Tarun Kumar Gupta, J.
1. These two appeals arose out of judgment dated 23.06.2005 passed by Sri C. L. Sinha, learned Additional District Judge, Fast Track Court No. 1 of Howrah in Title Appeal No. 31 of 2003 remanding Title Suit No. 94 of 1998.
2. The facts of the case is that appellant/plaintiff/landlord being a Private Limited Company under the name and style 'Dass Estate Pvt. Ltd.' filed an ejectment suit against M/s. Karar and Company being defendant/respondent on the ground of default, making illegal construction as well as for building and rebuilding being Title Suit No. 94 of 1998 in the Court of learned Civil Judge (Senior Division), 6th Court, Howrah. Initially Ganesh Karar and Robin Karar appeared in the suit by filing vokalatnama claiming to be proprietor of M/s. Karar and Company. However, written statement was filed by only Robin Karar claiming himself to be the proprietor of the defendant firm M/s. Karar and Company, denying material allegations of the plaint and challenging the relationship of landlord and tenant. There was an order of amendment of plaint passed by learned Trial Court vide Order No. 57 dated 2nd January, 2002 against which Robin Karar filed a revisional application being C.O. No. 394 of 2002 in this Hon'ble Court wherein he filed an affidavit declaring himself as the proprietor of the defendant firm but the said revisional application was dismissed on contest by this Hon'ble High Court vide Order dated 25th February, 2002 by upholding the order of amendment by learned Trial Court. Against said amendment of plaint Robin Karar claiming to be proprietor of defendant firm filed additional written statement. In said Title Suit No. 94 of 1998 Robin Karar filed an affidavit-in-chief as D.W. 1 claiming himself as the proprietor of the defendant firm. In cross-examination he categorically stated that he was the owner of defendant firm. After contested hearing learned Trial Court decreed the suit for ejectment vide the judgment dated 30.01.2003. Sri Robin Karar claiming himself as the proprietor of M/s. Karar and Company preferred an appeal being Title Appeal No. 31 of 2003 challenging said judgment of ejectment dated 30.01.2003 passed by learned Trial Court. At the time of filing the said appeal in the Court of learned First Appellate Court Robin Karar filed vokalatnama as proprietor of Karar and Company. During pendency of the said Title Appeal No. 31 of 2003 appellant/defendant Robin Karar filed an application under Order 6 Rule 17 of C.P.C. read with Section 151 C.P. C. praying for amendment of the written statement filed by appellant/defendant Robin Karar in Title Suit No. 94 of 1998 alleging that through inadvertence some apparent error and/or omission crept in the written statement which was required to be amended for proper adjudication and that those amendments would not change nature and character of the suit. By way of said amendment Robin Karar wanted to incorporate a separate paragraph being 10 A asserting that Karar and Company was a proprietorship firm and that Sri Ganesh Karar was the proprietor of the firm and that Ganesh Karar as proprietor should have been made a party etc. Appellant/defendant Robin Karar also filed an application under Order 41 Rule 27 read with Section 151 C. P.C. in said First Appellate Court for production of additional evidence by way of bringing on record a copy of challan, a copy of trade licence, a copy of income tax clearance certificate, a copy of registration of dealer and some other documents showing Ganesh Karar as proprietor of M/s. Karar and Company. The present appellant plaintiff filed written objection against both the petitions. As per direction of learned First Appellate Court vide Order 17 dated 12.01.2005, Robin Karar filed an affidavit stating that he was not the proprietor of Karar and Company and that Ganesh Karar was the sole proprietor of said Karar and Company and that due to some unavoidable circumstances he was compelled to claim himself as the proprietor of Karar and Company. Against said affidavit dated 12th January, 2005 of Robin Karar alleging that he was not the proprietor of Karar and Company and that Ganesh Karar was the sole proprietor of said Karar and Company etc. Appellant/plaintiff filed a counter affidavit stating that Robin Karar all along contested the said suit in Trial Court and also filed various petitions in