JUDGMENT
A.S. Naidu, J.
1. The judgment dated 25th January, 2002 passed by the Additional District Judge, Balasore in S.J. Appeal No. 19/39 of 1997-2000 remanding O.S. No. 352 of 1994-I to the Court of Civil Judge (Senior Division), Balasore for fresh disposal, is assailed . by the defendant of the suit who was the respondent in the aforesaid S.J.A.
2. Bereft of unnecessary details, the short facts necessary to appreciate the inter se arguments are as follows:
Smt. Malati Banerjee-respondent as sole plaintiff filed Original Suit No. 352 of 1994-I in the Court of the Civil Judge (Senior Division), Balasore with the prayer to grant maintenance @ Rs. 900/- per month and for a direction to the defendant not to transfer the house and the homestead more fully described in the suit schedule. After 26 years prior to filing of the suit, she had married the defendant as per the Hindu customs and rites at Dakshineswar Kali Temple at Calcutta. After the wedding, the parties led a blissful wedded life and resided in the residential house of the defendant-husband located at Mouza Chandragadi of Balasore town. Out of their wedlock, it was averred in the plaint, a daughter and a son were born. It was, further averred that by efflux of time dissension cropped up between the plaintiff and the defendant and the defendant allegedly ill-treated the plaintiff, both mentally and physically. After a few years, he left the house without making provision for maintenance of the plaintiff-wife and children and stayed in the house of his brother. While matter stood thus, it was further averred, the defendant developed illicit relationship with another woman and totally neglected the plaintiff. He even did not provide anything for the sustenance of the plaintiff-wife and children. Consequently the plaintiff was constrained to work in different factories and met the genuine needs of her children with much difficulties. She also performed the marriage of her daughter. It is further averred that at the instance of his brother and also the so-called wife, the defendant tried to transfer all his properties in favour of his brother. On 12.2.1994 the brother of the defendant and his wife came to the house of the plaintiff, assaulted her and tried to remove her forcibly from the house but at the intervention of his neighbours, they could not succeed to do so. Similar attempts were made by them on many other occasions. The matter was also informed to the police. Though it was decided that the defendant was to pay a sum of Rs. 900/- per month towards maintenance of the plaintiff and an undertaking was given by him not to transfer the property, as he did not stick to that decision, the plaintiff was constrained to file the suit.
3. The defendant appeared and filed written statement denying his marriage with the plaintiff nor to have begotten any children through the plaintiff. Other allegations made in the plaint, were also stoutly denied. Defendant also took a specific plea that he was a bachelor, had never married the plaintiff and that the plaintiff was the second wife of one Madan Mohan Panda, the son and daughter of the plaintiff through the said husband had already married and werestaying separately. According to the defendant, the plaintiff with her son and daughter had come to Balasore and two rooms of his house were let out to her. She was staying in that house as a tenant. After partition in the family, as the defendant only let out a single room in which she was staying and she left the house. The plaintiff, it is alleged, that working in different factories and her husband Madan Mohan Panda had also purchased some lands in the name of the plaintiff and out of the said properties the plaintiff is earning handsome amount. On the basis of such submissions, the defendant prayed for dismissal of the suit.
4. On the basis of the pleadings, the trial Court framed the following five issues:
1. Has the plaintiff any cause of action for this suit ?
2. Is the suit maintainable ?
3. Whether the plaintiff is the married wife of the defendant and entitled to maintenance or the married wife of Madan Mohan Panda?
4. Whether the plaintiff was a tenant in the house of the defendant ?
5. What relief (s) ?
5. In order to substantiate her case, the plaintiff got as many as eight witnesses examined on her behalf and exhibited 43 documents. The defendant in support of his case, got nine witnesses examined and exhibited eleven documents.
6. The trial Court after discussing the evidence, both oral and documentary, in extenso, on issue No. 3, came to the conclusion that the plaintiff had married Madan Mohan Panda of village Buanla. But then subsequently he lived with the defendant as a concubine or a kept mistress. On the basis of such conclusion, it was held that she was not entitled to any maintenance from the defendant. Answering the issue as to whether plaintiff was a tenant in the house of the defendant, the trial Court held that it could not be said that she was a tenant, and in fact she was staying in the house as a concubine of the defendant. The suit was thus dismissed on contest.
