Rajiv Sahai & Anr. vs Wg.Cdr.Ashok Kumar Sahai (Retd.)
2017 Latest Caselaw 8153 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
A.F.R.
 
Court No. - 7
 
Case :- FIRST APPEAL No. - 6 of 2015
 
Appellant :- Rajiv Sahai & Anr.
 
Respondent :- Wg.Cdr.Ashok Kumar Sahai (Retd.)
 
Counsel for Appellant :- Sudhanshu Chauhan
 
Counsel for Respondent :- Ashutosh Nigam,Kr Ravi Prakash,Radha Kamal Singh-Ii,Rajeiu Kumar Tripathi
 

 
Hon'ble Anil Kumar,J.

Hon'ble Daya Shankar Tripathi,J.

(C.M. Application No. 5850 of 2015)

Heard Sri R.K. Tripathi, learned counsel for appellants, Sri Umesh Kumar Tiwari, learned counsel for respondents and perused the record for the purpose of disposal of application under Order XLI Rule 27 read with Section 151 CPC.

Sri R.K. Tripathi, learned counsel for appellants-defendants submits that initially Wg. Cdr. Ashok Kumar Sahai-plaintiff/ respondent filed a suit for mandatory injunction registered as Regular Suit No. 473 of 2007 ( Wg. Cdr. Ashok Kumar Sahai (Retd.) Vs. Rajiv Sahai and others), partly decreed by judgment and order dated 27.10.2014 passed by Civil Judge (Sr. Div.), Malihabad, Lucknow, under challenge in the present appeal.

During the pendency of the this appeal, an application has been moved by the appellants-defendants under Order 41 Rule 27 read with Section 151 CPC.

Sri R.K. Tripathi, learned counsel for appellants in order to press the same, placed reliance on paragraph Nos. 4, 5, 6 & 7 of the application, on reproduction reads as under:-

"4. That before the Tribal Court amongst others the appellants had categorically stated that the respondent had obtained the judgment dated 21.01.1993 by playing fraud upon the Hon'ble Court and the aforesaid judgement was a nullity in the eyes of law.  Despite a very specific averment being made by the appellants no issue was framed by the learned Trial Court in this regard.

5. That the certified copies of respective written statements of the defendants no. 1 and 2 in Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) and the judgment dated 21.01.1993 passed in the same were filed on the records on Regular Suit No. 473 of 2007 before the Trial Court. Further, the counsel for the appellant was of teh view that the written statement were sufficient to demonstrate the fraud played by the respondent in procuring the judgement and decree dated 21.01.1991.

6. That it was solely on the basis of the advise rendered by the counsel of the appellants that the appellants were unable to file the plaint and the order sheet of Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) before the learned Trial Court despite exercise of due diligence and as such are filing the same with the present appeal.

7. That even otherwise the appellants were not aware regarding the averments on the plaint and teh proceedings of the Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) and it was only at the stage of filign of the preent apepal that the appellants realized the relevance of the documents being filed in the shape of additional evidence."

During the pendency of the Regular Suit No. 473 of 2007 ( Wg. Cdr. Ashok Kumar Sahai (Retd.)Vs. Rajiv Sahai and others) by way of evidence, Wg. Cdr. Ashok Kumar Sahai filed written statement as well as decree passed in Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another), however, the plaint and ordersheet of Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) was not filed, so, the same is sought to be brought by way of additional evidence before this Court.

Because no issue has been framed in regard to earlier proceedings taken in Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another), as such, the plaint and order-sheet of Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) were not brought on record during the trial stage.

Sri R.K. Tripathi, learned counsel for appellants further submits that the counsel who was appearing on behalf of appellants defendants in Regular Suit No. 473 of 2007 ( Wg. Cdr. Ashok Kumar Sahai Vs. Rajiv Sahai and others) did not advise that the said documents are necessary for adjudication of dispute, hence the same are to be brought on record by way of evidence, as such the same documents may be taken on record by way of additional evidence as per provision of Order XLI rule 27(1)(aa) CPC. In respect to his argument, reliance has been placed on the judgment given by Hon'ble the Apex Court in the case of Municipal Corporation of Greater Bombay Vs. Lala Pancham and others, AIR 1965 SC 1008,

In alternative Sri R.K. Tripathi, learned counsel for appellants argued that the documents in question, namely, the plaint and order-sheet of Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) may be taken on record as additional evidence as per Order 41 Rule 27(1)(b) of CPC.