the Trial Court as well as in the Hon'ble High Court claiming himself as the proprietor of Karar and Company and that Ganesh Karar is none other than his own brother and that in appeal stage Robin Karar is trying to produce some documents claiming Ganesh Karar as sole proprietor of Karar and Company and that those documents are coming from the custody of Robin Karar and not from any other person. Appellant/plaintiff also filed a petition under Section 340 Cr. P.C. for drawing an appropriate proceeding against defendant Robin Karar for filing false affidavits in Court knowing the same to be false. Learned Appellate Court disposed of the amendment petition filed by Respondent/defendant Robin Karar and the petition under Section 340 Cr. P. C. filed by the appellant/plaintiff by the impugned judgment dated 23rd of June, 2005. In the said judgment learned First Appellate Court allowed the prayer for amendment of W.S. filed by respondent/defendant observing that plaintiff/landlord and defendant Robin Karar made unholy nexus in between themselves to procure a decree of eviction from learned Trial Court and that in order to give proper justice he was willing to allow the petition of amendment of the W.S. and accordingly he remanded the case to learned Trial Court to take further evidence on the basis of amendment of W.S. Regarding the petition under Section 340 Cr. P.C. filed by the plaintiff/landlord against defendant Robin Karar learned First Appellate Court refused to take any action and observed that it was open to the learned Trial Court to take cognizance on the basis of the petition under Section 340 Cr. P. C. filed by the plaintiff/landlord against defendant Robin Karar after conclusion of trial of Title Suit No. 94 of 1998 and that it was totally discretionary on the part of the learned Trial Court.
3. Being aggrieved with said order of remand by allowing amendment of W.S. filed by Robin Karar with liberty to the parties to adduce evidence on said amended W.S. F.MA. 2326 of 2005 was filed by appellant. F.M.A. 2327 of 2005 was filed by the appellant/plaintiff against the same judgment wherein learned First Appellate Court refused to take cognizance against defendant Robin Karar under Section 340 Cr. P. C.
4. Accordingly, both the F.M.A.s were taken up together for hearing.
5. Learned Advocate for appellant/plaintiff has submitted that learned First Appellate Court committed gross mistake of both law and fact by allowing respondent/defendant Robin Karar to make amendments in his W.S. on the basis of documents produced by him in the Court of appeal under Order 46 Rule 27 read with Section 151 C. P.C. According to him respondent/defendant Robin Karar all along contested the eviction suit claiming himself as the proprietor of Karar and Company and also filed revisional application in the Hon'ble Court claiming himself as proprietor of Karar and Company and that after suffering the decree of eviction in the Trial Court he produced a bunch of documents claiming that his brother Ganesh Karar was the proprietor of M/s. Karar and Company and that he was not the proprietor of said concern. In this connection he has referred a case law reported in : AIR 1978 SC 798 Haji Mohammed Ishaq Wd. S. K. Mohammed and Ors. v. Mohammed Iqbal and Miohammed Ali and Co. wherein the Hon'ble Full Bench (Hon'ble three Judges) of Supreme Court held that when the amendment of written statement sought in appeal was on such facts which, if permitted to be introduced by way of amendment, would have completely changed the nature of the original defence and would have brought about an entirely new plea which was never taken in the original pleadings and the additional evidence sought to be adduced was in respect of facts stating in amendment petition, under these circumstances the amendment petition should not be allowed.
6. In this connection he has referred a case law reported in : (2008) 7 SCC 85 Goutam Sarup v. Leela Jetly and Ors. wherein it was held by the Hon'ble Court that defendant admitting in a written statement the pleas and contentions of the plaintiff can not be permitted to amend the same to deny or dispute plaintiff's claim.
7. He has also referred another case law reported in : AIR 1998 SC 618 Heeralal v. Kalyan Mal and Ors. wherein it was held that amendment of written statement seeking withdrawal of admission cannot be permitted.
