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2007(8) Supreme 168
Supreme Court of india
(From Andhra Pradesh High Court)
S.B. Sinha, H.S. Bedi, JJ.
K.R. Mohan Reddy — Appellant
versus
M/s Net Work Inc. Rep. TR. M.D. — Respondent
Civil Appeal No. 4588 of 2007
Decided on : 26-9-2007
Civil Procedure Code, 1908 — Order 41, Rule 27(1) Clause (aa) and clause (b) — Adduction of additional evidence in appeal — Conditions precedent — Conditions precedent for application of clause (aa) of sub-rule (1) of Rule 27 of Order 41 is different from that of clause (b) — In the event former is to be applied, it would be for the applicant to show that ingredients procedent mentioned therein are satisfied — In case of clause (b), the appellate court is bound to consider the entire evidence on record and come to an independent finding for arriving at a just decision, adduction of additional evidence as has been prayed for is necessary. (Para 18)
Facts of the case :
This appeal is directed against the judgment and order dated 20.9.2006 passed by Division Bench of Anhdra Pradesh High Court whereby application filed by respondent herein under Order 41, Rule 27 of CPC was allowed.
On 21.1.2002, a suit for recovery of Rs. 50,74,109/- along with interest @ 24% p.a. was filed by respondent herein on the basis of a cheque for Rs. 34,82,000/- issued by appellant in favour of respondent which was dishonored on presentation.
Appellant in his written statement, inter allia, asserted that the cheque had been obtained by it by fraud, forgery etc.
The trial court, without framing a specific issue with regard to the case of the appellant that the said cheque was outcome of fraud and forgery, dismissed the suit on various grounds including that there is a possibility that the cheque was dishonestly obtained.
Respondent preferred an appeal there against, where in an application under Order 41, Rule 27 of Code of Civil Procedure was filed on 22.3.2006. No notice was, however, issued in relation thereto. The said application came up for consideration along with the hearing of the appeal.
While disposing of main appeal, the High Court, inter alia, held that application for adduction of additional evidence filed by respondent herein should be allowed, the same being a requirement of court and/or was otherwise for substantial cause.
Hence this appeal.
Ld. Senior counsel for appellant, inter alia, submitted that respondent’s application being based on clause (aa) of sub-rule (1) of Rule 27 of Order 41 of C.P.C., the High Court committed a serious error in relying upon clause (b) thereof.
Findings of the Court :
Conditions precedent for application of clause (aa) of sub-rule (1) of Rule 27 of Order 41 is different from that of clause (b). In case of former, it would be for the applicant to show that the ingreadients or conditions precedent mentioned therein are satisfied while in the latter case. The appellate Court is bound to consider the entire evidence on record and come to an independent finding that for arriving at a just decision, adduction of additional evidence as prayed for was necessary.
The appellate court should not pass an order so as to patch up the weakness of the evidence of unsuccessful party before the trial court, but it will be different if the court itself requires the evidence to do justice between the parties.
Result : Appeal disposed off.
JUDGMENT
S.B.SINHA, J. —
1.Leave granted.
2.This appeal is directed against the judgment and order dated 20/9/2006 passed by a Division Bench of the Andhra Pradesh High Court in C.C.C.A. No. 253/2004 and the application for adduction of additional evidence marked as City Civil Court Appeal Misc. Petition No. 239 of 2006, whereby and whereunder the application filed by the respondent herein, purported to be under Order 41 Rule 27 of the Code of Civil Procedure was allowed.
3.The parties entered into a partnership. The said partnership was reconstituted on 1.7.1994. Plaintiff -respondent contended that pursuant to the reconstituted partnership deed, the appellant had handed over certain works to the respondent-firm for its execution. It is also not in dispute that the appellant herein retired as a partner from the said Firm. However, it has been contended that despite his retirement, the appellant had requested the respondent to continue the work allotted in his name so as to protect his turnover and continuation of his registration as a special class contractor. Further, the case of the respondent was that the appellant was to hand over the payment which he is supposed to receive in lieu of the Khammam Project. According to it upon settlement of accounts of Khammam Project, an amount of Rs. 34,82,000/- was found due and payable by the appellant to the respondent firm.
4.The contention of the respondent, on the other hand, is that in respect of construction of Minister’s quarter at Hyderabad, the appellant had paid. Rs. 8,00,000/- and Rs. 5,25,316/-. It claimed that a sum of Rs. 8,03,350/- was owing to it by the appellant in respect of the Vijayawada work.
5.According to the respondent, the appellant issued a cheque of Rs. 34,82,000/- in favour of the Firm in respect of Khammam Project along with a covering letter wherein the appellant assured the respondent that he would settle the accounts pertaining to the other two projects after finalizing the accounts with the department. The said cheque was dishonoured.
6.On the aforementioned premise, on or about 21.1.2002 a suit for recovery of Rs. 50,74,109/- along with the interest @ 24% per annum was filed by the respondent herein.
7.Appellant in his written statement, while denying and disputing the aforementioned contentions of the plaintiff-respondent, inter-alia, asserted that the cheque had been obtained by it by fraud, forgery and with the connivance of one Shri K. Ramesh Reddy and Mr. Y.S.Subramaniam, Managing Partner of the Respondent. It was also asserted by the appellant that he had retired from the partnership on 12.1.2000 and all the accounts between the parties were comprehensively settled which was also recorded in the deed of retirement.
8.The trial Court framed a general issue as to whether the plaintiffs are entitled to any relief and did not frame a specific issue with regard to the case of the appellant herein that the said cheque was an outcome of fraud and forgery. The learned trial Judge, however, dismissed the suit holding as under:
“i)Defendant admits assignment of Khammam & Vijayawada Projects to the petitioner.
(ii)Clause 8 of the retirement deed does not mention about pending work with the respondent and future dues payable.
(iii)Plaintiff did not file its accounts to prove that the plaintiff has executed the entire work at Khammam Hospital.
(iv)Pending disposal of the suit filed by the defendant against the plaintiff for recovery of the amounts paid to the plaintiff after retirement (7.6.2000 & 13.7.2000) on the ground that the same was by way of loan, it is difficult to take a view that the defendant has paid any money after his retirement towards the dues payable under the aforesaid transaction.
(v)There is a possibility that the cheque was dishonestly obtained.”
9.Respondent preferred an appeal there against. Indisputably, an application under Order XLI Rule 27 of Code of Civil Procedure was filed on 22.3.2006.
10.It, however, appears that no notice was issued in
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