JUDGMENT
Kamlesh Sharma, J.
1. The appellant is the defendant whereas the respondent is the plaintiff and they will be referred to as such in this judgment. The defendant is aggrieved by the order dated 21-8-2000 passed by the District Judge, Kinnaur Civil Division at Rampur Bushahr, whereby the appeal of the plaintiff was allowed and the decree and judgment dated 7-3-2000 of the Sub Judge 1st Class, Rampur Bushahr, District Shimla, was set-aside. The Sub Judge had dismissed the suit as not maintainable being hit by Section 69 of the Indian Partnership Act (hereinafter called ‘the Act’).
2. In the appeal before the District Judge, the plaintiff had filed an application under Order 41, Rule 27, CPC for additional evidence to produce the original registration certificate of the plaintiff-firm which was allowed subject to payment of cost of Rs. 500/- and the certificate of registration of the plaintiff firm was admitted in evidence as Ext. PX. After admitting the additional evidence, the suit of the plaintiff was remanded to the trial Court for disposal in accordance with law and in the light of the observations made in the order.
3. Brief facts of the case are that the plaintiff had filed a suit for the recovery of Rs. 49,500/- against the defendant on the allegations that the defendant had bought goods on credit from the plaintiff firm and issued a cheque dated 5-9-1995 in the sum of Rs. 32,800/- towards the price of the said goods which was dishonoured and the defendant became liable to pay the principal amount along with interest at the rate of 18% per annum.
The defendant resisted the suit and raised preliminary objection of its maintainability and also estoppel. On merits, the defendant denied his liability and put forth his defence that he had only selected the goods of the value of Rs. 5000/- from the business premises of the plaintiff, but did not lift them and had handed over a blank cheque dated 5-9-1995 to the plaintiff who had filled in the amount of Rs. 32,800/- therein.
5. On the pleadings of the parties, the following issues were framed :
1. Whether the plaintiff is entitled for the recovery of Rs. 49,500/- as prayed for? OPP.
2. Whether the plaintiff has no cause of action? OPD.
3. Whether this suit is not maintainable? OPD.
4. Whether the plaintiff is estopped by his act and conduct to file this suit?
OPD.
5. Relief.
6. The trial Court had dismissed the suit holding that in the absence of registration certificate of the plaintiff firm on record to show that it is registered and the person through whom it is being sued is its partner, the suit is not maintainable as provided under Section 69 of the Act and the plaintiff firm is not entitled to recover the suit amount from the defendant. In view of these findings, the trial Court has not gone into the merits of the case and recorded findings on other issues.
7. Feeling aggrieved, the plaintiff filed the appeal before the District Judge which was allowed and the plaintiff was permitted to place on record the certificate of registration as Ext, PX by way of additional evidence and the case was remanded for decision afresh. Hence, the present appeal.
8. We have heard the learned counsel for the parties and gone through the record.
9. Besides assailing the permission to place on record the certificate of registration of the plaintiff firm by way of additional evidence, the learned counsel for the defendant has vehemently urged that no opportunity was given to the defendant to rebut the additional evidence. The learned counsel has also submitted that the certificate of registration brought on record by way of additional evidence, has not been proved in accordance with law.
10. On the other hand, the learned counsel for the plaintiff has supported the impugned order and has submitted that in the facts and circumstances of this case, the District Judge has rightly exercised his discretion under Order 41, Rule 27. CPC in allowing the application for additional evidence. According to the learned counsel for the plaintiff, the certificate of registration of the plaintiff firm is a public document and its certified copy has rightly been admitted on record.
11. The case set up by the plaintiff in its application under Order 41, Rule 27, CPC was that while adducing its evidence the copy of partnership deed of the plaintiff firm was placed and proved on record, but the certificate of its registration could not be produced inadvertently and also for the reason that at the time of recording its evidence, its senior counsel was not present. The defendant opposed the application.
12. The District Judge allowed the application on the ground that the certificate of registration of the plaintiff firm is required to pronounce the judgment in appeal and also in the interest of justice, in view of the peculiar facts of the case. According to the District Judge, in the absence of any evidence to rebut the statement of Surender Pal. PW1, one of the partners of the plaintiff firm that plaintiff is a registered firm, despite several opportunities granted to the defendant and the specific denial of the factum of registration of the plaintiff firm with the Registrar of Firms in the written statement, no prejudice would be caused to the defendant if the certificate of registration of the plaintiff firm is admitted in evidence.
13. The perusal of Order 41, Rule 27, CPC makes it clear that the additional evidence may be permitted in the following circumstances :
(i) Whether the lower Court has improperly refused to admit evidence which ought to have been admitted; or
(ii) Where such additional evidence was not within the knowledge of the party or could not, after exercise of due diligence, be produced by him at the time when the lower Court passed the decree; or
(iii) Where the appellate Court Itself requires such evidence either (a) to enable It to pronounce judgment; or (b) for any other substantial cause.
14. Interpreting the words “any other substantial cause”, the learned Judges of the Supreme Court in K. Venkataramaiah v. A. Seetharama Reddy, AIR 1963 SC 1526 have held in paragraph 16 of the judgment (at page 1530) :
“…………… It is well to remember that the appellate Court has the 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”. There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence “to enable it to pronounce judgment”, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence “for any other substantial cause” under Rule 27(1)(b) of the Code.”
