Ram Awatar Saraf Vs.
Bharat Petroleum Corp. Ltd.  INSC 1157 (16 July 2008)
JURISDICTION CIVIL APPEAL NO. 4559 OF 2008 (Arising out of S.L.P. (C)
No.19941/2007) Ram Awatar Saraf ... Appellant Versus Bharat Petroleum Corpn. Ltd.
..Respondent O R D E R Learned counsel for the respondent seeks leave of the
Court to withdraw application for impleadment of the State of West Bengal as
party respondent. I.A. No. 2 is dismissed as withdrawn.
This appeal is
directed against the judgment and order dated 13.12.2006 passed by a Division
Bench of the High Court of Calcutta in First Appeal No.204/2004 whereby and
whereunder,the judgment and decree passed by the Court below was set aside and
the matter was remanded to the trial Court for adduction of fresh evidence,
inter alia, on the premise that the question as to whether the rights of the
defendant as a tikha tenant in terms of the lease of 1950 stood extinguished in
view of the execution of the fresh lease of 1966, further evidence would be
necessary for the purpose of a proper adjudication.
Such a finding, as
has rightly been contended by Mr. Lalit, learned senior counsel appearing on
behalf of the appellant, does not satisfy the tests laid down under Order XLI
Rule-23 A of the Code of Civil Procedure.
The High Court in its
judgment did not say that a re-trial was necessary. As indicated hereinbefore
one of the issues in the suit was purported extinguishment of -1- the tikha
tenancy. For the adjudication of the said issue, the parties had adduced
evidence. Whether such evidence is sufficient for the purpose of determination
of the issue is a question which was required to be considered by the High
Court itself. We may, furthermore, notice that the respondent had filed a large
number of documents before us in support of its case. The said documents,
admittedly, had not been filed before the trial Court. Proper course, thus, which
could have been resorted to by the respondent, there for was to file an
application for adduction of additional evidence in terms of Order XLI Rule 27
of C.P.C. Had such an application was filed, it was for the High Court alone to
consider as to whether such evidence should be allowed or not.
The said procedure
having not been taken recourse to, we would not be in a position to determine
the issues between the parties finally at this stage.
We, therefore, set
aside the impugned judgment and remit the matter to the High Court for
consideration of the appeal afresh on merit.
In the event, the
respondent files an application for adduction of additional evidence, the same
may be considered on its own merits. We would request the High Court to
consider the desirability of disposing of the matter as expeditiously as
possible preferably within a period of three months from the date of
communication of this order.
The appeal is allowed
with the aforementioned observations and directions.
JOSEPH] New Delhi, July 16, 2008.