8. In this connection he has further referred a case law reported in : (2007) 5 SCC 602 Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors. wherein the Hon'ble Court held that addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in written statement can be allowed as long as the amended pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely.
9. In this connection he has also referred a case law reported in AIR 1985 Gau. 107 Md. Saifur Rahaman v. State of Assam and Ors. wherein it was held that the provisions of the order 41 Rule 27 (aa) are applicable when a party contests a point, makes some averments and adduce some evidence at the trial stage and that for that case alone the Court can exercise jurisdiction under Order 41 Rule 27 (aa). It was further held that allowing a party to take an additional plea for the first time at the appellate stage and to lead fresh evidence was not a case of adducing additional evidence and was not permissible.
10. Learned Advocate Mr. Santanu Das for the appellant has accordingly submitted that learned First Appellate Court should have rejected the prayer for amendment of W.S. filed by Robin Karar on the ground of producing additional evidence to establish that his brother Ganesh Karar and not him was the proprietor of Karar and Company thereby changing entire defence taken in the Trial Court by projecting himself as the proprietor of the firm.
11. According to him the impugned judgment dated 23.06.2005 passed by Sri C. L. Sinha, learned Additional District Judge, Fast Track Court No. 1, Howrah in Title Suit No. 31 of 2003 should have been set aside and the matter should be remanded back to the Court concern for writing fresh judgment on the basis of materials already on record.
12. Regarding F.MA. No. 2327 of 2005 learned Advocate for the appellant has submitted that it was palpable from the affidavits sworn by Robin Karar on different stages of the trial as well as before the Hon'ble Court that he projected himself as the proprietor of Karar and Company but later on he filed an affidavit before the First Appellate Court admitting that his brother Ganesh Karar was, and he was not the proprietor of Karar and Company and that on that score learned First Appellate Court should have initiated proceedings against Robin Karar under Section 340 Cr. P.C. for swearing false affidavit as well as for practising fraud upon Courts.
13. Learned advocate Mr. Hiranmoy Bhattacharyya assisted by learned Advocate Mr. Mrinal Kanti Ghosh for respondent on the other hand has submitted that F.M.A. No. 2327 of 2005 is not maintainable in this forum as in terms of Rule 10A of Calcutta High Court Appellate Side Rule Chapter-II a Division Bench consisting of two judges should hear applications relating to, or arising out of, proceeding in any subordinate Court under Section 340 Cr. P.C. In this connection he has referred a case law reported in : 2008 (2) CHN 133 Sudakshina Ghosh v. Arunangshu Chakraborty.
14. Regarding F.M.A. No. 2326 of 2005 he has referred a case law reported in (2009) 14 SCC 38 Sushil Kumar Jain v. Manoj Kumar and Anr. to impress upon this Court that even admissions made in written statement can be explained by amendment.
15. In this connection he has further referred a case law reported in 84 (Supp) SCC 594 Panchdeo Narain Srivastava v. KM. Jyoti Sahay and Anr. wherein Hon'ble Court held that an admission made by a party may be withdrawn and may be explained away.
16. He has also referred a case law reported in : (2006) 4 SCC 385 Rajesh Kumar Aggarwal and Ors. v. K. K. Modi and Ors. wherein it was held that Court should allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side.
17. He has further referred a case law reported in : (2002) 7 SCC 559 Sampath Kumar v. Ayyakannu and Anr. wherein it was held that amendments seeking to introduce a cause of action which arose during pendency of the suit can be allowed to avoid multiplicity of proceedings and that long delay should not stand in the way.
18. He has further referred a case law reported in : (2001) 8 SCC 97 Estralla Rubber v. Dass Estate (P) Ltd. wherein Hon'ble Court held that amendment of pleading by defendant ought to be allowed where purpose of proposed amendment was to elaborate the defence and take additional pleas in support of the case and that when there was an indirect admission in the original pleading which was open to the defendant to explain the same by way of amendment.
