Page No.# 1/8 GAHC010069152025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : CRP(IO)/116/2025 ON THE DEATH OF DURGA BHATRA HIS LEGAL HEIRS NAMELY DEBDAS BHATRA AND ORS S/O- LATE DURGA BHATRA, R/O- WILTON NO.8 LINE OF DIKOM TEA ESTATE, PO AND PS- DIKON, DISBRUGARH, ASSAM 2: DEBRAJ BHATRA S/O- LATE DURGA BHATRA R/O- WILTON NO.8 LINE OF DIKOM TEA ESTATE PO AND PS- DIKON DISBRUGARH ASSAM 3: BOBBY @ BOBITA BHATRA D/O- LATE DURGA BHATRA R/O- WILTON NO.8 LINE OF DIKOM TEA ESTATE PO AND PS- DIKON DISBRUGARH ASSAM 4: LOLLY @ LOLITA BHATRA D/O- LATE DURGA BHATRA R/O- WILTON NO.8 LINE OF DIKOM TEA ESTATE PO AND PS- DIKON DISBRUGARH ASSAM 5: JAGMOTI BHATRA D/O- LATE DURGA BHATRA R/O- WILTON NO.8 LINE OF DIKOM TEA ESTATE PO AND PS- DIKON DISBRUGARH ASSA VERSUS Page No.# 2/8 ROSSELL TEA LIMITED AND ORS A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT 1956 OWING AND MANAGING AMONG OTHERS DIKOM TEA ESTATE WITH ITS OUT GARDEN WILTON TEA ESTATE DIST DIBRUGARH WITH ITS LOCAL HEAD OFFICE AT DIKOM TEA ESTATE, PO AND PS- DIKOM, DIBRUGARH, ASSAM 2:ON THE DEATH OF ORIGINAL DEFENDANTG NO 1 SONPAT BHOTRA HIS LEGAL HEIRS NAMELY POCHMI BHOTRA D/O LT SONPAT BHOTRA R/O DIKOM TEA ESTATE WILTON DIVISION OF DIBRUGARH PO AND PS DIKOM DIST DIBRUGARH ASSAM 3:SERABONI BHOTRA D/O LT SONPAT BHOTRA R/O DIKOM TEA ESTATE WILTON DIVISION OF DIBRUGARH PO AND PS DIKOM DIST DIBRUGARH ASSAM 4:MAHANGI BHOTRA D/O LT SONPAT BHOTRA R/O DIKOM TEA ESTATE WILTON DIVISION OF DIBRUGARH PO AND PS DIKOM DIST DIBRUGARH ASSAM 5:MRS DOOTI D/O LT SONPAT BHOTRA R/O DIKOM TEA ESTATE WILTON DIVISION OF DIBRUGARH PO AND PS DIKOM DIST DIBRUGARH ASSA Advocate for the Petitioner : MR. P J SAIKIA, SR. ADV, MR. A K GUPTA,MR K J SAIKIA Advocate for the Respondent : FOR CAVEATOR, MR SISHIR DUTTA,MS S MOCHAHARI,MR. S DUTTA BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 10.04.2025 Heard Mr. P.J. Saikia, learned senior counsel assisted by Mr. A.K. Gupta, learned counsel for the petitioners and Mr. S. Dutta, learned senior counsel assisted by Mr. S. Dutta, learned counsel for the respondents. 2. In this petition, under Article 227 of the Constitution of India read with Section 151 of the CPC, the petitioners have put to challenge the correctness or otherwise of the order dated 03.01.2025, passed by the learned Page No.# 3/8 District Judge, Dibrugarh (appellate court herein after), in Title Appeal No. 13/2017. 3. The petitioners herein are aggrieved by the impugned order dated 03.01.2025, passed by the learned appellate court, in Title Appeal No. 13/2017, by which the learned appellate court had decided to call the competent authority of the plaintiffs as court witness, under Order 41 Rule 27(1)(b) of the CPC, for proper decision of the appeal and ends of justice. 4. Mr. Saikia, learned senior counsel appearing for the petitioners submits that the Order 41 Rule 27(2) of the CPC provides that whenever additional evidence is required to be produced, the court shall record the reason for its admission and herein this case, while the learned appellate court had decided to call the competent authority of the plaintiffs as court witness, under Order 41 Rule 27(1)(b) of the CPC, it has not assigned any reason except stating to clarify the matter. Mr. Saikia further submits that since no reason has been assigned as to why the additional evidence is required to be taken under Order 41 Rule 27(1)(b) of the CPC, the impugned order dated 03.01.2025, passed by the learned appellate court is illegal and arbitrary and therefore, it is contended to set it aside. 4.1. Mr. Saikia has referred following decisions to strengthen this submission:- (i) The Municipal Corporation of Greater Bombay vs. Lala Pancham and Others, reported in AIR 1965 SC 1008 and (ii) N. Kamalam (dead) and Another vs. Ayyaswamy and Another, reported in AIR 2001 SC 2802. Page No.# 4/8 5. On the other hand, Mr. Dutta, learned senior counsel appearing for the respondents has opposed the petition on the ground that this petition is premature and that while the learned appellate court opted for exercising its jurisdiction, under Order 41 Rule 27(1)(b) of the CPC, it has also assigned a reason, though not elaborately, but briefly. As such, the impugned order suffers from no infirmity or illegality and therefore, Mr. Dutta has contended to dismiss the petition. 6. Having heard the submissions of learned counsel for both the parties, I have carefully gone through the petition as well as the documents placed on record and also perused the impugned order dated 03.01.2025, passed by the learned appellate court, in Title Appeal No. 13/2017. 7. It appears that at the time of hearing of the appeal, the learned appellate court has framed one additional issue as under:- “Whether the plaintiff has locus standi to file this present suit?” 7.1. Thereafter, the learned appellate court observed that the learned counsel for the appellants/plaintiffs relied upon a decision of Hon’ble Supreme Court in the case of United Bank of India vs. Sh. Naresh Kumar and Others, reported in AIR 1997 SC 03 and thereafter, arrived at a conclusion that to clarify the matter of fact, in the light of additional issue and for proper adjudication of the appeal and for ends of justice, it is necessary to call the competent authority of the plaintiffs as court witness, under Order 41 Rule 27(1)(b) of the CPC. 8. It is to be noted here that the Order 41 Rule 27((2) of the CPC reveals that whenever additional evidence is required to be produced, the court Page No.