NORTH EASTERN RAILWAY ADMINISTRATION, GORAKHPURversusBHAGWAN DAS (D) BY LRS.

                         [2008] 6 S.C.R. 416


A        NORTH EASTERN RAILWAY ADMINISTRATION,
                         GORAKHPUR
                              v.
                BHAGWAN DAS (D) BY LRS.
               (Civil Appeal No. 2785 of 2008)
B                         APRIL 11, 2008
                [S.B. SINHA AND D.K. JAIN, JJ.)

        Code of Civil Procedure, 1908 - s. 107, 0. 6 r. 17 and 0.
c 41 r. 27 -Amendment of pleadings and production of additional
  document - At the stage of second appeal - Permissibility -
  Held : Amendment of pleadings is permissible at appellate
  stage - It can be denied if it causes the other party an injury
  which could not be compensated in costs - The general rule
D is that additional evidence is not admissible at appellate stage
  - However s. 107 provides exception to the general rule,
  whereby appellate court is enabled to admit additional
  evidence subject to the conditions and limitations provided
  under 0. 41 r. 27 - On the facts of the case, High Court was
  required to consider the applications for amendment and for
E production of additional evidence - Matter remitted to High
  Court.
       Respondent filed a suit against the appellant, seeking
  to restrain them from interfering with his possession of
F the suit land. Appellant contended that the land had been
  transferred to them, after acquisition thereof. Trial Court
  decreed the suit holding that the plaintiff-respondent was
  the 'Bhumidhar' and in possession of the land and the
  possession of the defendant-appellant was not proved.
  Decree was confirmed by first appellate court. In second
G appeal, the appellant took the plea that the respondent
  had obtained the decree by concealing material facts.
  According to the official records the predecessors of the
  respondent were not but 'Bhumidar' thereof, and the State
  Government was the co-owner of the land; that the land
H                             416
     NORTH EASTERN RAILWAY ADMN., GORAKHPUR v.              417
              BHAGWAN DAS (D) BY LRS.

     had been transferred to the appellant by the predecessor A
     of the respondent, and compensation in lieu thereof had
     been paid to him; that respondent's predecessor had also
     moved an application for deletion of his name from
     revenue records; and that Bhumidari Sanad had been
     obtained by the respondent's predecessor fraudulently. B
     Appellant moved application under 0. 41 r. 27 C.P.C. for
-~   production of additional evidence. They also filed
     application under 0. 6 r. 17 seeking amendment of Written
     Statement. High Court dismissed the application under
     0.6 r. 17 holding that such application was not              c
     entertainable in second appeal. Appeal was also
     dismissed holding that no substantial question of law
     arose for consideration. An application for review was also
     dismissed. Hence the present appeal.
          Allowing the appeal, the Court                          D
          HELD : 1.1 Though the general rule is that ordinarily
     the appellate court should not travel outside the record
     of the lower court and additional evidence, whether oral
     or documentary, is not admitted, but Section 107 C.P.C.,
     which carves out an exception to the general rule,           E
     enables an appellate court to take additional evidence
     or to require such evidence to be taken subject to such
     conditions and limitations as may be prescribed. These
     conditions are prescribed under Order 41 Rule 27 C.P.C.
     [Para 12] [423-8, CJ                                         F
           1.2 Under clause (b) of sub rule (1) of Rule 27 Order
     41 C.P.C., evidence may be admitted by an appellate
     authority if it 'requires' to enable it to pronounce judgment
     'or for any other substantial cause'. The question whether G
     looking into the documents, sought to be filed as
     additional evidence, would be necessary to pronounce
     judgment in a more satisfactory manner, has to be
     considered by the court at the time of hearing of the appeal
     on merits. [Paras 13 and 14] [423-G; 424-A, G; 425-A]
                                                                   H
    418      SUPREME COURT REPORTS               [2008] 6 S.C.R.