15. Referring to the judgment of Privy Council in Parsotim Thakur v. Lal Mohar Thakur, AIR 1931 PC 143, the learned Judges have further observed in paragraphs 17 and 18 :
“(17) It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. That is why in Parsotim Thakur v. Lal Mohar Thakur, 53 Ind App 254 : (AIR 1931 PC 143) the Privy Council while discussing whether additional evidence can be admitted observed (at page 148) :
“It may be required to enable the Court to pronounce Judgment, or for any other substantial cause, but in either case it must be the Court that requires it, This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but “when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.”
(18) As the Privy Council proceeded to point out (at page 149) :
“It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands.”
16. In Billa Jagan Mohan Reddy v. Billa Sanjeeva Reddy (1994) 4 SCC 659, the learned Judges have observed in paragraph 4 :
“………..It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy, and when the Court felt that interest of justice requires that the documents may be received, exercising the power under Order 41, Rule 27, CPC the appellate Court would receive the documents and consider their effect thereof. When such is the position, when the documents are sought to be produced in the trial Court, before the arguments are completed, normally they may be received; an opportunity given to prove them and rebuttal if any and their relevance and effect they may have, be considered in deciding the issues arising in the controversy.”
17. In the recent judgment of the Supreme Court in Mahavir Singh v. Naresh Chandra (2001) 1 SCC 309 : (AIR 2001 SC 134) referring to the third circumstance under which the additional evidence may be permitted, the learned Judges have held in paragraph 5 (at page 136-137 of AIR) :
“……..In the third circumstances, the appellate Court may require any document to be produced or any witness to be examined to enable it to pronounce the judgment, or for any other substantial cause. The expression “to enable it to pronounce judgment” has been the subject of several decisions including Syed Abdul Khader v. Rami Reddy (AIR 1979 SC 553) wherein it was held that when the appellate Court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as the ability to pronounce ajudgment satisfactory to the mind of the eourt delivering it. It is only a lacuna in the evidence that will empower the Court to admit additional evidence (see : Municipal Corporation of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008. But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. The words “or for any other substantial cause” must be read with the word “requires”, which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate Court requires additional evidence, that this rule would apply as noticed by the Privy Council in Kessowji Issur v. GIP Rly (1907) 34 Ind App 115). It is under these circumstances such a power could be exercised……….”
18. We may refer to the judgment of Constitution Bench of the Supreme Court in The Municipal Corporation of Greater Bombay v. Lala Pancham, AIR 1965 Supreme Court 1998 which finds mentioned in the judgment in Mahavir Singh v. Naresh Chandra (supra). In paragraph 9 of the judgment, the learned Judges have observed :
“………..No doubt, under Rule 27, the High Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the High 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 High 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. In other words. It is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence…….”
19. In view of the ratio of the above cited Judgments of the Supreme Court, we have no hesitation to hold that even if the Court finds that it is able to pronounce the judgment on the basis of evidence on record, it may permit the additional evidence to fill in some inherent lacuna or apparent defect so that it may pronounce the Judgment in a more satisfactory manner. Applying this ratio to the facts of the present case, the inherent lacuna or defect was that the plaintiff failed to place on record the certificate of its registration with the Registrar of Firms. It was specifically averred in the plaint that plaintiff is a registered firm known as M/s. R. S. Company, Jeory, but this fact was not specifically denied In the written statement. While preferring preliminary objection that the suit was not maintainable In the present form. It was not stated that the plaintiff firm was not a registered firm. Even the statement of Surender Pal, PW1, one of the partners of the plaintiff firm that it was registered, was not rebutted by adducing evidence by the defendant, despite several opportunities granted to him. The certified copy of the registration certificate filed along with application under Order 41, Rule 27, CPC prima facie shows that the firm was registered as far back as on 24-11-1960.
20. In these facts and circumstances on record, the District Judge has rightly allowed the application under Order 41, Rule 27, CPC permitting the plaintiff to adduce evidence in respect of its registration. But the District Judge was not right in straightaway admitting the document in evidence. He was also not right in not affording any opportunity to the defendant to give evidence in rebuttal. The proper course for him was to allow the application and set-aside the findings of the trial Court on issues Nos. 1 and 3 and thereafter remand the case to the trial Court for decision afresh after giving an opportunity to the plaintiff to adduce evidence in respect of its registration with the Registrar of Firms and to give further opportunity to the defendant in rebuttal. Since the trial Court had not decided the other issues, on merits, the remand was required to be made under Order 41, Rule 23, CPC.
21. The result of above discussion is that this appeal is partly allowed and the part of the Impugned order of the District Judge whereby he has admitted the registration certificate in evidence as Ext. Ex is set-aside. However, the other part of the Impugned order of the District judge allowing the application under Order 41, Rule 27, CPC to permit the plaintiff to adduce evidence in respect of its registration with the Registrar of Firms as well as that of remand is affirmed. The trial Court will decide the suit afresh in accordance with law after giving an opportunity to the plaintiff to adduce evidence in respect of its registration and also to the defendant to rebut it. There is no order as to costs. Records be sent back to the Courts below Immediately. The parties are directed to appear before the trial Court on 26-11-2001.