IN THE GAUHATI HIGH COURT. Case No: RSA 132/2015

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1 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Case No: 1. Md. Alauddin, S/o Late Nazar Ali, 2. Mrs. Phulmati W/o Alauddin Both are resident of- Village:- Bamunbari, P.S.- Hajo, District:- Kamrup (R), Assam. -Versus- 1. Miss Farida Begum D/o Md. Barkat Ali, Village:- Borni, P.S.- Hajo, District:- Kamrup (R), Assam. Appellants... Respondent -BEFORE- HON BLE MR. JUSTICE N. CHAUDHURY For the Appellants : Mr. JI Borbhuiya Advocate For the Respondent : Date of Hearing : Date of delivery of Judgment and Order : Page 1 of 7

2 JUDGMENT AND ORDER (ORAL) Heard Mr. JI Borbhuiya, learned counsel for the appellants. 2. This second appeal has been preferred by the defendants of Money Suit No. 281/2010 of the Court of learned Munsiff No. 2 at Guwahati thereby challenging findings of the learned first appellate court. 3. The present respondent, as plaintiff, instituted money suit No. 281/2010 in the court of learned Munsiff No. 2, Kamrup at Guwahati stating that the defendants (who are appellants herein) borrowed a sum of Rs. 60,000/- from her on An agreement was signed in connection with the transaction whereby the defendants had declared that they would return the amount within a period of 2 months from the date of borrowing. But after two months, the defendants did not return the money for which plaintiff served a notice on them on After receipt of notice the defendants denied to have taken the aforesaid amount from the plaintiff and straightway refused to return the same. Accordingly, plaintiff became compelled to institute the suit for recovery of the sum of Rs. 60,000/- along with interest. 4. On being summoned, the defendants appeared and submitted written statement denying the averments made in the plaint. They specifically denied to have borrowed any amount from the plaintiff. It is further stated that the plaintiff had instituted a complaint case being C.R. Case No. 68/2008 in the court of learned Judicial Magistrate First Class at Hajo against the present defendants. In course of the proceeding, a talk of compromise was held between the plaintiff and the defendants and accordingly the defendants had handed over blank Page 2 of 7

3 signed documents for the preparation of agreement but the plaintiff converted the same into an agreement in the nature of hand note. The defendants, therefore, prayed that the suit be dismissed with cost. 5. Upon such rival contentions of the parties, the learned trial court framed as many as 4 issues and the same are quoted below:- i) Whether here is any cause of action for the suit? ii) Whether the defendants executed an agreement on ? iii) Whether the plaintiff is entitled to get a sum of Rs. 60,000/-? iv) To what relief/reliefs the parties are entitled? 6. Plaintiff examined 5 witnesses including herself whereas the defendants examined 3 witnesses. Upon consideration of the materials the learned trial court dismissed the suit by judgment and decree dated basically on the ground that the so called agreement dated was not exhibited by the plaintiff. The plaintiff challenged the judgment and decree before the learned first appellate court by preferring money appeal No. 1/2012. However, in course of pendency of the appeal, an application was filed by the plaintiff in the nature of Order XLI Rule 27 of the Code of Civil Procedure and thereby made a prayer for exhibiting the agreement dated as Ext. 1 by way of additional evidence. The learned trial court allowed the prayer and accordingly the document was exhibited. The defendants (appellants herein) were given the opportunity to cross examine the witness of the plaintiff on the document. After consideration of the materials including Ext. 1, the learned first appellate court allowed the appeal reversing the finding of the learned trial court and thereby Page 3 of 7

4 decreeing the suit of the plaintiff for recovery of Rs. 60,000/- along with interest at the rate of 18% per annum from the date of filing of the suit till realisation. This appellate judgment and decree dated has been called in question in the present second appeal. 7. Mr. JI Borbhuiya, learned counsel for the appellant, would argue that the learned first appellate court could not have permitted the plaintiff to mark the agreement dated as Ext. 1 at the appellate stage as the same amounted to filling up the lacunae. According to him, the learned trial court having dismissed the suit only on the ground that the plaintiff did not exhibit the agreement dated , allowing the application for additional evidence at appellate stage resulted in filling up the lacunae. 8. Order XLI Rule 27 of the Code of Civil Procedure prohibits leading of evidence at appellate stage. However, under proviso to this Rule, under three conditions adducing additional evidence at the appellate stage has been permitted. If a party wanted to adduce some evidence at relevant time but the same was not permitted by the trial court, in that event, document can be exhibited taking recourse to the provision of Order XLI Rule 27 of the Code of Civil Procedure. Similarly, if a document could not be adduced in appropriate stage as evidence in spite of due diligence, in that event also such a document can be permitted to be adduced as additional evidence. Apart from these two provisions, there is yet another exigency under Order XLI Rule 27 (b) of the Code of Civil Procedure which vests power and jurisdiction on appellate court to permit adducing of additional evidence at appellate stage if court is of the opinion that Page 4 of 7

