Smt. Ganga Devi (Dead) vs Sri Bhagwan Dass & Others
2014 Latest Caselaw 4005 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Court No. - 19
 
Case :- SECOND APPEAL No. - 344 of 2009
 
Appellant :- Smt. Ganga Devi (Dead)
 
Respondent :- Sri Bhagwan Dass & Others
 
Counsel for Appellant :- Sankatha Rai,Dr. Vinod Kumar Rai,Vijay Kumar Rai
 
Counsel for Respondent :- Madhav Jain,M. Jain,Mukesh Kumar,Nirvikar Gupta,Prakash Chandra
 
Hon'ble Anil Kumar,J.

(Civil Misc. Application No.306325 of 2013)

Heard Sri Ashok Kumar Singh, learned counsel for the appellant, Shri Madhav Jain, learned counsel for the respondents and perused the record.

The present application has been moved by the appellant under Order 41 Rule 27 read with Section 151 C.P.C. in order to bring the following additional evidence on record :-

"The appellant application no.22C/1 to 22 C/3 under order 41 rule 27 C.P.C. Purported to file additional evidence annexing with the documents was rejected by the learned VII Additional District Judge vide order dated 2.2.2009 in first appeal no.110 of 1994 on the ground that the document seeking to produce in additional evidence are the photo copies.

The present supplementary affidavit and its annexure is being filed by deponent to avoid the delay. The Hon'ble Court may be pleased to the allow the same in exercise the inherent power of the court in the interest of justice."

On the said application, an order has been passed on 26.09.2013. The relevant portion of the same is quoted herein below :-

"The question whether the appellate court was justified in rejecting the application of appellant under Order 41 Rule 27 CPC shall be considered at the time of hearing of the appeal. The application is rejected."

While pressing the application in question, learned counsel for the appellant submits that the original appellant/Smt. Ganga devi (now deceased) who was illiterate lady and ignorant of the complicated questions of law and fact, therefore, same documents/admissions of the respondents could not be filed on record. When it came to her knowledge that Rsmesh Chand has filed Writ Petition No.1087 of 1987 (Ramesh Chandra vs. Additional District Magistrate, Agra and others) before this Court, the appellant sent letter to the clerk of his counsel Shri R. N. Bhalla, Advocate to obtain the copy of aforesaid writ petition.

Thereafter, the photostat copy of the said writ petition was obtained and from perusal of paragraph no.2 of the said writ petition, it came to knowledge that Ramesh Chandra himself has admitted that he and Smt. Ganga Devi (now deceased) were owner and londlord of the house in dispute in an application filed under Section 16 of U.P. Act 13 of 1972 against Munna Lal for release of the House No.24/106, Kazi Para, Agra. So, keeping in view the said facts, the appellant filed an application under Order 41 Rule 27 (1) C.P.C. Supported by an affidavit (registered as paper Nos.22-C and 23-C) before the appellate court.

By means of order dated 2.2.2009, the same has been rejected on the ground that the document sought to be brought on record, is a photostat copy, not admissible under evidence. Further the appellate court while rejecting the said application has also given a finding that matter is to be decided expeditiously as per the order passed by this Court dated 18.4.1988 expeditiously.

During the pendency of the present appeal, on behalf of the appellant, an application (C.M.A.No. 102352 of 2009) has been moved under Order 41 Rule 27 (1) C.P.C. to bring the document on record in respect to which an order dated 2.2.2009 has been passed by the appellate court on an application moved under Order 41 Rule 27 C.P.C.. After hearing learned counsel for the parties on 25.7.2014 the following order has been passed :-

( C.M. Application No. 102352 of 2009)

Heard Sri Ashok Kumar Singh, learned counsel for the appellant, Sri Prakash Chandra, learned counsel for the respondents and perused the record.

In the present case , present application under Order 41 Rule 27 CPC has been moved by defendant/ appellant in which this Court on 29.9.2013 has passed the following orders:-

"Heard learned counsel for the parties on civil misc. application no. 102352 of 2009 under Order 41, Rule 27 CPC.

Learned counsel for the appellant moved this application to bring certain documents on record under Order 41 Rule 27 CPC.

The main contention of the appellant is that he also filed the same documents in the Appellate Court in First Appeal, which was rejected by the Appellate Court.

The documents which the appellant wish to file here in this Appeal are also on record in First Appeal. Now the only question is whether trial court was justified in rejecting his application under Order 41 Rule 27.

The question whether the appellate court was justified in rejecting the application of appellant under Order 41 Rule 27 CPC shall be considered at the time of hearing of the appeal. The application is rejected.

Since no application is pending, list this appeal for hearing of the appeal in the week commencing 21.10.2013."

After arguing at some length, learned counsel for the appellant prays that he does not want to press this application.

Learned Standing Counsel has no objection to the above said prayer.

For the forgoing reasons, the application is rejected."

In view of the above said factual background, the present application (C.M.A.No.306325 of 2013) moved by him under Order 41 Rule 27 C.P.C. has come up for consideration and the same has been pressed on behalf of the appellant as per the facts stated herein above and mentioned in the affidavit filed along with the application in question and on the basis of the same, it is submitted that the same may be allowed.

After hearing learned counsel for parties in order to decide the controversy in question, it would be appropriate to go through the provisions of Order 41 Rule 27(1) C.P.C. which reads 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."

Under Sub-Rule (1) (a) an appellate court can direct additional evidence to be recoded if the trial court had improperly rejected to record evidence which a party was prepared to produce. (See Offl Liquidator vs. Raghava, A 1974 SC 2069). However, if the document was not tendered at the trial, Rule 27 (1) (a) does not apply coupled with the fact that when no explanation is given why those documents were not produced before the trial court, they cannot be received as additional evidence (See Raj Kishore Mishra v. Meena Mishra, AIR 1995 ALL 70). Moreover, the permission to produce additional evidence cannot be given unless it is established that such evidence was not within the knowledge or could not be produced after due diligence at the time of passing of decree.

Further on plain reading of Sub-rule (1)(aa) of Order 41 rule 27, the position which emerges out is 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.

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).

In view of the above said discussions and the facts as taken by the appellant in order to bring the additional evidence as per the provisions of Order 41 Rule 27 (1) C.P.C. , I do not find that on the said facts, the application in question can be allowed as per the discussions made herein above and in regard to applicability of the Order 41 Rule 27 (1) C.P.C., so the same is rejected.

List the matter before appropriate Bench after three weeks.

Order Date :-05.08.2014

Mahesh