Gauhati High Court
On The Death Of Abdul Rouf Borbhuiya vs On The Death Of Ibrahim Ali Borbhuiya on 18 May, 2026
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/18
GAHC010203202024
2026:GAU-AS:6866
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/458/2024
ON THE DEATH OF ABDUL ROUF BORBHUIYA, HIS LEGAL HEIRS AND
ORS
NAMELY
1.1: MD. MOIZ UDDIN BORBHUIYA
S/O LATE ABDUL ROUF BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-BOWARGHAT-788164
DIST-HAILAKANDI
ASSAM
1.2: MD. ALMOS UDDIN BORBHUIYA
S/O LATE ABDUL ROUF BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-BOWARGHAT-788164
DIST-HAILAKANDI
ASSAM
1.3: MD. JAMAL UDDIN BORBHUIYA
S/O LATE ABDUL ROUF BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-BOWARGHAT-788164
DIST-HAILAKANDI
ASSAM
1.4: MD. KAMRUL ISLAM BORBHUIYA
S/O LATE ABDUL ROUF BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-BOWARGHAT-788164
DIST-HAILAKANDI
Page No.# 2/18
ASSAM
1.5: MD. ABDUL MALIK BORBHUIYA
S/O LATE ABDUL ROUF BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-BOWARGHAT-788164
DIST-HAILAKANDI
ASSAM
2: MD. MASMAN ALI BORBHUIYA
S/O LATE ABDUL HAQUE BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-BOWARGHAT-788164
DIST-HAILAKANDI
ASSAM
3: MD. MAHIBUR RAHMAN BORBHUIYA
S/O LATE ABDUL HAQUE BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-BOWARGHAT-788164
DIST-HAILAKANDI
ASSAM
4: ON THE DEATH OF MD. ANAM UDDIN BORBHUIYA
HIS LEGAL HEIRS
NAMELY
4.1: MD. SHAMIM AHMED BORBHUIYA
S/O LATE ANAM UDDIN BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-BOWARGHAT-788164
DIST-HAILAKANDI
ASSAM
4.2: MD. AHMED RAZAL BORBHUIYA
S/O LATE ANAM UDDIN BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-BOWARGHAT-788164
DIST-HAILAKANDI
ASSAM
4.3: MD. SAKKID AHMED BORBHUIYA
S/O LATE ANAM UDDIN BORBHUIYA
Page No.# 3/18
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-BOWARGHAT-788164
DIST-HAILAKANDI
ASSAM
5: MD. ASKAR UDDIN BORBHUIYA
S/O LATE ABDUL ADUD BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-BOWARGHAT-788164
DIST-HAILAKANDI
ASSAM
6: MD. ZAKARIA BORBHUIYA
S/O LATE ABDUL HYE BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-BOWARGHAT-788164
DIST-HAILAKANDI
ASSAM
7: MD. SARIMUL ISLAM BORBHUIYA
S/O LATE ABDUL HYE BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-BOWARGHAT-788164
DIST-HAILAKANDI
ASSAM
8: MD. MOIZUL ISLAM BORBHUIYA
S/O LATE ABDUL HYE BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-BOWARGHAT-788164
DIST-HAILAKANDI
ASSA
VERSUS
ON THE DEATH OF IBRAHIM ALI BORBHUIYA, HIS LEGAL HEIRS AND
ORS.
