IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 18th August, 2011
CM Nos.4264/2008 & 13395/2011 in RFA No. 329/97
Smt. Chanan Kaur & Ors. ...... Appellants.
Through: Mr.Sanjeev Sindhwani, Adv.
Vs.
Shri Ajit Singh ......Respondent
Through: Mr. S.K. Kalia, Adv.
CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
RFA No.329/97 Page 1 of 13
KAILASH GAMBHIR, J.Oral:
1. This order shall dispose of two applications filed by the appellants bearing C.M. No. 4264/2008 and C.M. No. 13395/2011 filed under Order XLI Rule 27 read with Section 151 CPC.
2. By filing the application bearing C.M No. 4264/2008, the appellants seek to place on record a statement stated to be in the hand writing of Shri Ajit Singh, the respondent herein, which contains the account pertaining to plot no. E-262, Greater Kailash-I, New Delhi. This application was moved by the appellants in the month of March, 2008 and the subsequent application bearing No. 13395/2011 under the same provision, has been moved by the appellants in July 2011 seeking to place on record the original documents which are on plain sheets stated to be in the hand writing of Shri Ajit Singh containing the expenses incurred by Shri Bachan Singh and Shri Ajit Singh for construction of plot no. E-262, Greater Kailash-1, New Delhi.
RFA No.329/97 Page 2 of 13
3. Pending before this court is the appeal filed by the appellants Smt. Chanan Kaur and others, challenging the impugned judgment and decree dated 30.9.1997, whereby a suit for possession in respect of ground floor of property bearing no.L-59, Kalkaji New Delhi was decreed in favour of the respondent and against the appellants. Before arguing the present applications, Mr. Sindhwani, learned counsel for the appellants gave a brief background of the facts of the case relevant for deciding the present applications. As per the counsel, Shri Arjan Singh, Shri Bachan Singh and Shri Sadhu Singh were three brothers who were carrying on a joint business of building contractors and the defence taken by the appellants in the suit for possession filed by the respondent was that the property bearing no. L-59, Kalkaji, New Delhi was jointly purchased by Shri Bachan Singh and Shri Arjan Singh, i.e. father of the respondent and husband of the appellant no.1 respectively, and the entire construction on the said plot of the property was carried out from the joint funds of Shri Bachan Singh and Shri. Arjan Singh. Counsel also submits that it was RFA No.329/97 Page 3 of 13 also the case of the appellants in the written statement that on the said plot, two separate portions with separate entrances were constructed and through this fact it becomes apparent that the two separate portions belonged to the two separate branches of the family i.e. of Shri Bachan Singh and Shri Arjan Singh. It is further the case of the appellants that because of the family being a very close knit unit therefore out of mutual affection the said property was purchased in the name of Shri Ajit Singh, the respondent herein, son of Shri Bachan Singh who was the eldest amongst all the cousins i.e. the respective sons of all the aforesaid three brothers. It is also the case of the appellant that taking advantage of the fact that the property was purchased in the sole name of Shri. Ajit Singh, he had filed a suit for possession against the appellants. Counsel has also pointed out that the respondent has yet filed another suit for possession in respect of the portion on the 1st floor and portion above in the same property and the said suit is pending consideration before the Original Side of this Court. It is also the case of the appellants that the documents now sought RFA No.329/97 Page 4 of 13 to be placed on record by the appellants have also been filed by the appellants in the said suit.
4. Arguing these applications, Mr. Sindhwani, submits that the documents sought to be placed on record by the appellants are important to effectively determine the controversy involved between the parties but the same could not be placed on record by the appellants earlier despite the exercise of due diligence and it is only when the appellants were to cross-examination of the witnesses of the respondent in the other case i.e. Suit No. 2195/98, further search was made by the appellants and these documents could be traced in the old trunks and almirahs belonging to the husband of the appellant no.1. Explaining the authenticity of these documents, the counsel submits that these documents are in the hand writing of Shri Ajit Singh giving details of the breakup of the expenditure incurred by Shri Ajit Singh and Shri Bachan Singh towards the consideration of the plot no. E-262, G.K.-1, New Delhi. Counsel also submits that in fact the first document filed by the appellants along with C.M. 4262/2008 clearly shows that RFA No.329/97 Page 5 of 13 the amount of Rs.6,000/- was contributed by the appellants towards the construction of plot bearing No. L-59 Kalkaji. Counsel also submits that the last entry of Rs.32139.88 in the second set of documents also tallies with the document filed by the appellants with the first application and this carry forward entry of Rs.32139.88 would clearly demonstrate the genuineness of these documents and would inspire confidence for their admission even at this belated stage. Counsel also submits that due to the genuineness of these documents and the bona fide reasons given by the appellants, the unintentional delay on the part of the appellants in non-filing of these documents be not taken adverse to defeat their rights to prove their defence.
5. On the other hand, both these applications are strongly opposed by Mr.S.K. Kalia, learned counsel for the respondent.
6. I have heard learned counsel for the parties at considerable length and gone through the records. RFA No.329/97 Page 6 of 13
7. The principle to permit a party to lead additional evidence at the appellate stage is well-settled. Order XLI Rule 27 CPC envisages four situations in which the appellate Court may allow a party to produce the additional evidence at the appellate stage. They are:-
(a) that the Trial court has refused to admit evidence which ought to have been admitted, or
(b) the parties seeking to produce additional evidence could not produce the said evidence despite the exercise of due diligence, or
(c) the appellate Court requires any document to be produced so as to enable it to pronounce judgment, or
(d) for any other substantial cause.