7. Being aggrieved, the plaintiff filed an appeal which was registered as S.J. Appeal No. 19/39 of 1997-2000 and was heard by the Additional District Judge, Balasore. In course of hearing of the appeal, a petition under Order 41, Rule 27, C.P.C. was filed by the appellant with a prayer to accept the certified copies of the order dated 30.10.1999 passed by the Civil Judge (Senior Division), Balasore in T.S. No. 489 of 1996-1, the amended plaint filed by the plaintiff in that Title Suit and the compromise petition dated 20.9.1999 filed in that Title Suit. It is submitted that the said documents are very much necessary for the just and proper decision of the appeal and due to certain inadvertent reasons, which were beyond the control of the plaintiff, the same could not be produced before the Court below in course of the time.
8. The defendant-respondent raised his objection and submitted that the documents tendered as additional evidence are tampered documents and have been created for the purpose of litigation and should not be accepted. The appellate Court dealt with the petition for additional evidence in the judgment itself and observed that the documents sought to be adduced as additional evidence were required for a just decision of the case and the allegation that the documents had been tampered with could be dealt with by the trial Court after giving proper opportunity to both the sides to adduce evidence in support of their contentions, the appellate Court allowed the petition for additional evidence, set aside the judgment and decree passed by the trial Court and remanded the suit to the trial Court with a direction to frame the following issues:
1. Whether the plaintiff is entitled to separate residence ? and
2. Whether a charge over immovable properties of the defendant is enforceable for the payment of maintenance to the plaintiff ?
It directed the Court below to grant adequate opportunity to both sides to adduce further evidence and dispose of the suit once again.
9. The defendant has challenged the said judgment in this Miscellaneous Appeal filed under Order 43, Rule 1(u), C.P.C. According to the appellant the appellate Court acted illegally in dealing with the petition filed under Order 43, Rule 1(u), C.P.C., in course of hearing of the appeal without discussing the same at an earlier stage. It is stated that none of the basic ingredients of Order 43, Rule 27, C.P.C. are satisfied in the present case and as such admitting the documents as additional evidence, was unjust and illegal. In the alternative it is argued that the appellate Court after allowing the petition for additional evidence, without setting aside the judgment, ought to have directed the Court below to take such additional evidence as necessary and sent the same for consideration by the appellate Court. In other words, the appellate Court lost sight of Order 41, Rules 28 and 29 C.P.C. and its judgment and decree cannot be sustained.
10. Mr. Mohapatra, learned Counsel appearing for the appellant submitted that the plaintiff is a woman of doubtful character. Her husband is still alive. She was only a tenant in a portion of the house belonging to the defendant and taking advantage of the old age and ailments of the defendant has cooked up a cock and bull story to grab his properties. The trial Court, it is submitted, has rightly appreciated all the facts and circumstances and after analyzing the evidence, both oral and documentary, has rightly come to the conclusion that the plaintiff never married the defendant and dismissed the suit for maintenance. The decision is just, proper and in consonance with the materials adduced and the appellate Court should not have interfered with the same.
11. This submission was strongly repudiated by Mr. Misra, learned Counsel appearing for the plaintiff-respondent. It is submitted that the documents sought to be introduced as additional evidence, are mostly authenticated documents being the judgment passed in an earlier suit, a compromise decree, the pleadings which would throw light on the true facts and would be very much necessary for a just and effectual decision of the inter se disputes and as such the appellate Court has rightly allowed the petition for adducing the additional evidence. It is further submitted that after allowing the petition as the defendants raised objection with regard to the genuineness of the documents, the appellate Court rightly remanded the matter to the Court below for fresh disposal after giving opportunity to the parties to adduce further evidence. Thus it is submitted that the judgment appealed against being not erroneous or in excess of the jurisdiction, the same may not be interfered with.
12. Heard learned Counsel for the parties at length. Order 41, Rule 27, C.P.C. stipulates that a party to an appeal may adduce additional evidence either oral or documentary, in the appellate Court in the following contingencies, i.e. if the Court from whose decree the appeal is preferred, has refused to admit evidence which ought to have been admitted, or the party seeking to produce additional evidence establishes before the appellate Court that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not be produced by him in course of trial of the suit in spite of exercise of due diligence and also if the appellate Court in course of hearing comes to the conclusion that the documents produced or witnesses sought to be examined are essential or necessary to enable it to pronounce the judgment. Apart from the aforesaid conditions, the Legislature in its wisdom has stipulated that if there is any other substantial cause, the appellate Court may allow the prayer to adduce additional evidence. Thus the law is well settled that additional evidence can be permitted if the Court is satisfied that to enable it to pronounce a judgment and/or for effectual adjudication of the dispute, and/or when such evidence has direct bearing on the issues involved. In other words, if the evidence sought to be adduced is found to be relevant to decide the real issue in controversy, or on application of mind, the appellate Court comes to the conclusion that interest of justice requires that the documents to be accepted as additional evidence, it can, in exercise of the power under Order 41, Rule 27, CPC entertain the documents as additional evidence. But then the evidentiary value of such documents or effect thereof would be considered with other evidence on record.