NAMELY
1.1:ON THE DEATH OF ATIQUR RAHMAN BORBHUIYA
HIS LEGAL HEIRS
NA
Page No.# 4/18
1.1.1:Fateha Begum Barbhuiya
Wife of Late Atiqur Rahman Borbhuiya
1.1.2:Nasrin Sultana Barbhuiya
D/O Late Atiqur Rahman Borbhuiya
1.1.3:Azimun Nessa Barbhuiya
D/O Late Atiqur Rahman Borbhuiya
1.1.4:Nasim Uddin Barbhuiya
S/O Late Atiqur Rahman Borbhuiya
All residents of village Borbond
P.O. Borbond
District. Hailakandi
1.2:MOKLISUR RAHMAN BORBHUIYA
S/O LATE IBRAHIM ALI BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-HAILAKANDI
DIST- HAILAKANDI
ASSAM
1.3:SADIKUR RAHMAN BORBHUIYA
S/O LATE IBRAHIM ALI BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-HAILAKANDI
DIST- HAILAKANDI
ASSAM
1.4:BONIAMIN RAHMAN BORBHUIYA
S/O LATE IBRAHIM ALI BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-HAILAKANDI
DIST- HAILAKANDI
ASSAM
1.5:MEBUBUR RAHMAN BORBHUIYA
S/O LATE IBRAHIM ALI BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-HAILAKANDI
DIST- HAILAKANDI
ASSAM
1.6:MUSTT. JESMIN SULTANA BORBHUIYA
Page No.# 5/18
D/O LATE IBRAHIM ALI BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-HAILAKANDI
DIST- HAILAKANDI
ASSAM
1.7:MUSTT. SAHANAJ BEGUM BORBHUIYA
D/O LATE IBRAHIM ALI BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-HAILAKANDI
DIST- HAILAKANDI
ASSAM
1.8:MUSTT. TASMINA BEGUM BORBHUIYA
D/O LATE IBRAHIM ALI BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-HAILAKANDI
DIST- HAILAKANDI
ASSAM
1.9:MUSTT
MURSHIDA BEGUM BORBHUIYA
D/O LATE IBRAHIM ALI BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-HAILAKANDI
DIST- HAILAKANDI
ASSAM
2:ON THE DEATH OF KHAIRUNNESSA BORBHUIYA
HER LEGAL HIER
NAZIRA BEGUM
D/O KAHIRUNNESSA BORBHUIYA
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-HAILAKANDI
DIST- HAILAKANDI
ASSAM
3:ON THE DEATH OF FIROZA BEGUM
HER LEGAL HEIRS
NAMELY
3.1:ATABUR RAHMAN BORBHUIYA
S/O LATE FIROZA BEGUM
Page No.# 6/18
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-HAILAKANDI
DIST- HAILAKANDI
ASSAM
3.2:AJIJUR RAHMAN BORBHUIYA
S/O LATE FIROZA BEGUM
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-HAILAKANDI
DIST- HAILAKANDI
ASSAM
3.3:NAZIM UDDIN BORBHUIYA
S/O LATE FIROZA BEGUM
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-HAILAKANDI
DIST- HAILAKANDI
ASSAM
3.4:FORIZ UDDIN BORBHUIYA
S/O LATE FIROZA BEGUM
R/O VILL- BOWARGHAT PART-I
PORGONAH HAILAKANDI
P.O.-HAILAKANDI
DIST- HAILAKANDI
ASSAM
5:ON THE DEATH OF MONOJA BEGUM HER LEGAL HEIRS
NA
5.1:Badrul Haque Barbhuiya
S/O late Monoja Begum
Village Bowarghat Part-I
Porogona Hailakandi
PO- Bowarghat
District Hailakandi
788164
Assam
5.2:Taizul Haque Barbhuiya
S/O Late Monoja Begum
Village Bowarghat Part-I
Page No.# 7/18
Porogona Hailakandi
788164
Assam
5.3:Nurun Nessa
D/O Late Monoja Begum
Village Borbond
PO. Borbond
District. Hailakandi
7:Ayurun Nessa Borbhuiya
D/O late Faizul Haque Borbhuiya
village Bowarghat Part-I
Progona Hailakandi
PO. bowarghat
District Hailakandi
788164
Assam
8:Sakirul Islam Borbhuiya
S./O Late Faizul Haque Borbhuiya
village Bowarghat
part-I
Porogona Hailakandi
PO Bowarghat
District Hailakandi
788164
Assam
9:Basirul Islam Borbhuiya
S/O late Faizul Islam Borbhuiya
village Bowarghat Part-I
Porogona Hailakandi
PO. Bowarghat
District Hailakandi
788164
Assam
Respondent No. 6 To 8 all are legal heirs of Late Faizul Islam Borbhuiy
Advocate for the Petitioner : MR. N DHAR, MR B MALAKAR
Advocate for the Respondent : MR. S ROY (FOR CAVEATOR), MR. M H LASKAR,M. HOSSAIN
(FOR CAVEATOR),MR. M H LASKAR (FOR CAVEATOR)
Page No.# 8/18
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 18.05.2026
Heard Mr. N. Dhar, learned counsel for the petitioners. Also heard Mr.