8. The production of additional evidence at the appellate stage is not a matter of right and unless the case of the parties seeking to file additional evidence falls under any of the above conditions the appellate court will be hesitant to allow production of additional evidence at the appellate stage. It cannot be allowed to give an opportunity to the party to fill in RFA No.329/97 Page 7 of 13 the lacuna existing in its case or to bring on record something that would lead to tilting the balance in his favour. The discretion to allow or disallow the additional evidence at the appellate stage, however, has to be reasoned one. Here it would be relevant to refer to the observations of the three bench decision of the Supreme Court in the case of Arjun Singh vs. Kartar Singh AIR 1951 SC 193 as under:
The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in Order XLI, rule 27, of the Civil Procedure Code. If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent. As laid down by the Privy Council in the well-known case of Kessowji Issur v. G.I.P. Railway 34 I.A. 115, "the legitimate occasion for the application of the present rule is when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the court, of fresh evidence and the application is made to import it;
The case of the applicants in the present case would fall under clause 1(aa) of rule 27 as the applicants seek to place on record some old documents which the applicants have been able to lay their hands only in 2008 and 2011. It has been held by the Apex court in various decisions that the applicants under this clause RFA No.329/97 Page 8 of 13 have to establish that the evidence was not within the knowledge or could not after the exercise of due diligence be produced by him at the time of passing the decree appealed against . Hence, clearly the onus is on the applicants to satisfy this court that despite exercise of due diligence they could not have produced the said documents. Now whether the parties have acted with due diligence or not is a matter to be determined by the court from the facts and circumstances of each case. Here it would be useful to refer to the judgment of the Apex Court in the case Chander Kanta Bansal vs. Rajinder Singh Anand (2008)5SCC117 where the court explained the concept of due diligence as under:
"The words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs."RFA No.329/97 Page 9 of 13
Hence what is to be shown that even after reasonable care, the documents could not have been produced before the passing of the decree. It is also statutorily settled that it is not a vested right of any party to produce the additional evidence at the appellate stage as the stage of filing the documents in terms of Order 13 Rule 1 CPC is on or before the settlement of the issues. Here is a case where the appellants seek to place on record certain writings alleged to be in the handwriting of Shri Ajit Singh who is respondent No.1 herein and pertains to investments or expenses incurred by Mr. Bachan Singh and Shri Arjan Singh (father of Mr. Ajit Singh) towards the construction of a property being E-262, Greater Kailash-I, New Delhi. The co- relation of these documents pleaded by the appellants is that Shri Bachan Singh and Shri Arjan Singh were jointly incurring expenses towards the construction of the Greater Kailash-I property and arising out of the said income of the joint investment, an amount of Rs.6,000/- was adjusted by Shri Arjan Singh out of the share of Mr. Bachan Singh. To explain the filing RFA No.329/97 Page 10 of 13 of these documents at such a belated stage, the stand taken by the appellants is that the documents were found from some old trunks and almirahs belonging to the husband of the appellant No.1 when extra efforts were put by the appellants to search the documents at the stage of cross-examination of the witnesses of the respondent in the other suit. Indisputedly, the suit for possession was filed by the respondent, Shri Ajit Singh in the year 1984 and the said suit was decreed by the learned Trial Court as long back as in the year 1997.
9. As the present appeal before this Court is also pending since 1997, the first application by the appellants under Order 41 Rule 27 CPC was filed on 18.03.08 while the second application was filed by the appellants on 20.07.11. In both the applications, the appellants have given a common ground to explain the reasons for not filing these documents before the learned Trial Court. The common ground which has been disclosed in both the applications is that only when cross- examination of the witnesses of the respondent was in progress in the other suit bearing No.2195/98, the appellants had put RFA No.329/97 Page 11 of 13 some extra efforts to search the old trunks and almirahs and found the said documents. Surprisingly, the appellants could not seek production of the additional documents through a single application although in both the applications, there exists a common ground to explain the reasons for non-filing of the documents before the Trial Court. Hence, as discussed above, this court is of the considered view that the applicants have not been able to show due diligence for satisfying the requirement of Order 41 Rule 27 in both the applications. It cannot be believed that the records which were well available with the appellants were not searched by them for such a long period for more than 24 years.
10. Counsel for the appellants was put a specific question by this Court as to whether even in their written statement any such defence was raised by the appellants that a sum of Rs.6,000/- was adjusted by Mr. Bachan Singh towards the cost of suit property, out of the joint accounts maintained by Mr. Bachan Singh and Shri Arjan Singh for carrying on the construction of Greater Kailash-I property. Counsel fairly RFA No.329/97 Page 12 of 13 stated that no such defence was raised by the appellants in their written statement. Without commenting upon the authenticity and the genuineness of these documents as these very documents have also been filed by the appellants in the other case pending before this Court on the Original Side, it would be suffice to mention that this Court does not find the reasons given by the appellants cogent and sufficient enough to satisfy the requirement laid down under Order 41 Rule 27 CPC.
11. In the light of the above, this Court does not find any merit in both these applications. The same are accordingly dismissed.
KAILASH GAMBHIR, J AUGUST 18, 2011 RFA No.329/97 Page 13 of 13