(Arun Mishra and Amitava Roy, JJ.)
Chandreshwar Bhuthnath Devasthan ____________________ Appellant
v.
Baboy Matiram Varenkar ____________________________ Respondent
Civil Appeal No(s). 3532 of 2008, decided on May 2, 2017
The Order of the court was delivered by
Order
1. Heard learned counsel for the parties.
2. The appeal has been preferred against the judgment and order passed by the High Court of Bombay at Goa, Panaji, Goa in Second Appeal No. 100 of 2005. The plaintiffs filed a suit against Devasthan for issuance of permanent injunction from disturbing his possession and other co-owners in respect to the suit property comprised in survey no. 160/0 of Mulem Village of Salcete Taluka.
3. The plaintiff came with the case that he was co-owner of the suit property along with family members. Property was known as “Sainolem” which was predominantly paddy land in hilly tract. Devasthan had illegally created obstruction. The defendant filed its written statement and set up its own ownership. The suit was decreed by the trial court. The first appeal preferred by Devasthan had been dismissed by the first appellate court. Second appeal also met the same fate. Hence the appeal.
4. The defendant in support of the title had filed certain documents in Portuguese language in trial court which had been exhibited as ‘Exhibit E’. The English translation of the said document was submitted before the First appellate court. The first appellate court in para 43 of its judgment observed that there was no application filed under the provisions of Order XLI Rule 27 of the Code of Civil Procedure, 1908 (in short ‘the CPC’) for producing the additional translation of the original document. As such translation could not be taken on record prayer had been disallowed for taking english version on record. High Court had also approved the aforesaid view and dismissed the second appeal on the ground that the prayer should have been made under Order XLI Rule 27 of the CPC to take the translated document on record. In the absence of the application the document could not have been taken on record.
5. We have heard learned counsel for the parties at length. We are of the considered opinion that when the document had been tendered in evidence in Portuguese language, at the time it was not objected. Its translated version into English language could have been filed before the court any time, there was no requirement to file an application for production of the additional evidence under the provisions of Order XLI Rule 27 of the CPC which deals with the production of additional evidence in the appellate court. The document in question in Portuguese language had already been marked as Exhibit E Before the trial court thus it was not a case of additional evidence being adduced. Only translated version of the document was filed. Original was already on record, thus provisions contained under Order XLI Rule 27 of the CPC was not attracted at all. The first appellate court as well as the High Court had committed grave error in law in not considering the document for not filing an application to take additional evidence on record. The translated version of the already filed document could not be said to be constituting additional evidence as the original document was already on record of the trial court. It was thus in order to facilitate the just decision of the matter and to enable the court to read the document its translated version had been filed which ought to have been taken on record without any demur by the court below. Interest of justice required it to be taken on record being document recording title. Thus the approach of the first appellate court as well as the High Court was palpably illegal, therefore, the judgment and order passed by the first appellate court as well as by the High Court in the Second appeal are thus liable to be set aside and they are hereby set aside.
6. We remit the case to the first appellate court as it would be appropriate to re-assess the evidence taken into consideration, the translated version of the document Exhibit E after taking it on record. It would be open to both the parties to file translated version of the document and to agree on correct translation. Let appeal be decided afresh, considering the document within a period of three months from the date of first appearance of the parties in the court. Let the parties appear before the first appellate court on 12th June, 2017. No further notice shall be necessary to both the parties.
7. The appeal is allowed to the aforesaid extent.
8. There shall be no order as to costs.
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