P.K. Roy Choudhury, learned senior counsel, assisted by Mr. M.H. Laskar, learned
counsel for the respondents.
2. The petitioners are substituted petitioners nos. 2 to 8. In respect of
the substituted petitioner no. 1, it is presumed that they are the legal
representatives of defendant No. 10. However, as per the plaint, defendant No.
10 is Mohammad Abdul Rouf and not Mohammad Abdul Rouf Borbhuiyan.
3. By filing this application under Article 227 of the Constitution of India,
the petitioners have assailed the order dated 10.07.2024, passed by the learned
Additional District Judge, Hailakandi, in Misc (J) Case No. 13 of 2024, arising in
T.A. No. 3 of 2022. By the said order, notwithstanding the objection as to the
non-joinder of necessary parties, the plaintiffs/substituted plaintiffs were
allowed to lead additional evidence as contemplated under Order XLI Rule 27(b)
of the CPC.
4. The learned counsel for the petitioners has submitted that as the suit
was dismissed on the ground of non-joinder of necessary parties and the said
objection was taken again in the first appellate stage, the learned First Appellate
Court, instead of deciding the preliminary issue, allowed additional evidence to
be recorded, which is stated to be not in accordance with law.
Page No.# 9/18
5. It is further submitted that the suit was decreed and thereupon the
petitioners made a challenge before this Court and this Court by judgment
passed in RFA 87 of 2003, apart from other issues, directed that a further issue
as to whether the plaintiffs’ suit was maintainable in its present form be framed
and the entire suit be decided again. Accordingly, on remand, the proceedings
of Title Suit No. 13 of 1997 was decided afresh by judgment and order dated
05.09.2016, inter alia, dismissing the suit as certain persons were not joined as
defendants though they were co-sharers to the suit land.
6. Accordingly, in paragraph 6 of the judgment passed by the learned
trial Court, it was observed that in the present suit, Abdul Rashid and Abdul Bari
Barbhuiya, who were brothers and concerned with 20B-7K-10G land (Ext.6), and
Saibur Rahman Borbhuiya and Sofia Begum were not parties to the suit and
they were co-sharers of the suit land. Accordingly, they were held to be
necessary parties to the suit, which was held to be fatal. Accordingly, it was held
that it would be wrong to assess at this juncture that the plaintiffs have
acquired any right, title and interest over the land of suit pattas and by holding
that preliminary decree under Order XX Rule 18 CPC needs to be specific not
only to the share of the plaintiffs but also to the share of other co-sharers and
accordingly, answering the additional issue in the negative, the Court dismissed
the suit for partition. It may be mentioned that the issues framed in the said
suit were as follows:
1. Whether there is a cause of action for the plaintiffs’ suit?”
2. Whether the suit is barred by the law of adverse possession?”
3. Whether the suit is bad for mis-joinder and non-joinder of necessary parties?
4. Whether the suit is barred by the law of res-judicata in view of the judgment
passed by the Ld. Sub Judge, Cachar in T.S. No. 6/42 relating to the suit land?
Page No.# 10/18
5. Whether the plaintiff have acquired any right, title and interest on the land of
suit pattas with the sale deed No. 2162 dated 14/05/26 and 3683 dated
03/04/52?
6. Whether the plaintiff have got right, title and interest over 32B 7K 14Ch 9Go
3Ko 2Kr of land?
7. Whether the plaintiffs are entitled to get preliminary decree for partition of
the suit land as prayed for?
8. To what other relief, if any, the plaintiffs are entitled under the law and
equity?
Additional Issue No. 1:
1. Whether the plaintiff’s suit is maintainable in its present form?
7. In view of the nature of challenge made in this revision, it has not
been necessary to discuss all the issues as decided by the learned trial Court.
8. In the proceedings against the decree of dismissal passed in the suit,
initially RFA 63 of 2016 was preferred and in connection with the said appeal, an
application was filed under Order XLI Rule 27 read with Section 151 CPC for
allowing the applicants to adduce evidence to bring on record the specific
shares of the contesting defendants and the same was registered as Misc (J)
Case No. 13 of 2024 arising out of I.A. (Civil) 3379 of 2018 in RFA 63 of 2016.