13. The submission of Mr. Mohapatra that the Court below ought to have decided the objection filed under Order 41, Rule 27 CPC independently. The law is well settled that if a petition under Order 41, Rule 27 CPC is filed, the appellate Court may postpone consideration of the said petition till hearing of the appeal and should take up the same at the time of hearing of the appeal on merits so as to find as to whether the documents and/or the evidence sought to be adduced have any relevance or bearing in the issues involved. See 1998 (II) OLR 129 Sukru Bibhar v. Tileswar Naik and Ors. The documents sought to be introduced in the present case being all materials on record and a judgment in an earlier suit and as the same having a bearing on the issues, to be decided by the Court, the appellate Court rightly came to the conclusion that the said documents were necessary for a just decision of the case. This Court, therefore, may not interfere with the said conclusion.
14. After allowing the petition for additional evidence, in view of the objections raised by the respondent to the effect that the documents were manipulated ones and created for the purpose of litigation and there were apparent tamperings of the same, the Court below has rightly remanded the matter to the trial Court so as to enable the defendants to adduce rebuttal evidence and/or to disprove the documents sought to be introduced as additional evidence if they were so advised. Mr. Mohapatra, however, taking exception to the order on the ground that instead of resorting to the provisions of Order 41, Rule 28 of the C.P.C. and directing the Court below to record further evidence, the appellate Court acted illegally in setting aside the judgment and decree and remanding the suit for de novo trial, that too after framing two more issues. Mr. Mohapatra submits that the said procedure was not justified in the facts and circumstances of the case.
15. To appreciate such submission, it would be prudent to refer to Order 41, Rules 28 and 29 of the C.P.C. which reads as follows:
28. Mode of taking additional evidence – Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court to take such evidence and to send it when taken to the Appellate Court.
29. Points to be defined and recorded – Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which evidence is to be confined, and record on its proceedings the points so specified.
16. It is no more res integra that once additional evidence is permitted to be produced at the appellate stage, it is necessary to grant opportunity to the contesting party to adduce rebuttal evidence, if so desired. Under such eventuality the appellate Court may exercise power under Order 41, Rule 28 of the C.P.C., and either record the evidence itself, or direct the Court below from whose order the appeal is preferred and/or any other Court to record evidence and send the same for being considered in the appeal. However, contingencies may arise when the additional evidence produced before the appellate Court which are accepted and the rebuttal evidence adduced, if considered along with other evidence already on record, the conclusions arrived at by the trial Court may be differed. A suit has to be decided on consideration of the evidence adduced in the case in entirety. Law is well settled that piece-meal trial should always be avoided. If the documents sought to be adduced as additional evidence go to the root of the case, and have great bearing on the issues to be decided, it would be just and proper to remand the matter for fresh disposal; of course after granting a party opportunity to adduce rebuttal evidence to substantiate its case and/or to disprove the other side’s case. In the case at hand, as the documents produced as additional evidence, go to the root of the matter, the appellate Court has rightly set aside the judgment and decree of the trial Court and remanded the suit to the trial Court for fresh disposal after giving opportunity to the defendants to adduce such evidence as may be deemed just. This Court notice no error apparent on the said direction and refuses to interfere with the matter.
17. The only other question which needs to be considered is as to whether the appellate Court was justified in framing two fresh issues, additional issues framed are only consequential questions and depend upon the answers to the issues already framed. Thus framing of two fresh issues by the appellate Court was not justified. Consequently this Court has no hesitation to set aside the direction of the appellate Court to the trial Court to frame the aforesaid two fresh issues.
18. The appeal is allowed in part. The direction issued by the appellate Court to frame two additional issues are set aside but the order remitting the matter back to the trial Court is upheld with a further direction that the trial Court shall confine further evidence only with regard to the additional documents produced before the appellate Court. The trial Court shall, after recording such other evidence as may be considered just and proper to be adduced by the defendants and considering the entire evidence both the oral as well as the documentary, available on record, dispose of the suit afresh. The suit is of the year 1994. Thirteen years have passed in the meanwhile. The trial Court is, therefore, directed to dispose of the suit as expeditiously as possible preferably within a period of six months.