A        K. Venkataramaiah v. A. Seetharamareddy and Ors. 1963
    (2) SCR 53- followed.
         Parsotim Thakur and Ors. v. Lal Mohar Thakur and Ors.
    AIR 1931 PC 143 - relied on.
B        1.3 Order 6 Rule 17 C.P.C. postulates amendment of
    pleadings at any stage of the proceedings. All
    amendments ought to be allowed which satisfy the two
    conditions: (a) of not working injustice to the other side,
    and (b) of being necessary for the purpose of determining
c   the real questions in controversy between the parties.
    Amendments should be refused only where the other
    party cannot be placed in the same position as if the
    pleading had been originally correct, but the amendment
    would cause him an injury which could not be
    compensated in costs. [Para 15] [425-8, C, DJ
0
        Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil
    and Ors. AIR 1957 SC 363- relied on
       Gajanan Jaikishan Joshi v. Prabhakar Mohan/a/ Ka/war
E (1990) 1 SCC 166 - referred to.
       1.4 High Court has altogether failed to consider the
  application filed by the appellant under Order 41 Rule 27
  C.P.C. Even the application under Order 6 Rule 17 C.P.C.
  has not been dealt with in its correct perspective and the
F High Court was in error in rejecting the same on the sole
  ground that such an application was not maintainable at
  the stage of second appeal. [Para 11] [422-H; 423-A]
       1.5 The High Court did not examine the record of the
  case with the thoroughness which was expected at the
G time of disposal of the pending applications. High Court
  was not even aware of the pendency of the application
  under Order 41 Rule 27 C.P.C. seeking leave to adduce
  additional evidence. A perusal of the documents, which
  came to light pursuant to the directions given by the High
H Court, prima facie, goes to show that these are likely to
 NORTH EASTERN RAILWAY ADMN., GORAKHPUR v.                 419
    BHAGWAN DAS (D) BY LRS. [D.K. JAIN, J.]

widely affect the decision of the Court in one way or the A
other. If the stand of the appellant, which, according to
them, is borne out from the documents now on record, is
found to be correct, then obviously these will have material
bearing on the core issue, namely, whether the decree is
a nullity, having been allegedly obtained by concealing B
material facts and playing fraud on the Court. It is trite that
a judgment or decree by the first court or by the highest
court - obtained by playing fraud on the Court' is a nullity
and non est in the eyes of law. The High Court was bound
to consider the application before taking up the appeal . C
[Para 17] [425-E, F, G; 426-A, 8, CJ
      S.P Chengalvaraya Naidu v. Jagannath 1994 (1) SCC
1; India Household and Healthcare Ltd. v. LG Household and
Healthcare Ltd. (2007) 5 SCC 512 - referred to.
     1.6 High Court is directed to take a fresh decision on D
the applications preferred by the appellant under Order
41 Rule 27 and Order 6 Rule 17 C.P.C. and thereafter form
its opinion afresh on the merits of the second appeal.
[Para 18] [426-E-F]
                                                                  E
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2785 of 2008.
     From the Judgment dated 17.7.2002 of the High Court of
Uttranchal at Nainital in S.A. No. 8/2002.
     V. Shekhar, Shilpa Singh, B.K. Prasad and Abhigya (for       F
D.S. Mahra) for the Appellant.
    Anurag Sharma, Prashant Kumar, Arjun Bansal (for MIS.
AP & J Chambers) and Jitendra Mohan Sharma for the
Respondents.                                                      G
     The Judgment of the Court was delivered by
     D.K. JAIN, J. 1. Leave granted.
     2. This appeal by North Eastern Railway Administration
arises ou·t of orders dated 17th July, 2002 and 14th June, 2005   H
    420       SUPREME COURT REPORTS                   [2008] 6 S.C.R.
                                                                              j
A passed by the High Court of Uttaranchal. By the first impugned
  order, the second appeal, preferred by the appellant, was              "'
  dismissed on the ground that no substantial question of law
  arose for consideration of the Court. By the same order, the
  High Court has dismissed one of the applications' filed by the
B appellant under Order 6 Rule 17 of the Code of Civil Procedure,
  1908 (for short 'C.P.C.'), seeking leave to amend the written
  statement, on the ground that such an application cannot be             ~