9. This Court, by an order dated 17.09.2018, passed in the proceedings
of RFA 63 of 2016, observed that the said application shall be considered at the
stage of final hearing, allowing objection, if any, to be filed prior to the hearing
of the connected appeal. In course of time, due to enlargement of pecuniary
jurisdiction, the proceedings of RFA 63 of 2016 was transferred for disposal
before the Court of Additional District Judge, Hailakandi, where it was registered
as Title Appeal No. 3 of 2022. In connection with the said appeal, an application
Page No.# 11/18under Order XLI Rule 27, read with Section 151 CPC, was filed which was
registered as Misc. (J) Case No. 13 of 2024.
10. It may be stated that in support of the contention that the preliminary
issues were required to be decided first, the learned counsel for the petitioner
has cited the case of Kanakarathnammal v. Loganatha Mudaliar & Anr., AIR
1965 SC 271, decided by the Constitution Bench of the Supreme Court of India
and the case of Abdul Rahman v. Prasony Bai & Anr., (2003) 1 SCC 488.
11. In paragraph 15 of the decision of the case of Kanakarathnammal
(supra), it has been held that ordinarily a suit shall not be defeated by reason of
misjoinder or non-joinder of parties, but in the said case, the appellant despite
being informed that his brothers were not made parties to the suit, persisted in
the proceedings and accordingly it was held that the appellant before the
Supreme Court of India had taken a risk and it was too late to allow him to
rectify the mistake as he had ample opportunities to remedy his defect.
12. In paragraph 21 of the case of Abdul Rahman (supra), it has been held
that a suit can be disposed of on preliminary issues. Accordingly, it is submitted
that as non-joinder of necessary parties led to issues of maintainability of the
suit, the appeal being an extension of suit ought to have been decided on
preliminary issues first.
13. As regards the issue of additional evidence under Order XLI Rule 27 of
the CPC before the First Appellate Court, the learned counsel for the petitioner
has cited the case of Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC
247 and Nawab Burul Islam & Ors., v. Khagaru Sekh & Ors., (1991) 2 GLR 153.
Page No.# 12/18
14. In the case of Sanjay Kumar Singh (supra), it was held that ordinarily
the Court cannot take any evidence in appeal and the exception is Order XLI
Rule 27 CPC which enables the Appellate Court to take additional evidence in
exceptional circumstances and also held that one of the circumstances in which
the production of additional evidence under Order XLI Rule 27 CPC by the
Appellate Court is to be considered is whether or not the Appellate Court
requires the additional evidence so as to enable it to pronounce judgment or
any other substantial cause of a like nature.
15. In the case of Nawab Burul Islam (supra), it has been held that in a
series of decisions of the Privy Council and the Supreme Court of India, it has
been settled that additional evidence should not be permitted at the appellate
stage in order to enable one of the parties to remove certain lacuna in
presenting its case at a proper stage and to fill in gaps.
16. Per contra, the learned senior counsel for the respondent has
submitted that in the application for additional evidence, only the share of the
respective co-pattadars was identified which is only explanatory in nature and
therefore, there was no perversity on the part of the learned first Appellate
Court to allow recording of the additional evidence under Order XLI Rule 27
CPC.
17. In the considered opinion of this Court, the law relating to additional
evidence under Order XLI Rule 27 CPC has been laid down in the case of Union
of India vs. Ibrahim Uddin & Anr., (2012) 8 SCC 148 : (2012) 0 Supreme (SC)
465. In the said case, it has been laid down that as an exception to the normal
rule, the provision of Order XLI Rule 27 empowers the appellate Court to allow a
Page No.# 13/18
document to be produced and witness to be examined, providing that fresh
evidence cannot be introduced under this provision at the appellate stage, and if
the evidence available on record is sufficient for judgment, the provision of
Order XLI Rule 27 cannot be resorted to.
18. The conditions that exist for invoking Order XLI Rule 27 CPC have also
been laid down by holding that only if the appellate Court requires additional
evidence or where the evidence taken by the trial Court is so imperfect that a
satisfactory judgment cannot be passed on that basis, such evidence can be
recorded if additional evidence is required to be taken on record in order to
pronounce the judgment or for any other substantial cause.
