Judgment:
B.J. Shethna, J.
1. The applicants-appellants-State of Gujarat and Collector Vadodara have filed above appeal against the judgment and decree dated 21-3-1994 passed by the Joint Civil Judge (S.D.), Vadodara in Special Civil Suit No. 776 of 1992 whereby the learned Judge dismissed the Special Civil Suit No. 776 of 1992 filed by the appellants for declaration and permanent injunction in respect of land bearing Survey No. 371 and 372B Tika No. 27/ 15, 27/16, 27/17 Survey No. 1/A/2 situated within the municipal limits ofVadodara Municipal Corporation admeasuring 128073 sq.mtr. of land i.e. 53 vighas and 17 vassas. The appeal was admitted way back on 13-5-1994.
It seems that the appeal was earlier listed for final hearing on 22-6-2000 before other Division Bench wherein Civil Application No. 4849 of 2000 was moved on the previous day i.e., on 22-6-2000 and it was placed before the concerned Bench on 22-6-2000 under the orders of the Hon'ble Chief Justice. The said application was filed under Order 41, Rule 27 of Civil Procedure Code seeking permission to adduce additional evidence in the First Appeal. However, the said Civil Application No. 4849 of 2000 for production of additional evidence in the First Appeal was rejected by the concerned Division Bench by its order dated 22-6-2000 running into 8 typed pages. Special Leave to Appeal (Civil) CC 4453 of 2001 filed against the aforesaid order passed by the Division Bench of this Court before the Hon'ble Supreme Court was dismissed as withdrawn on 19-7-2001 by a brief order which reads as under :-
'Delay is condoned. Learned Counsel for the petitioner submits that he would advise the petitioner to withdraw Special Leave Petition with a liberty to raise these points in the appeal at appropriate stage where it becomes necessary. The Special Leave Petition is dismissed as withdrawn'.
2. Under the order dated 17-1-2002 passed by the Hon'ble Chief Justice, the main appeal was specially assigned to this Bench because of exception of M. H. Kadri, J. Accordingly, it was placed before us.
3. Senior Advocates Shri K. G. Vakharia and Shri Sharad Vakil, appearing for the respondents raised preliminary objections in the appeal regarding maintainability of suit. And in alternative, it was submitted that if the suit was maintainable then it must be held that it was time-barred by the period of limitation and accordingly appeal be dismissed. Shri Trivedi, learned A.A.G. tried to meet with the preliminary objections raised by the learned Counsel for the respondents and also addressed us on merits of the case. Shri Trivedi tried to rely upon certain documents which were not produced on record .before the trial Court, therefore, it was objected by the learned Counsel for the respondents that the said documents which were never produced on record or exhibited cannot be looked into by this Court for the first time in the appeal. When this objection was raised by the learned senior Advocates for the respondents, realizing the difficulties in his way, Shri Trivedi, learned A.A.G. submitted above Civil Applications for production of the documents as additional evidence in this appeal on 6-2-2002 and 12-6-2002, respectively.
4. The aforesaid Civil Applications for adducing additional evidence were opposed tooth and nail by the learned senior Advocates Shri K. G. Vakharia and Shri S. B. Vakil as well as learned Counsel Shri Tushar Mehta appearing for the respective respondents on several grounds.
5. It must be stated that both the aforesaid Civil Applications for adducing additional evidence in this case are filed under Order XLI, Rule 27 of Code of Civil Procedure on the ground that documentary evidence referred to in Annexure-I to the application have direct and important bearing on the issues involved in the subject-matter and that there are two sets of evidences in thecase, therefore, the additional evidence will throw more light showing the correct position of all the documents. It is urged in both the Civil Applications that to remove the obscurity the said additional documentary evidences is necessary.
6. The aforesaid Civil Applications for production of documentary evidence shown in the list of Annexure-I as additional evidence in the case are strongly opposed by the learned Counsel appearing for the respondents. The respondents submitted that the applicants/appellants have deliberately not stated in their application that under which clause of Rule 27, Order XLI their case falls. They submitted that reading the language of Rule 27 of Order XLI of Civil Procedure Code, it is clear that there is an embargo on production of additional evidence in appeal. Order XLI, Rule 27(1) clearly provides that the parties to an appeal shall not be entitled to produce any additional evidence, whether oral or documentary, in the appellate Court. But such embargo of production of additional evidence would not operate : (i) if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted as produced under Rule 27(1)(a) and (ii) the party seeking to produce additional evidence, establishes 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 at the time when the decree appealed against was passed under Rule 27(aa). Therefore, it was submitted by the respondents that the case of the applicants neither falls under Order XLI, Rule 27(1)(a) or (aa). Hence, both the civil applications filed by the applicants/ appellants for production of additional evidence be rejected.
