Sheetla Prasad vs Vth Additional District Judge ...
2013 Latest Caselaw 5122 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved 
 
Court No. - 18
 

 
Case :- MISC. SINGLE No. - 4502 of 2007
 
Petitioner :- Sheetla Prasad
 
Respondent :- Vth Additional District Judge Sultanpur And Ors.
 
Counsel for Petitioner :- B.R.Singh
 
Counsel for Respondent :- C.S.C.,M.E.Khan
 

 
Hon'ble Anil Kumar,J.

Heard Sri B.R. Singh, learned counsel for petitioner, learned State counsel  as well as Sri M.E. Khan, learned counsel appearing on behalf of respondent perused the record.

By means of the present writ petition, the petitioner has challenged the order dated 18.05.2007 (Annexure No. 1) passed by Vth Additional District Judge, Sultanpur in a pending appeal by which the petitioner's application under Order 41 Rule 27 C.P.C. has been rejected.

Facts of the case in brief are that on 01.12.1989 one Sri Ram Raj (now deceased) executed a sale deed in favour of the petitioner's father Sri Dhanraj in a mutation case under Section 34 of the U.P. Land Revenue Act, thereafter land which is subject matter of the sale deed mutated in the name of Sri Dhanraj.

In the year 1987, Ramsukh, Paramsukh, Sunil Kumar, Manoj Kumar, Pawan Kumar Shiv Kumar and Jairaji have filed a suit for cancellation of the said sale deed, registered as Civil Suit No. 37 of 1987 in the Court of Munsif, Sultanpur.

In the said suit, in order to establish their case on behalf of plaintiffs, Smt. Jairaji (wife of Sri Dhanraj) was examined as P.W. 1.

On the basis of pleading, other material on record(oral & documentary evidence) by judgment and decree dated 28.02.2006, the trial court, allowed the suit, canceled the said deed dated 01.12.1989 executed in favour of Sri Dhanraj.

Aggrieved by the said fact, the present petitioner (Sri Sheetla Prasad) filed a civil appeal (Civil Appeal No. 20 of 2000).

During the pendency of the appeal before O.P. No. 1, an application dated 04.03.2007 (numbered as Paper No. 70 GA-2) under Order 41 Rule 27 CPC has been moved by petitioner/Sheetla Prasad to bring the statement of Smt. Jairaji in mutation case under Section 34 of the U.P. Land Revenue Act on the record of the appeal.

The facts  on which the said application has been moved are that while preparing the appeal for hearing in the month of January, 2007, a legal advise has been given to him that the said document/evidence is material for adjudication of the dispute involved in the appeal, so after obtaining the copy of  the statement of Smt. Jairaji from the competent court, the application under Order 41 Rule 27 C.P.C. has been moved at appellate stage.

On behalf of the plaintiff/respondent, an objection was filed that the averment as made by defendant-petitioner in the application under Order 41 Rule 27 CPC to bring the statement of Smt. Jairaji was already on record before the trial court and the defendant-petitioner has got knowledge of the said fact. In spite of the said fact, he has not made any effort to bring the same as an additional evidence in order to support his case. So, now as per the provisions as provided under Order 41 Rule 27 CPC, the same cannot be brought by way of additional evidence at appellate stage, so the application moved by him in this regard is liable to be rejected.

After hearing the parties concerned on the point in issue, by order dated 08.05.2007, O.P.No. 1/ Vth Additional District Judge, Sultanpur ejected the application under Order 41 Rule 27 C.P.C.

Aggrieved by the said order, the present writ petition has been filed.