Sri Umesh Kumar, learned counsel for respondents while rebutting the submission made by Sri R.K. Tripathi, learned counsel for appellants submits that it is well within the knowledge of the appellants-defendants in respect to the litigations taken place in the Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) because in the plaint of Regular Suit No. 473 of 2007 (Wing Commander Ashok Kumar Sahay Vs. Rajiv Sahay and others), it is categorically stated in paragraph No. 2 in regard to the judgment dated 21.01.1993 passed in Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) by Civil Judge (Sr. Div.), Malihabad, Lucknow.

He further submits that during the trial stage, written statement as well as decree passed in Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) were brought on record by way of evidence. In spite of the said facts, no steps were taken by the appellants to bring the documents, namely, plaint and ordersheet of Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) on record as an evidence, so at this stage, the application moved on behalf of appellants-defendants for bringing them by way of additional evidence, liable to be rejected.

We have heard learned counsel for parties and gone through the record.

In order to decide the controversy involved in the present case, it will be appropriate to go through the provisions as provided under Order 41 Rule 27(1) CPC 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."

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 fails 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, is to establish that notwithstanding to exercise of due diligence, such evidence was not within his knowledge or could not be filed, 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 make 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.

Order 41 Rule 27 CPC is clearly not intended 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. (See. Arjan Vs. Kartar, 1951 SCR 258, Parsotim Thakur and others Vs. Lal Mohan and others, AIR 1931 P.C. 143).

Hon'ble the Apex Court in the case of Government of Karnataka and another Vs. K.C. Subramanya and others, 2014 (2) AWC 1155 (SC), while interpreting the provisions as provided under Order XLI Rule 27 (1)(aa), held as under:-

5. However, we do not feel impressed with this argument and deem it fit to reject it in view of Order XLI Rule 27(1) (aa) which clearly states as follows:

              (a)       .........
 
              (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) .......... 
 

6. On perusal of this provision, it is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum.

7. It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specificcally incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed to be done at his leisure or sweet will."

Hon'ble the Apex Court in the case of Lekhraj Bansal Vs. Stateof Rajasthan and another, 2014 (3) AWC 2751 (SC), in paragraph No. 7 has held as under:-

"The parties to an appeal shall not be entitled to produce additional evidence in the appellate court unless the conditions stipulated under Order 41 Rule 27 Code of Civil Procedure are satisfied. It is not the case of the Appellant that the trial court had refused to admit the said evidence which ought to have been admitted. It is also not the case of the Appellant that the said evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him during pendency of the suit before the trial court. On the other hand it is vehemently contended that the said evidence namely the document was filed but was omitted to be tendered in evidence and got exhibited in the suit. The lower appellate court elaborately considered the factual matrix and held that the Appellant has not satisfied any of the conditions stipulated under Order 41 Rule 27 and hence is not entitled to produce additional evidence. In our view the said finding has rightly been confirmed by the High Court."

In view of the abovesaid facts, the word which got an important role for application of the provisions of Order XLI Rule 27 (1) (aa) CPC in order to produce additional evidence at appellate stage which could not be brought by evidence at the stage of trial is"due diligence".

Word, "due diligence" has been considered by the Apex Court in the case of Chander Kanta Bansal Vs. Rajinder Singh Anand, 2008 AIR SCW 3225 and it has been held as under:-

"The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 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 (Eighth Edition), "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 Edition 13A) "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."

In the present appeal, as stated above, it was well within the knowledge of the appellants in respect to the plaint and order sheet of Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) but they did not bring the same on record by way of evidence at the trial stage, hence they do not fulfill the requisite condition as mentioned in Order XLI Rule 27 (1)(aa) CPC. 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, so at this stage, he cannot be allowed to be brought on record, said documents (plaint and order sheet of Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another)) by way of additional evidence.