19. From the case laws referred by learned Advocate for the respondent it is apparent that the defendant has always the opportunity to file additional W.S. for clarification of the stand and also the admission, if any, made in the original W.S. and that Court should be liberal in this issue. Said proposition of law is not disputed by anybody. In the case in hand respondent/defendant Robin Karar all along took the stand that he was the proprietor of Karar and Company and there was no whisper at any point of time during trial in the Trial Court as well as during filing of revision in this Court from an order of learned Trial Court that his brother Ganesh Karar was and he was not the proprietor of Karar and Company. If respondent Robin Karar is permitted to file additional W.S. claiming that his brother Ganesh Karar was the sole proprietor then it would have completely changed the nature of his original defence and the same is not permissible in view of the above stated judgment of Hon'ble Apex Court in Haji Md. Ishak's case (supra). Apart from that said Haji Md. Ishak's case was decided by a larger Bench (three Hon'ble Judges) and said decision overrules any contrary decision, if any, passed by any smaller Bench of Hon'ble Apex Court (two Judges Bench).
20. Production of additional evidence in Appellate Court is governed by Order 41 Rule 27 C. P.C. which runs as follows:
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 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, 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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
21. Order 41 Rule 27(1)(aa) comes into play only when the party seeking to adduce 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. Such provision is not at all applicable in the case in hand as Ganesh Karar was the own brother of Robin Karar, the respondent/defendant and he cannot be permitted to aver for the first time at the appellate stage that he did not know that his brother Ganesh Karar was and he was not the proprietor of Karar and Company or that he learnt about said ownership of Ganesh only recently or that those documents of ownership of Ganesh were not within his knowledge. Apart from that a party cannot be permitted to take advantage of his own fraud committed upon other side as well as upon Court.
22. In this connection I am constrained to hold that the comments of learned First Appellate Court that plaintiff obtained ejectment decree in collusion with defendant Robin Karar had no basis. Had there been any such collusion Robin Karar would not have moved High Court against an order of allowing the petition praying for amendment of plaint filed by plaintiff. Rather it appears that collusion, if any, was in between two brothers viz Robin and Ganesh, because there was no explanation as to why Robin alone filed W.S. claiming him as the proprietor of Karar and Company when both Robin and Ganesh jointly filed vokalatnama in the Trial Court at the initial stage as proprietor of 'Karar and Company'.
23. In view of the above discussions I am of the opinion that the impugned judgment dated 23.06.2005 passed by Sri C. L. Sinha, learned Additional District Judge, Fast Track Court No. 1, Howrah in Title Appeal No. 31 of 2003 so far as it relates to allowing respondent/defendant Robin Karar to file W.S. on the basis of further documents to be produced and remanding of case to learned Trial Court cannot be sustained. Accordingly said part of the impugned judgment is hereby set aside. Learned 1st Appellate Court is hereby requested to rewrite this judgment afresh after giving opportunity to the parties to make further argument, if any, on the basis of materials already on record. F.M.A. No. 2326 of 2005 is accordingly disposed of.
24. In view of the ratio of the case law reported in : 2008 (2) CHN 133 read with Rule 10A of Calcutta High Court Appellate Side Rule chapter-II the Single Bench is not in a position to dispose of F.M.A. No. 2327 of 2005 as it relates hearing of application relating to, or arising out of, proceedings in a subordinate Court under Section 340 Cr. P.C. and the same has to be disposed of by a Division Bench of this Hon'ble Court consisting of two judges. Accordingly, appellant is permitted to withdraw F.M.A. No. 23 27 of 2005 with liberty to file in proper forum subject to the laws of the land.
25. F.M.A. No. 2327 of 2005 stands disposed of accordingly.
26. Office is directed to send L.C.R.s along with a copy of the judgment to the learned Court concern forthwith.
27. Urgent xerox certified copy of this judgment be supplied to the Counsels of the party/parties, if applied for.