“28. It is not the business of the Appellate Court to supplement the evidence adduced
by one party or the other in the lower Court. Hence, in the absence of satisfactory
reasons for the nonproduction of the evidence in the trial court, additional evidence
should not be admitted in appeal as a party guilty of remissness in the lower court is
not entitled to the indulgence of being allowed to give further evidence under this rule.
So a party who had ample opportunity to produce certain evidence in the lower court
but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide:
State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M.
Armugam & Ors., AIR 1969 SC 101).
29. The inadvertence of the party or his inability to understand the legal issues
involved or the wrong advice of a pleader or the negligence of a pleader or that the
party did not realise the importance of a document does not constitute a “substantial
cause” within the meaning of this rule. The mere fact that certain evidence is
important, is not in itself a sufficient ground for admitting that evidence in appeal.
30. The words “for any other substantial cause” must be read with the word “requires”
in the beginning of sentence, so that it is only where, for any other substantial cause,
the Appellate Court requires additional evidence, that this rule will apply, e.g., when
evidence has been taken by the lower Court so imperfectly that the Appellate Court
cannot pass a satisfactory judgment.
Page No.# 14/18
37. To sum up on the issue, it may be held that application for taking additional
evidence on record at a belated stage cannot be filed as a matter of right. The court
can consider such an application with circumspection, provided it is covered under
either of the prerequisite condition incorporated in the statutory provisions itself. The
discretion is to be exercised by the court judicially taking into consideration the
relevance of the document in respect of the issues involved in the case and the
circumstances under which such an evidence could not be led in the court below and
as to whether the applicant had prosecuted his case before the court below diligently
and as to whether such evidence is required to pronounce the judgment by the
appellate court. In case the court comes to the conclusion that the application filed
comes within the four corners of the statutory provisions itself, the evidence may be
taken on record, however, the court must record reasons as on what basis such an
application has been allowed. However, the application should not be moved at a
belated stage.
41. Thus, from the above, it is crystal clear that application for taking additional
evidence on record at an appellate stage, even if filed during the pendency of the
appeal, is to be heard at the time of final hearing of the appeal at a stage when after
appreciating the evidence on record, the court reaches the conclusion that additional
evidence was required to be taken on record in order to pronounce the judgment or
for any other substantial cause. In case, application for taking additional evidence on
record has been considered and allowed prior to the hearing of the appeal, the order
being a product of total and complete non-application of mind, as to whether such
evidence is required to be taken on record to pronounce the judgment or not, remains
inconsequential/inexecutable and is liable to be ignored.”
19. Accordingly, in the considered opinion of the Court, in order to find out
whether additional evidence could have been permitted by the learned First
Appellate Court in view of the ratio laid down in the case of Union of India vs.
Ibrahim Uddin (supra), the learned First Appellate Court, while deciding the
appeal, ought to have arrived at a conclusion that the additional evidence would
be required in order to pronounce the judgment and only on recording such
satisfaction, the additional evidence within the meaning of Order XLI Rule 27
CPC could have been ordered.
Page No.# 15/18
20. This Court, in its order dated 17.09.2018, passed in RFA 63 of 2016,
had considered the application made under Order XLI Rule 27, read with Section
151 CPC, to adduce additional evidence. However, this Court had deferred the
application for consideration at the stage of the final hearing.
21. In the proceedings of Title Appeal No. 3 of 2024 there is nothing on
record to show that there were any other steps to be taken in the said appeal
and as the appeal that was on board before the learned Additional District
Judge, was ready for hearing and the learned first appellate Court, gave its
reasons to allow introduction of additional evidence on the ground that the
learned trial Court had dismissed the suit, amongst others, on the ground that
the plaintiffs had failed to mention the specific share of the defendants/
respondents by providing the dag and the patta number as contemplated under
Order XX Rule 13 CPC, and having noticed that the plaintiffs have been fighting
in the Court for the last 27 years for a minor defect they were being deprived of
any concrete decision from the Courts of law and therefore, by holding that by
the intended additional evidence, the plaintiffs are not going to introduce any
new fact or evidence or new claim, it was held that the plaintiffs proposing to
furnish specific shares of the defendants/ respondents will assist the Court in
passing the judgment finally so that neither party will be prejudiced in any
manner and the dispute could be resolved finally. Accordingly, in view of the
ratio laid down in the case of Ibrahim Uddin (supra), the learned First Appellate
Court was within its power and authority to admit the application under Order
XLI Rule 27 for hearing.