7. However, learned A.A.G., Shri Trivedi submitted that their case do not fall either under Rule 27(1)(a) or (aa), but for 'substantial cause' this Court should allow their both Civil Applications. According to Mr. Trivedi without the additional documents which they want to produce in the case, this Court would not be able to pronounce the judgment. He, therefore, submitted that this Court may exercise its powers under Rule 27(1)(b) of Civil Procedure Code ii> the interest of justice.
8. However, senior Advocates Shri S. B. Vakil and Shri K. G. Vakharia and learned Counsel Shri Tushar Mehta for the respondents vehemently submitted that such request of learned A.A.G., Shri Trivedi should not be accepted as they are suffering in this matter since 1962 and by now 40 years period has passed and still the matter has not come to an end and that similar Civil Application No. 4849 of 2000 for production of additional evidence was dismissed by other Division Bench of this Court on 22-6-2000 by a speaking order running into eight typed pages and S.L.P., against that order is also dismissed, therefore, bar of constructive res judicata would operate in this matter. In support of their contentions, they have relied upon following judgments of the Hon'ble Supreme Court as well as High Courts :-
(1) 1965 SC 1008(b) The Municipal Corporation of Greater Bombay v. Lala Pancham and Ors.
(2) 1968 SC 406 Sunderlal & Sons v. Bharat Handicrafts Pvt. Ltd.
(3) 1998 (1) GLR 788 Patel Nanji Bhavan Dudhatra v. Patel Naran Mitha Sukhadiya and Anr.
(4) AIR 1990 Bom. 98
(5) 2001(7) SCC 503 N. Kamalam (dead) and Anr. v. Ayyasamy and Anr.
9. Rule 27(1)(b) of Order XLI provided that if 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, it may allow such evidence or document be produced or witness be examined. Admittedly, in the instant case, it is not the case of the applicants-appellants that the trial Court has refused to admit (he evidence what it has adduced. They have not come out with the case that in spite of their due diligence they could not produce additional evidence before the trial Court. The additional evidence which the appellants want to produce in this appeal is the Government record and all those documents were very much with them when they filed suit before the trial Court and appeal before this Court, but in spite of it, though they had several opportunities for the reasons best known to them they have not bothered to produce it either before the trial Court or before this Court when they filed appeal before this Court against trial Court's order in 1994. During the midst of hearing of this appeal in 2002, they apply for production of additional evidence by way of applications in the appeal.
10. Under the circumstances, it appears to us that when they realised that they cannot have resort to the provisions of Rule 27(1)(a) or (aa) Order XLI of Code of Civil Procedure, therefore, an attempt is made to bring such evidence on record in the appeal for the first time in the name of 'substantial cause'. An emotional appeal was made by learned A.A.G., Mr. Trivedi appearing for the appellants that if it is not allowed then grave prejudice will be caused to them. However, on facts of this case, we are not much impressed by such sentimental or emotional appeals made by learned A.A.G., Shri Trivedi. But, we are of the considered opinion that the matter must be decided strictly in accordance with law for which we may not refer to other judgments cited by the learned Counsel for the respondents except the judgment of the Constitutional Bench of the Hon'ble Supreme Court in the case of Lala Pancham 's case (supra) wherein the Hon'ble Supreme Court held that :-
'Under Order 41, Rule 27 the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way.'
11. It must be stated that in the instant case one Jayantikumar Patel applied for the portion of the lands from the State Government. Coming to know about such application Shri Mahendra Desai filed his objections on 26-12-1962 and claimed the ownership of the disputed lands. The City Survey Officer, Vadodaraby his letter dated 19-2-1963 informed Shri Mahendra Desai-Original respondent No. 1 that the disputed land belonging to the Government and they had no right, title or interest in the said land. Therefore, a dispute was raised before the Collector, Baroda and in turn he referred the said dispute to Mamlatdar, Vadodara for inquiry under Section 37(2) of Bombay Land Revenue Code by his order dated 12-8-1963. However, later on the Collector, Vadodara by his order dated 17-2-1964 directed that the inquiry be conducted by Assistant Collector, Baroda instead of Mamlatdar. Accordingly, Assistant Collector, Baroda by his order 1-6-1964 held that the land in question belongs to the respondents. However, the Collector, Vadodara took up the matter in revision in his suo motu powers under Section 211 of the Bombay Land Revenue Code and by his order dated 9-9-1964 he allowed revision and set aside the order passed by Assistant Collector, Vadodara and remanded the matter to the Assistant Collector for his fresh decision in accordance with law.
12. The Assistant Collector, Vadodara decided the matter afresh and held that the respondents failed to establish the title and ownership over the land and it was held that the land in question was part of P. C. Pratap Guards land, therefore, it was of the ownership of the State Government. The respondents challenged the said order by way of appeal being Application No. 4/67 before the Collector, Vadodara, which was dismissed by the Collector, Vadodara by 7 his order dated 9-8-1968.