Sri B.R. Singh, learned counsel for petitioner submits that the said document is not within the knowledge of the petitioner/defendant, so the same was not brought on record during the trial stage and when the necessity of the said document came to the notice of the petitioner, as per legal advice given to him, an application under Order 41 Rule 27 CPC moved in order to bring the same on record, so keeping the said facts and as per the provisions as provided under Order 41 rule 27(1)(aa), and taking into consideration the word "substantial cause" as exists under Order 41 Rule 27(1)(b), the appellate court should have allowed the application moved by the petitioner for taking the statement of Smt. Jairaji given in the mutation case at the appellate stage as additional evidence. However, ignoring the said facts, the impugned order has been passed by O.P. No. 1, so the same is arbitrary in nature, contrary to law. In support of his argument, he has placed reliance on the judgment, namely, Rajsthan Vs. T.N. Sahani and others 2001(10) SCC 619, Jayaramdas & sons Vs. Mirza Rafatullah Baig and others, 2005 (23) LCD 39, Trijugi Nath Agrawal and another Vs. IIIrd Addl. District Judge, Mirzapur and another, 2004 (22) LCD 974, Shalimar Chemical Works Ltd. Vs. Surendra Oil & Dal Mills (Refineries) and others, 2010 (28) LCD 1345.

Next argument advanced by Sri B.R. Singh, learned counsel for petitioner that in view of the provisions as provided under Section 17, 33, 70 and 80 of the Indian Evidence Act, the statement given by Smt. Jairaji w/o of late Sri Ramraj in the mutation case under Section 34 of the U.P. Land Revenue Act that his husband has enmity with Sri Dhanraj, the father of the defendant/petitioner is the material piece of evidence, so the same should be taken on record. In support of his argument, he has placed reliance on the following judgment (Ganga Prasad Vs. Deputy Director of Consolidation and Ors., Basant Singh Vs. Janki Singh Ors., Mahendra Singh Vs. Shankar Dayal Singh and Ors., Bharat Singh and Anr. Vs. Bhagirathi)

Accordingly, Sri B.R. Singh, learned counsel for petitioner submits that the impugned order being contrary to the provisions of order 47 Rule 27 CPC, liable to be set aside.

Sri M.E. Khan, learned counsel appearing on behalf of contesting respondent submits that the statement of Smt. Jairaji given in the mutation case along with the entire file of the proceedings under Section 34 of the Land Revenue Act is on record before the trial court, so the said fact is well within the knowledge of the defendant-petitioner, so the case as set up by the petitioner to bring the same on record is contrary to the provisions of Order 41 Rule 27 as well as the laid laid down in the following cases ; Gurdev Singh and others Vs. Mehnga Ram and another, 1997 (31) ALR 470 (SC), Mahaveer Singh and others Vs. naresh Chandra and another, 2001 (19) LCD 952 (SC) as well on the judgment in the case of Basayya I Mathad Vs. Rudraya S Mathad and others.

Sri M.E. Khan, learned counsel for respondent further submits that so far as the argument advanced by learned counsel for petitioner, that the impugned order dated 18.05.2007 passed by O.P. No. 1 is contrary to the provisions as provided under Order 41 Rule 27(b) is totally incorrect and wrong as the said provision as not attracted in the present case because as per the said provision, it is the court concerned (appellate Court) can take any document by way of additional evidence at the appellate stage in order to do substantial justice in a pending appeal. In support of his argument, he has placed reliance on the judgment and order in the case of Parsotim Thakur and others Vs. Lal Mohan and others, AIR 1931 P.C. 143, so the present writ petition is liable to be dismissed.

I have heard learned counsel for parties and perused the record and gone through the various authorities cited by learned counsel for the parties in support of their case, taking into account the said facts as well as as Order 41 Rule 27(1) C.P.C. provides as under:-

"Rule 27-      Production of additional evidence in Appellate Court-- (1) The parties to an appeal shall not been titled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if--

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b) 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, the Appellate Court may allow such evidence or document to be produced, or witness to be examined."

The position of law which emerged out is that on plain reading of Sub-rule (1)(aa) of Order 41 rule 27 that when application is made at a late stage to put in evidence res moviter ad notitiant preventa, one of the primary duties of the applicant is to show that it was owing to no want of diligence on his part that the matter/evidence was not discovered before, so he was not able to file the same before the court below and if a appellant falls to satisfy the said condition his application to produce the same at a belated stage is liable to be rejected.