22. In this case, the plaintiffs have impleaded as many as 296 defendants
and proforma defendants and in the plaint the shares of the various
Page No.# 16/18
shareholders are mentioned. Therefore, the petition for additional evidence
under Order XLI Rule 27 cannot be said to be an application to bring on record
any evidence which was hitherto not available before the learned trial Court as it
is only proposed to delineate the shares of various land holders. Therefore, the
order of the learned First Appellate Court cannot be held to be bad in view of
the findings recorded in the case of Sanjay Kumar Singh (supra), cited by the
learned counsel for the petitioner. Paragraph 7, on which reliance is placed, is
extracted below.
“7. It is true that the general principle is that the appellate court should not travel
outside the record of the lower court and cannot take any evidence in appeal.
However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take
additional evidence in exceptional circumstances. It may also be true that the
appellate court may permit additional evidence if the conditions laid down in this Rule
are found to exist and the parties are not entitled, as of right, to the admission of
such evidence. However, at the same time, where the additional evidence sought to
be adduced removes the cloud of doubt over the case and the evidence has a direct
and important bearing on the main issue in the suit and interest of justice clearly
renders it imperative that it may be allowed to be permitted on record, such
application may be allowed. Even, one of the circumstances in which the production
of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be
considered is, whether or not the appellate court requires the additional evidence so
as to enable it to pronounce judgment or for any other substantial cause of like
nature.”
23. From the above observations of the Supreme Court of India, it is noted
that where additional evidence sought to be adduced removes the cloud of
doubt over the case and the evidence has a direct and important bearing on the
main issue of the suit, the interest of justice clearly renders it imperative that it
may be allowed to be permitted on record. Therefore, in the present case in
hand, as only clarificatory evidence is sought to be introduced to determine the
shares of various shareholders of the land, the same appears to be permissible
Page No.# 17/18
in light of the case of Sanjay Kumar Singh (supra) cited by the learned counsel
for the petitioner.
24. In the case of Kanakarathnammal (supra), a probate of a will was
obtained and in the suit filed, the concerned respondent Nos. 1 and 2 had set
up a title in respect of the suit properties. However, the brothers were not
joined in the suit, and therefore, it was held that the suit was not maintainable
for non-joinder of necessary parties. The appellant’s claim was rejected because
she had failed to implead her two brothers in the suit and there were only three
legal claimants to the said property. In this case, though 297 defendants were
made defendants, by an additional evidence sought to be projected that all the
necessary parties who had interest in the suit land were joined. Therefore, the
application which has been allowed in this case is not found to be contrary to
the ratio laid down in the case of Kanakarathnammal (supra).
25. Coming to the case of Abdul Rahman (supra), the said decision is on
the point that when a suit can be disposed of on a preliminary issues, and it was
held that ordinarily suit should be decided on preliminary issues.
26. In the suit, all the evidence was before the learned trial Court and
therefore, all the eight issues and the additional issue No. 1 were decided on
merit. Therefore, in the considered opinion of the Court, this principle of
deciding an appeal on preliminary issues did not arise under the facts and
circumstances of the present case, as the issue which is being raised is whether
the suit and the appeal was bad for non-joinder of necessary parties. The
learned first appellate Court arrived at a finding that the additional evidence to
that effect would bring clarity on the point. Therefore, as the learned first
Page No.# 18/18
appellate Court had recorded its satisfaction for allowing the additional evidence
to be brought under Order XLI Rule 27, this Court would be slow in exercising
jurisdiction under Article 227 of the Constitution of India to substitute its view
over the considered decision of the learned First Appellate Court.
27. Resultantly, this revision fails and the same is dismissed. Parties are left
to bear their own costs.
28. Both appearing parties, who are duly represented by their respective
learned counsel shall appear before the learned Addl. District Judge, Hailakandi
on the next date fixed. However, if no date has been fixed or if the proceedings
of T.A. No. 3/2012 has been stayed, then the parties shall appear on
05.06.2026, and by producing a certified copy of this order, shall act in
accordance with any order that may be passed by the said learned Court.
29. The Registry shall also transmit a copy of this order by email to the
learned Addl. District Judge, Hailakandi for record.
JUDGE
Comparing Assistant