5 adducing of such document is necessary for pronouncing judgment. An appellate court can also allow additional evidence at appellate stage for any other substantial cause. Having gone through the provision of Order XLI Rule 27 (b), it appears that appellate court has wide power under this provision. If an appellate court arrives at a finding that a piece of evidence is necessary for proper adjudication of the matter in dispute, in that event the first appellate court can take recourse to the provision of Order XLI Rule 27 (b) of the Code of Civil Procedure. Here in this case, the first appellate court had exercised the power and thereafter provided an opportunity to the defendants to cross examine the witness on the document. Admittedly, the appellants herein being respondents before the first appellate court enjoyed the opportunity of cross examining the plaintiff upon the additional evidence at appellate stage. The present appellants were not aggrieved when the learned court passed an order under Order XLI Rule 27 of the Code of Civil Procedure and accepted the position. Even thereafter they participated in the proceeding and cross examined the witness to see that the additional evidence led by the plaintiff is demolished. But after the judgment has been passed against them, the present appellants have turned around and have taken plea that allowing additional evidence at that stage was not permissible. 9. Mr. JI Borbhuiya, learned counsel for the appellants, further argues that plaintiff was duty bound to prove the transaction of Rs. 60,000/- as alleged in the plaint or in the Ext. 1. He further argue that Ext. 1 contains names of some witnesses who have not been examined in the appellate stage. But these Page 5 of 7

6 witnesses were examined at the trial stage. Be that as it may, prima facie, it appears that plaintiff instituted the suit for recovery of money on the basis of an agreement dated By that document the defendants allegedly assured of refunding the amount within two months from the date of borrowing. Thus this agreement is of the nature of a hand note. Under section 118 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the N.I. Act ) where such an instant is produced, a presumption is liable to be taken as to consideration, date, time of acceptance, time of transfer etc. until the contrary is proved. From perusal of the findings of the learned first appellate court it appears that defendants took a stand in written statement that the defendants had handed over signed blank papers to the plaintiff for the purpose of a criminal case. But having made such statement they did not lead any evidence to prove the same. If a hand note is produced in court, in that event until and unless the contrary is proved by the defendants, a presumption as to consideration of such instant has to be taken in favour of the plaintiff. The defendants not having led any evidence to establish the contrary, as claimed by them in the written statement, the learned first appellate court has not committed any error in decreeing the suit. This is in conformity with the provision of section 118 of the N.I. Act, The learned first appellate court has considered the evidence of the both sides. The learned court found that before institution of the suit, plaintiff served a legal notice to the defendants for recovery of the said amount which was denied by the defendants but they did not make any mention is the reply notice Page 6 of 7

7 as to manufacture of stamp paper as alleged in the present case. Under such circumstances, the learned first appellate court held that such a defence might have been an afterthought. The learned first appellate court also found relevant discrepancy in the evidence of DW 1 and DW 2 in regard to signature appearing on Ext. 1. When it is the pleaded case of the defendants that they signed the document for a different purpose, the DW 2 denied her signature in course of her evidence. Further in course of cross examination, DW 1 stated that blank stamp paper upon which he had put his signature is not the stamp paper upon which the agreement dated is written. Thus, considering the entirety of the evidence of both sides i.e. PWs as well as the DWs, the learned first appellate court held the view that defendants had taken Rs. 60,000/- from the plaintiff undertaking to refund the same within a period of 2 (two) months along with interest at the rate of 18% per annum. Accordingly, the suit was decreed by reversing the trial court judgment. These findings of facts have not been challenged to be perverse. Considering such position of facts, no substantial question of law does arise in the present appeal. Accordingly, the second appeal cannot be admitted. It is dismissed. 10. No order as to costs. BiswaS JUDGE Page 7 of 7

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