The party seeking to produce additional evidence, whether oral or documentary additional evidence, is to establish that notwithstanding to exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed and in order to bring the additional evidence on record, the appellant should establish that he made application to get the certified copies prior to the disposal of the suit, and they were not available and adjournment was refused by the Court. Where it is not stated that the trial court refused to admit the documents or that the documents were not available at the time of trial, they cannot be admitted in the appellate court to fill up the gaps in the evidence or to better the case of the appellant.

Before a party is allowed to produce additional evidence he has to establish that the evidence was not in existence, was not within his knowledge or could not after the exercise of due diligence be produced by him at the time when the decree appealed against was passed.

Sub-Rule (1)(b) of Order 41 Rule 27 CPC has two important ingredients, namely, (a) 'requires' (b) for any substantial justice' in order to invoke the said provision.

As per the said provision "the requirement" must be of the court and not of any party to the suit. When the court is of opinion that without fresh evidence it cannot pronounce judgment and perform its functions, then and then only will it be allowed because requires means needs or finds needful or that it is necessary for doing real justice (substantial justice) and for just decision of an appeal, the appellate Court has discretion to take such documents on record.

Accordingly, , the true test is whether the appellate court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced. The mere discovery of fresh evidence subsequent to the decision of the lower court is not a ground for its admission in appeal unless the appellate court requires that evidence to enable it to pronounce judgment. So, additional evidence should not be permitted at the appellate stage to enable a party to remove certain lacunae and to fill in gaps. It should be proved that the evidence sought to be let in was not available at the trial. The rule does not authorise admission of additional evidence for the purpose of removal of lacunae and filling in gaps in evidence.

Further, "any other substantial cause" need not be ejusdem generis with the cause stated in the earlier part of the rule and the words "or for any other substantial cause" must be read with the word "requires" which is set out at the commencement of the provision, so that it is only where for any other substantial cause, the appellate court requires additional evidence, this rule would apply. It is under these circumstances such a power could be exercised and when the first appellate Court did not find the necessity to allow the application, the evidence should not be accepted under the rule.

Keeping in view the abovesaid position, the facts/grounds taken by the defendant/ petitioner in his application under Order 41 Rule 27 CPC and the reasoning given by the appellate court while rejecting the same that the petitioner/defendant has got the knowledge of the statement given by Smt. Jairaji (Plaintiff No. 7) in the mutation case during the proceeding before the trial court as the entire facts of the mutation case along with the statement of Smt. Jairaji is on record of the trial court. In spite of the said fact, the petitioner/defendant has not brought them by way of evidence in support of their case, as such now at appellate stage as per the provisions of Order 41 Rule 27 CPC they are not entitled to bring the same on record by way of additional evidence.

In addition to the said finding, the court has also held in the impugned order that the evidence which is sought to be brought on record by way of additional evidence is nor required by the appellate court in order to adjudicate and decide the controversy involved in the appeal. Accordingly, rejected the petitioner's application under Order 41 Rule 27 CPC, the said finding given by the appellate court is perfectly valid and in accordance with the provisions of Order 41 Rule 27, needs no interference by this Court while exercising powers under Article 226 of the Constitution of India.

So far as the argument advanced by learned counsel for petitioner on the basis of relevant provisions of the Indian Evidence Act are concerned, Order 41 Rule 27 CPC is clearly not intend to allow a litigant who had been unsuccessful in the lower court to patch up the weak parts of his case and to fill up the omission in appeal. Additional evidence can be admitted only where the Appellate court requires it, i.e. finds it needful, to enable it to pronounce judgment, or for any other substantial cause. In either case it must be the court that requires it. The legitimate occasion for the exercise of this discretion is when on an examination of 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 an application is made to import it. It may well be that the defect, but the requirement must be the requirement of the court upon its appreciation of the evidence as it stands (See. Arjan Vs. Kartar, 1951 SCR 258, Parsotim Thakur and others Vs. Lal Mohan and others, AIR 1931 P.C. 143). Which was advanced by learned counsel for petitioner on the basis of relevant provisions of Indian Evidence Act and the law which is cited in this regard, the petitioner cannot derive any benefit, the same is rejected.

In the result, the writ petition lacks merit is dismissed, interim order passed in favour of the petitioner is vacated.

No order as to costs.

Order Date :- 20.08.2013

Ravi/