Judgment:
S.K. Mohanty, J.
1. This revision came up for hearing earlier before one of us (Honable Shri P. C. Misra, J). In course of hearing on the question of law, he took the view that there can be no limitation on the powers of the appellate Court to depute a survey-knowing commissioner for local investigation if it felt that in the interent of justice the same is necessary even in the trial Court had refused such a prayer. In his opinion, however, this view is not fully consistent with the view expressed by the then Chief Justice in Harmohan Mishra and Anr. v. Arnapurna Dibya and Ors. : 1987 Cuttack Law Times (Supplement) 344, and consequently referred the case to be decided by a larger Bench; This is had . the matter was put up-before us for hearing.
2. Facts essential for appreciation of the point involved lies in a small compass, Opp. parties 1 to 4 brought a suit in the Court of Subordinate Judge, First Court, Cuttack, for title and possession in respect of Ac. 027 decimals of land out of survey plot No. 868 comprising an area of Ac. 4.69 decimals. The petitioner (defendant No. 2 in the suit) took the plea that the disputed land appertained to his own plot and not to the plaintiffs' purchased plot. The trial Court rejected the plaintiffs' prayer for deputation of a survey-Knowing commissioner for local investigation and ultimately dismissed the suit on the evidence adduced by both the parties. Against such decision, the plaintiffs carried appeal to the District Judge where they renewed their prayer for deputation of a survey-knowing commissioner under Order 26. Rule 9 of the Code o1 Civil Procedure. On a consideration of the application the appellate Court observed that the dispute was essentially with regard to boundary between the respective areas of the parties and the same should be measured by a survey-knowing commissioner to ascertain as to, to which plot the disputed land appertains and that the application was maintainable. Accordingly the appellate Court directed the trial Court to depute a survey-knowing commissioner for local investigation, bear the parties on the report of the commissioner, record his finding and submit the same to the appellate Court. The appeal was kept pending till receipt of the finding from the trial Court. It is this order of the appellate Court which is assailed in the civil revision.
3. Mr. Sahu, learned counsel for the petitioner, argued that the earlier.order passed by the trial Court refusing the prayer for local investigation having not been challenged in any higher Court, reached finality and the appellate Court lacked jurisdiction to deal with such prayer, its only duty being to dispose of the appeal on the evidence available on record. In support of his argument he relied on certain observations in the case of Harmohan Mishra (supra).
4. In the aforesaid case the matter before his Lordship arose out of two Title Suits between the same parties, each alleging encroachment by the other. Both the suits were tried analogously. The main issue in the two suits was whether the disputed wall appertains to plot No. 1247 or to plot No. 1248. Although a survey-knowing commissioner was appointed by the trial Court to ascertain the main controversy between the parties, his report was not accepted and the parties were directed to take out their own Amins to ascertain as to whether the disputed land appertains to plot No. 1247 or 1248. The trial Court did not accept the reports of the Amin as well and considering other materials on record came to the conclusion that the wall in question was used by both the parties commonly since more than 20 years and both of them have acquired the right of user. In appeal against one of the trial Court decrees, the appellate Court also came to hold that the reports of the Amins (PW 3 and DW 4) were in no way helpful to the Court to come to the right conclusion as to which plot the suit wall appertained and that the trial Court had found out a third case which was unwarranted, The appellate Court accordingly took the view that it was necessary to ascertain precisely as to whether the wall stood over plot No. 1247 or over plot No. 1248 for which appointment of a survey- knowing commissioner' by the Court was necessary. Accordingly, the Title Appeal was allowed and both the suits were remanded to the trial Court with a direction to appoint a new survey-knowing commissioner and then dispose of the suits after affording a chance of hearing to both the parties, taking into consideration the other evidence along with the report of the survey knowing commissioner. This order of remand was assailed in revision before this Court.