# 5/8 shall record the reason for its admission. 9. A careful perusal of the impugned order dated 03.01.2025, indicates that the additional issue, so framed by the learned appellate court, related to locus standi of the plaintiff to file the suit and to substantiate the same, the plaintiff had relied upon decision of Naresh Kumar (Supra). And therefore, to clarify the matter, i.e. the locus standi of the plaintiff to file the suit, the learned appellate court had decided to call the competent authority of the plaintiffs as court witness, under Order 41 Rule 27(1)(b) of the CPC. 10. Thus, it cannot be said that no reason is recorded by the learned appellate court for calling the competent authority of the plaintiffs as court witness. It has decided to call the competent authority to clarify the matter of fact in the light of additional issue and for proper adjudication of the same and for ends of justice. 11. It is also to be noted here that though the word ‘shall’ is there in the Clause (2) of Order 41 Rule 27 of the CPC, but it does not makes it mandatory as has been held by Hon’ble Supreme Court in the case of K.Venkataramiah vs A. Seetharama Reddy & Ors, reported in 1963 AIR 1526. 12. In the said case, Hon’ble Supreme Court has dealt with the issue as under:- “It is contended before us on behalf of the appellant that the learned judges made the order mechanically without applying their minds to the requirements of Or. 41 r. 27 of the Code of Civil Procedure. Support for this contention is sought from the fact that the High Court did not record its reasons for the admission of Page No.# 6/8 the additional evidence as required by the second clause of the rule. The importance of this provision for recording of the reasons for admission of additional evidence has been emphasized in several cases (Vide., Sreemanchunder v. Gopalchunder [1866] 11 M.1.A. 28, Manmohan Das v. Mutsammat Ramdei (1931) 35 C.W.N, 925. It is very much to be desired that the courts of appeal should not overlook the provisions of cl. (2) of the Rule and should record their reasons for admitting additional evidence. We are not prepared, however, to accept the contention of the appellant that the omission to record the reason vitiates the admission of the evidence. Clearly, the object of the provision is to keep a clear record of what weighed with the appellate court in allowing the additional evidence to be produced-whether this was done on the ground (i) that the court appealed from had refused to admit evidence which ought to have been admitted, or (ii) it allowed it because it required it to enable it to pronounce judgment in the appeal or (iii) it allowed this for any other substantial cause. Where a further appeal lies from the decision of the appellate court such recording of the reasons is necessary and useful also to the court of further appeal for deciding whether the discretion under the rule has been judicially exercised by the court below. The omission to record the reason must therefore be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory. For, it does not seem reasonable to think that the legislature intended that even though in the circumstances of a particular case it could be definitely ascertained from the record why the appellate court allowed additional evidence and it is clear that the power was properly Page No.# 7/8 exercised within the limitation imposed by the first clause of the Rule all that should be set at naught merely because the provision in the second clause was not complied with. It may be mentioned that as early as 1885 when considering a similar provision in the corresponding section of the Code of 1882, viz., s. 586, the High Court of Calcutta held that this provision for recording reasons is merely directory and not imperative vide Gopal Singh v. Jhakri Rai reported in (1885) ILR 12 CAL 37. We are aware of no case in which the correctness of this view has been doubted. It is worth noticing that when the 1908 Code was framed and Or. 41 r. 27 took the place of the old section 568, the legislature was content to leave the provision as it was and did not think it necessary to say anything to make the requirement of recording reasons imperative. It is true that the word “shall" is used in R. 27 (2); but that by itself does not make it mandatory. We are therefore of opinion that the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission.” 13. I have carefully perused the case laws referred by Mr. Saikia, learned senior counsel appearing for the petitioners and in view of above discussion and finding, the same would not come into his assistance and therefore, detail discussion of the same is avoided. 14. Under the given facts and circumstances, the impugned order, to the considered opinion of this Court, suffers from no infirmity or illegality requiring any interference of this Court. 15. Accordingly, this petition stands dismissed. Page No.# 8/8 JUDGE Comparing Assistant