  entertained in the second appeal. An application preferred by
  the appellant for review of order dated 17th July, 2002 has been
c dismissed vide latter order dated 14th June, 2005.
         3. In order to appreciate the issue, requiring determination,
    a few material facts may be stated:
        The respondent herein instituted a suit for perpetual
  prohibitory injunction against the appellant herein, restraining
D
  them from interfering in his possession and cultivation of crop
  on plot bearing Nos.129 and 131 situated in village Bhajanpura,
  Tehsil and District Champawat. The suit was contested by the
  appellant on the ground that after acquisition, the suit land had
  been transferred to them by the Government.
E
        4. Vide order dated 13th March, 2001, the Trial Court
  decreed the suit, inter alia, holding that the respondent is a
  Bhumidar and in possession of the suit land and the transfer of
  possession by the U.P. Government to the appellant was not
F proved. Against the said decree, the appellant filed appeal
  before the District Judge, which was dismissed vide order dated
   13th November, 2001.
        5. Being aggrieved, the appellant preferred second appeal
  before the High Court. Alleging that the respondent had obtained
G the decree by concealing material facts, it was averred that, as
  per the official records, the name of Kanhai, grandfather of the
  respondent, was entered as Maurnsin Khasikar in Varg-2 at
  Zaman 8 in the revenue record, which showed that he was simply
  a Pattedar, while the State of U.P. was its owner. It was pleaded
H that vide government order dated 1sth June, 1969 the suit land
      NORTH EASTERN RAILWAY ADMN., GORAKHPUR v.                    421
         BHAGWAN DAS (D) BY LRS. [D.K. JAIN, J]

     (3.615 acres) was ordered to be transferred to the appellant on A
     deposit of Rs.4855.60p. In pursuance of the said order, the
     appellant deposited the money and took possession of the land
     in question from Kanhai, who had not only received Rs.201.56p
     as compensation from the government, he had delivered the
     possession of the land to the appellant and had also moved an B
     application to Tehsildar Khatima for deleting his name from the
 ;
     revenue records. He also gave a statement to the effect that he
     was not in possession of the land and, therefore, since October,
     1971 the appellant had become the owner in possession of the
     land. !twas also stated that since the State of U.P. was the owner
     of the land, there was no question of acquiring it by issuing
                                                                           c
     notifications under Sections 4 and 6 of the Land Acquisition
     Act, 1894. It was also alleged that Kanhai had fraudulently,
     without getting any notice issued either tc:> the State of U.P. or to
     the appellant, obtained the Bhumidhari Sanad in the month of
     December, 1971, although prior to that period he had already D
~
     surrendered possession of the land and was not in possession
     thereof. !twas, thus, pleaded that Sanad having been obtained
     by playing fraud, it was null and void and could not create any
     right or title in favour of Kanhai. Subsequently, in support of the
     said pleas and contentions, in order to bring on record the copies E
     of the official records, the appellant moved an application under
     Order 41 Rule 27 C.P.C., before the High Court on 3rd April,
     2002.
           6. Vide order dated 3rd April, 2002, the High Court directed
     the Collector, Nainital to produce the notification under which F
~-
     the suit land had been acquired. Pursuant thereto, the Collector
     filed a detailed report, inter alia, pointing out that since the land
     belonged to the government, there was no question of issue of
     any notification under the Land Acquisition Act, 1894 and,
     therefore, the notification/ declaration under Sections 4 and 6 G
     of the Land Acquisition Act, 1894 could not be produced. It was
     also pointed out that a sum of Rs.201.56p had been paid to
     Kanhai as compensation. However, the High Court without even
     referring to the report of the Collector, which, in fact, had been
     submitted pursuant to the direction issued by it, dismissed the H
    422      SUPREME COURT REPORTS                  [2008] 6 S.C.R.