On the above facts Hon'ble Chief Justice has observed that the parties have led! all evidence which they thought fit to bring on record in support of their respective cases. ft was a case where on the evidence on record, the trial Court held that the parties failed to establish their respective cases and this being Rot a case where any party wanted to take advantage of Rule 27 by giving additional evidence, simply because the higher Court felt that better evidence should have been brought on record, it cannot exercise the power of remand. His Lordship gave an analogy that in a suit based on a hand- note, execution of which is denied by the defendant, if the plaintiff does not choose to examine an expert and on that account the suit fails, the appellate Court in exercise of the power of remand cannot direct appointing a handwriting expert, as that would amount to filling up the lacuna in the case and the action would be wholly without jurisdiction. As to the position of law it is stated that where a party with full knowledge fails to discharge the burden of proof, an order of remand is not proper to enable him to get a fresh opportunity for that omission.
5. Each case is decided on its own facts. In the aforesaid case the trial Court had afforded due opportunity to both sides to engage their own Amins to prove their respective cases. The reports of the Amins were, however, not accepted, In appeal neither party wanted additional evidence under Order 41, Rule 27, CPC. In this background, there was no justification on the part of the appellate Court to remand the suits to the trial Court with a direction to appoint a new survey- knowing commissioner, hear the parties afresh and dispose of the suits. That being the position, the appellate Court clearly acted Without jurisdiction and his order of remand clearly amounted to filling up the lacuna in the case. But the position of law has been somewhat broadly stated in Harmohan Misra.
6. A survey-knowing commissioner is deputed for local investigation for the purpose of elucidating the question as to whether the disputed land appertains to a particular survey plot or plots. His report is evidence in the case and forms part of the record. Such evidence is usually collected during trial of a suit In a given case if such evidence was essential but has not been led during trial of the suit, and it is sought to be led in appeal, it would be by way of additional evidence. As to when either party to an appeal is entitled to produce additional evidence, the relevant provision is Order 41, Rule 27 of the Code. Under Clause 1(b) of the said rule the appellate Court has power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for any other 'substantial cause'. An appellate Court may be able to pronounce judgment on the materials already on record but may still consider additional evidence necessary in the interest of justice to pronounce a satisfactory judgment. In such a case paramount consideration being ends of justice, admission of additional evidence is for meeting a 'substantial cause'. Further more if additional evidence sought to be introduced in appeal has a direct bearing on the main issue involved in the case, a party should normally be permitted to adduce additional evidence unless he is guilty of laches. If an appellate Court felt that the evidence of survey-knowing commissioner after local investigation, or opinion of a handwriting expert after comparison, is required in the interest of justice, there can be no legal impediment for appellate Court to permit admission of additional evidence and ultimately utilise the same for final disposal of the appeal. But in such a case the appellate Court has in compliance of Rule 28, to retain the appeal and either to take such evidence itself or direct the trial Court or even any other subordinate Court to take such evidence and send it to the appellate Court who can utilise the same while finally disposing of the appeal.
7. As to the argument of Mr. Sahu that the trial Court's order refusing the prayer for local investigation having not been challenged in revision in higher Court, the matter could not be re-opened in appeal, we are not convinced for the simple reason that revision is not a matter of right and a revisional Court does not interfere on ground of mere illegality or erroneous decision. In Karam Singh v. Jagta and Ors. AIR 1982 Punjab and Haryana 21. it is held that if any interlocutory order was passed by the trial Court which was the subject matter of revision in the High Court and the revision was dismissed with one word order, 'Dismissed' that would not operate as res- judicata nor debar the aggrieved party to re-agitate the matter in the first or a second appeal. In fine, we are of the view that in the case at hand the question regarding deputation of a survey-knowing commissioner sould be re-agitated in appeal and the prayer has rightly been allowed by the appellate Court. We thus do not find any jurisdictional error in the impugned order warranting interference by this Court.
In premises aforesaid, the revision is dismissed. There shall be no order as to costs.
P.C. Mishra, J.
I agree.