13. Aggrieved by the order passed by the Collector, Vadodara confirming the order passed by the Assistant Collector, the respondents filed appeal No. 137 of 1968 before the Gujarat Revenue Tribunal. The same was allowed by the Tribunal on 11-6-1969 and the matter was remanded back to the Deputy Collector, Vadodara by holding that the land admeasuring 53 vighas and 17 vassas was of the ownership of the respondents. The matter was remanded on the request of the learned Government Pleader to allow them to lead additional evidence. In spite of it, the said opportunity was not availed of by the appellants.
14. On remand the Deputy Collector, Vadodara decided the matter against the respondents holding that the land in question was part of Fatesinh Regiment and the Government. The said order was again challenged by the respondents in appeal before the Gujarat Revenue Tribunal. But the said appeal was returned on the ground that it had no jurisdiction and the respondents were directed by the Tribunal to file appeal before the appropriate authority. Accordingly, the respondents filed appeal before the Collector, Vadodara under Section 37(2) of the Bombay Land Revenue Code. It was dismissed by the Collector by his order dated 14-5-1983 whereby he confirmed the order passed by the Deputy Collector on 7-4-1980.
15. Aggrieved by the aforesaid orders passed by the Deputy Collector, Vadodara dated 7-4-1980 and confirmed in appeal on 14-5-1983, the respondents once again filed appeal/revision being TEN. A.A. 36 of 1990 before the Gujarat Revenue Tribunal which was allowed on 29-11-1991 and the orders passed by the Deputy Collector and Collector were set aside and it is held that the respondents were the owners of the land.
16. The aforesaid order passed by the Tribunal was challenged by the Collector, Vadodara by way of writ petition being Special Civil Application No. 6428 of 1992 before this Court. During the pendency of the petition the State Government filed Civil Suit No. 7762 of 1992 before the Civil Court, Vadodara and challenged the impugned judgment and order dated 29-11-1991 passed by the Gujarat Revenue Tribunal, holding that the land in question was in possession and ownership of the respondents. In view of the suit filed before the Civil Court, challenging the legality and validity of the order passed by the Tribunal the Division Bench of this Court rejected the writ petition No. 6428 of 1992. Even thereafter, the appellants had the opportunity to lead all the evidence with them, but for the reasons best known to them they have not produced the entire evidence before the Civil Court and after the suit was dismissed by the Civil Court on 21-4-1994, after a period of 8 years i.e., in 2002 they thought it fit to produce it as an additional evidence in this appeal.
17. As stated earlier, an attempt was made by the appellants in 2000 when the appeal was placed tor final hearing in the month of June, 2000 to bring the additional evidence on record but their Civil Application was dismissed by another Division Bench of this Court. The Special Leave Petition was also dismissed as withdrawn before the Hon'ble Supreme Court.
18. Under the circumstances, we are of the considered opinion that the appellants had number of opportunities to produce the documentary evidence, which they now want to produce on record as additional evidence by way of this application, but they miserably failed to produce it first before the Collector when the matter was specifically remanded with that purpose of adducing additional evidence then before the Court, therefore, as a defaulting party now they cannot resort to the provisions of Order 41, Rule 27(b) of Civil Procedure Code to produce it in this appeal when their similar application in this appeal was dismissed by another Division Bench of this Court in 2000.
19. From the earlier order dated 22-6-2000 passed by the Division Bench of this Court (Coram : Late D. C. Srivastava (as he then was) and H. K. Rathod, JJ.) dismissing similar Civil Application No. 4849 of 2000 for production of additional evidence, we find that the said application was dismissed by a speaking order running into 8 typed pages. The Division Bench of this Court held that the additional evidence which was sought to be produced on record was not necessary for pronouncing judgment in the appeal. In that Civil Application also similar grievance was made that there was a manipulation or interpolation with the document, but the Division Bench of this Court found that the judgment and decree was passed by the trial Court way back in March, 1994 and Civil Application was filed at a belated stage only in 2000 when the first appeal was placed for final hearing before that Bench on 22-6-2000. We also find from that order rejecting that Civil Application for production of additional evidence, that Their Lordships have relied upon the judgments of the Hon'ble Supreme Court as well as of the judgments of the Privy Council, including the case of Lala Pancham (supra) as also of this Court and come to the conclusion that the additional evidence was not necessary for pronouncementof judgment in the appeal and that judgment can be pronounced on the basis of the order of the trial Court and the material available in this appeal. The aforesaid order rejecting the Civil Application No. 4849 of 2000 passed by the Division Bench of this Court on 22-6-2000 was challenged before the Hon'ble Supreme Court by the appellants. But as stated earlier the said Special Leave Petition was dismissed as withdrawn.
20. Thus, we are of the considered opinion that once the Division Bench of this Court has rejected Civil Applications for production of additional evidence then on same ground another Civil Application would not lie on the same ground and now this Court cannot take any other view of the matter.
21. In view of the above discussion, both the Civil Applications Nos. 964 of 2002 and 1150 of 2002 filed by the appellants for production of additional evidence in the appeal are rejected.