                                                                       ~
A second appeal, on the afore-stated ground.
         7. Aggrieved, the appellant moved an application seeking
    review of order dated 17th July, 2002, on the ground that some
    material facts had escaped the attention of the Court while
    passing the order dated 17th July, 2002.
B
         8. During the pendency of the review application, two more
    applications were filed by the appellant on 24th March, 2003
    and 29th June, 2004 seeking permission to urge additional
    grounds in support of the amendment application as well as the
    review application. As noted above, the review application was
c   also dismissed.
        9. Mr. V. Shekhar, learned senior counsel appearing on
  behalf of the appellant has vehemently contended that apart from
  the fact that the High Court has failed to even take note of the
D application filed by the appellant under Order 41 Rule 27 C.P.C.,
  it has committed grave error in rejecting the amendment
  application on the ground of its maintainability at the stage of
  the second appeal. The submission is that sine? the respondent
  has obtained the decree by concealing material facts, the decree
E is a nullity and, therefore, non consideration of the additional
  material placed on record, has resulted in grave miscarriage of
  justice. It is asserted that had the application been allowed, the
  additional evidence brought on record by the appellant, which
  was nothing but a part of the official record, would have exposed
  the fraud played by the respondent and in any case, would have
F made material difference in the finding recorded by the lower
  courts. To buttress the argument, learned counsel has referred
  us to various documents placed on record by the appellant.
        10. Per contra, learned counsel for the respondent while
G sur;iorting the order passed by the High Court has submitted
  that the appellant cannot be permitted to fill up the lacuna by
  adducing additional evidence at this belated stage.
       11. We have considered the submissions of the learned           >-
  counsel in the light of the documents on record. We are
H constrained to observe that the High Court has altogether failed
                 NORTH EASTERN RAILWAY ADMN., GORAKHPUR v.                    423
                    BHAGWAN DAS (D) BY LRS. [D.K. JAIN, J.]
          ...
                to consider the application filed by the appellant under Order A
                41 Rule 27 C.P.C. We also feel that even the application under
                Order 6 Rule 17 C.P.C. has not been dealt with in its correct
                perspective and the High Court was in error in rejecting the same
                on the sole ground that such an application was not maintainable
                at the stage of second appeal.                                    B
      t               12. Though the general rule is that ordinarily the appellate
                court should not travel outside the record of the lower court and
                additional evidence, whether oral or documentary is not admitted
                but Section 107 C.P.C., which carves out an exception to the
                general rule, enables an appellate court to take additional         c
                evidence or to require such evidence to be taken subject to
                such conditions and limitations as may be prescribed. These
                conditions are prescribed under Order 41 Rule 27 C.P.C.
                Nevertheless, the additional evidence can be admitted only when
                the circumstances as stipulated in the said rule are found to D
...             exist. The circumstances under which additional evidence can
                be adduced are :
                     (i) the court from whose decree the appeal is preferred
                     has refused to admit evidence which ought to have been
                     admitted, (clause (a) of sub rule (1)) or                      E
                     (ii) the party seeking to produce additional evidence,
                     establishes that notwithstanding the exercise of due
                     diligence, such evidence was not within the knowledge or
                     could not, after the exercise of due diligence, be produced
                     by him at the time when the decree appealed against was        F
"                    passed, (clause aa, inserted by Act 104 of 1976) or
                     (iii) the appellate court requires any document to be
                     produced or any witness to be examined to enable it to
                     pronounce judgment, or for any other substantial cause. G
                     (clause (b) of sub rule (1 )).

      -4              13. It is plain that under clause (b) of sub rule (1) of Rule 27
                Order 41 C.P.C., with which we are concerned in the instant
                case, evidence may be admitted by an appellate authority if it
                'requires' to enable it to pronounce judgment 'or for any other H
    424          SUPREME COURT REPORTS                     [2008] 6 S.C. R.


A substantial cause'. The scope of the rule, in particular of clause
  (b) was examined way back in 1931 by the Privy Council in
  Parsotim Thakur & Ors. Vs. Lal Mohar Thakur & Ors. 1 .
  While observing that the provisions of Section 107 as elucidated
  by Order 41 Rule 27 are clearly not intended to allow litigant,
B who has been unsuccessful in the lower court, to patch up the
  weak parts of his case and fill up omissions in the court of
  appeal, it was observed as follows:

            "Under Cl. (1) (b) it is only where the appellate Court
            'requires' it, (i.e., finds it needful) that additional evidence
C           can be admitted. It may be required to enable the Court
            to pronounce judgment or for any other substantial cause,
            but in either case it must be the Court that requires it. This
            is the plain grammatical reading of the sub-clause. The
            legitimate occasion for the exercise of this discretion is
o           not whenever before the appeal is heard a party applies
            to adduce fresh evidence, but 'when on examining the
            evidence as it stands some inherent lacuna or defect
            becomes apparent."
        14. Again in K. Venkataramiah Vs. A. Seetharama
E Reddy & Ors. 2 a Constitution Bench of this Court while
  reiterating the afore-noted observations in Parsotim's case
  (supra), pointed out that the appellate court has the power to
  allow additional evidence not only if it requires such evidence
  'to enable it to pronounce judgment' but also for 'any other
F substantial cause'. There may well be cases where even though
  the court finds that it is able to pronounce judgment on the state
  of the record as it is, and so, it cannot strictly say that it requires
  additional evidence 'to enable it to pronounce judgment', it still
  considers that in the interest of justice something which remains
G obscure should be filled up so that it can pronounce its judgment
  in a more satisfactory manner. Thus, the question whether
  looking into the documents, sought to be filed as additional
  evidence, would be necessary to pronounce judgment in a more
    1
        A.l.R. 1931 P.C. 143
    2
H       [1963] 2 S.C.R 35
    NORTH EASTERN RAILWAY ADMN., GORAKHPUR v.                  425
       BHAGWAN DAS (D) BY LRS. [D.K. JAIN, J.]

