed:
7. It was strenuously argued by the learned Counsel for the appellant that it was not open to the High Court to interfere with the discretion exercised by the District Judge in allowing additional evidence to be adduced and that even assuming that there was an erroneous finding of fact, it must stand final as a second appeal can be entertained only on the specific grounds mentioned in Section 100 of the Civil Procedure Code. There is, however, a fallacy underlying this argument. The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in Order 41, Rule 27, of the Civil Procedure Code. 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 Order 41, Rule 27, it is the appellate court that must require the evidence to enable it to pronounce judgment. As laid down by the Privy Council in the well-known case of Kessowji Issur v. G.I.P. Railway 34 L.A. 115 : 31 Bom. 381 (P.C.), 'the legitimate occasion for the application 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 55 I.A. 254 : . 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.
7. It is well settled principle of law that in a suit for eviction, if the defendant-tenant fails to comply the direction for deposit of rent in compliance of order passed under 15 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982, the defence of the defendant quo tenant is struck off. Meaning thereby, the defendant-tenant cannot defend the suit for eviction as a tenant, but he can defend the action on the ground that he is not a tenant and can establish title in himself. In other words, in a suit for eviction, if the tenant disputes the relationship of landlord and tenant and claims title himself, he can adduce evidence to that effect.
8. So far scope and application of Order XLI, Rule 27 of the Code of Civil Procedure is concerned, it is manifestly clear from the provisions that additional evidence can be allowed if the applicant satisfies the Court about the grounds mentioned therein. In addition to that, additional evidence can also be allowed for any other substantial cause which will include the question of doing due, proper and substantial justice.
9. In the instant case, since the beginning, the defendants seriously disputed the claim of ownership of the suit property on the ground that the sale deed obtained by the plaintiff is null and void. When the eviction appeal was pending, the suit filed by petitioner was eventually decreed in appeal and the sale deed in question was declared null and void. The judgment and decree passed in the said suit, in my opinion, can be allowed as an additional evidence for effective determination of the question raised in this suit and for doing substantial justice. The Court of Appeal below has not appreciated the case from this angle. The appellate Court will be able to pronounce judgment and to do substantial justice only after taking into consideration the additional evidence which the petitioner sought to adduce, i.e. judgment and decree passed in appeal wherein the sale deed on the basis of which, the plaintiff-respondent claims title and filed eviction suit, was declared null and void. The impugned order, therefore, cannot be sustained in law.
For the reasons aforesaid, this application is allowed and the impugned order is set aside.