So far as the judgment cited by Sri R.K. Tripathi, learned counsel for appellants in support of his argument given in the case of Lala Pancham (Supra), Hon'ble the Apex Court in paragraph No. 9 held as under (relevant portion):-

"The learned Judges were not correct in observing that it was the plaintiffs' case in the plaint that the landlords had obtained the clearance order or that the Corporation had made that order for a collateral purpose. This impression of the High Court seems to be the basis of the rather curious procedure which it chose to follow in this case. Then the High Court referred to the fact that no evidence whatsoever had been led by the plaintiffs before the City Civil Court to the effect that the order was passed fraudulently or for a collateral purpose. It was alive to the fact that in such a case a party should not be allowed to adduce fresh evidence at the appellate stage and much less so at the stage of letters patent appeal. Then it observed :

"If the case had rested thus the matter would have been very simple apart from the amendment application. It seems to us however that it is not possible to dispose of this case satisfactorily on the material on record. There are some documents on record which if unexplained support in a large measure the contention of the plaintiffs that defendants 2, 3 and 4 obtained the order by fraud and also that the order was mala fide."

If the High Court, in making these observations, was referring to the provisions of O. XLI, r. 27, Code of Civil Procedure it ought not to have overlooked the mandatory provisions of clause (b) of sub-r. (1) of r. 27. No doubt, under r. 27 the High Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. The High Court does not say that there is any such lacuna in this case. On the other hand what it says is that certain documentary evidence on record supports "in a large measure" the plaintiffs' contention about fraud and mala fides. We shall deal with these documents presently but before that we must point out that the power under clause (b) of sub-r (1) of r. 27 cannot be exercised for adding to the evidence already on record except upon one of the grounds specified in the provision. If the documents on record are relevant on the issue of fraud the court could well proceed to consider them and decide the issue. The observations of the High Court that certain documents would support the plaintiffs' contention of fraud only if they were not explained would show that according to it they furnish a prima facie evidence of fraud. There is nothing to show that the defendants or any of them wanted to be afforded an opportunity of explaining the documents. It would further appear that it was not merely for the limited purpose of affording the defendants an opportunity to explain the documents that the High Court remitted the case to the City Civil Court. For, in the concluding portion of its judgment the High Court has directed as follows :

"In the result, we remit the case to the City Civil Court for receiving additional evidence as directed by us in the judgment and also to allow evidence on the amendment. We direct that the defendants do file their written statement within three weeks from today, or at such earlier time as they can in answer to the amendment permitted to be made. Discovery and inspection forthwith within a week thereafter. And after this formality is over, the case to be on the board for final hearing for taking evidence on the issue of mala fide and the issues that arise on the amended pleadings between the parties ......"

This clearly shows that what the High Court has in substance done is to order a fresh trial. Such a course is not permissible under O. XLI, r. 27, Code of Civil Procedure. The High Court has quite clearly not proceeded under O. XLI, r. 25 because it has not come to the conclusion that the City Civil Court had omitted to frame or try an issue or to determine the question of fact which was essential to the right decision of a suit. For, the High Court has not indicated which issue was not tried by the trial court. If the High Court meant that the necessary issue had not been raised by the trial court though such issue was called for in the light of the pleadings, the High Court is required under this rule to frame the additional issue and then remit it for trial to the City Civil Court. Finally, this is not a case which was decided by the trial court on any preliminary point and, therefore, a general remand such as is permissible under r. 23 could not be ordered."

In view the facts of the present case, appellants-defendants cannot claim any benefit from the abovesaid case law in support of their case which is not applicable to the facts and circumstances of the present case.

So far as the argument raised by learned counsel for appellants that in view of the provisions as provided under Order XLI Rule 27 (1)(b) CPC, the documents, namely, plaint and order sheet of Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) they cannot be permitted to do so, because in Order 41 Rule 27(1)(b) there are two important ingredients namely 'requires and 'for any substantial justice' in order to invoke the said provision.

Thus, as per the said provision of the rule "the requirement" must be of the court and not of any party to the suit. When the court is of opinion that without additional evidence it cannot pronounce judgment and perform its functions, then and then only the Court will allow such application to file additional evidence.

The rule is clearly not intended 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).

For the foregoing reasons, the additional evidence which is sought by the appellants to be bring on record at the appellate stage cannot be brought in view of the provisons as provided under Order 41 Rule 27(1)(aa) and Order 41 Rule 27(1)(b) read with Section 151 CPC.

In the result, application lacks merit and is rejected.

(Daya Shankar Tripathi, J.) (Anil Kumar, J.)

Order Date :- 20.12.2017

Ravi/