satisfactory manner, has to be considered by the Court at the         A
time of hearing of the appeal on merits.
      15. Insofar as the principles which govern the question of
granting or disallowing amendments under Order 6 Rule 17
C.P.C. (as it stood at the relevant time) are concerned, these
are also well settled. Order 6 Rule 17 C.P.C. postulates 8
amendment of pleadings at any stage of the proceedings. In
Pirgonda Hongonda Patil Vs. Kalgonda Shidgonda Patil &
Ors. 3 which still holds the field, it was held that all amendments
ought to be allowed which satisfy the two conditions: (a) of not
working injustice to the other side, and (b) of being necessary C
for the purpose of determining the real questions in controversy
between the parties. Amendments should be refused only where
the other party cannot be placed in the same position as if the·
pleading had been originally correct, but the amendment would
cause him an injury which could not be compensated in costs. D
(Also see: Gajanan Jaikishan Joshi Vs. Prabhakar
Mohan/al Kalwar4)
        16. These are the broad principles to be kept in view while
dealing with applications under Order 41 Rule 27 and Order 6          E
Rule 17 C.P.C.
       17. It is manifest that in the present case, the High Court
did not examine the record of the case with the thoroughness
which was expected at the time of disposal of the pending
applications. On a perusal of the impugned decisions, it is clear F
that the High Court was not even aware of the pendency of the
application under Order 41 Rule 27 C.P.C. seeking leave to
adduce additional evidence. A perusal of the documents, which
came to light pursuant to the directions given by the High Court
on 3rd April, 2002, prima facie, goes to show that these are G
likely to widely affect the decision of the Court in one way or the
other. If the stand of the appellant, which, according to them, is
borne out from the documents now on record, is found to be
3
    AIR 1957 SC 363
4
    (1990) 1 sec 166                                                  H
    426       SUPREME COURT REPORTS                   (2008] 6 S.C.R.


A correct, then obviously these will have material bearing on the
  core issue, namely, whether the decree dated 13th March, 2001
  is a nullity, having been allegedly obtained by concealing material
  facts and playing fraud on the Court. It is trite that a judgment or
  decree by the first court or by the highest court - obtained by
B playing fraud on the Court is a nullity and non est in the eyes of
  law. (See S.P. Chengalvaraya Naidu Vs. Jagannath 5 and
  India Household and Healthcare Ltd. Vs. LG Household &
  Healthcare Ltd.) 6 . In any event, had the Court found the
  additional documents, sought to be admitted, necessary to
C pronounce the judgment in the appeal, in a more satisfactory
  manner, it would have allowed the application and, if not, the
  application would have been dismissed. Nonetheless, it was
  bound to consider the application before taking up the appeal.
  We say no more at this stage, as the aforementioned
  applications are yet to be considered by the High Court on merits
D in the light of the legal position, briefly set out hereinabove. In
  view of the afore-noted factual scenario, we are of the opinion
  that the impugned judgment and the orders are erroneous and
  cannot be sustained.
E       18. In the result, the appeal is allowed and the judgment
  and orders dated 17th July, 2002 and 14th June, 2005 are set
  aside. The matter is remitted back to the High Court, which shall,
  after hearing the parties, take a fresh decision on the applications
  preferred by the appellant under Order 41 Rule 27 and Order 6
  Rule 17C.P.C. and thereafter form its opinion afresh on the merits
F of the second appeal. We may clarify that we have not expressed
  any final opinion on the merits of the second appeal as well as
  the applications, which shall be considered and disposed of by
  the High Court on their own merit in accordance with law.
G        19. The appeal stands disposed of accordingly leaving
    the parties to bear their own costs.
    K.K.T.                                          Appeal allowed.

    s (1994) 1sec1
H s (2007J s sec s12