Smt. Sandal (Deceased) And ... vs Smt. Hamida And 6 Others
2017 Latest Caselaw 3961 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                           AFR
 
Court No. - 36
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 5155 of 2017
 

 
Petitioner :- Smt. Sandal (Deceased) And Another
 
Respondent :- Smt. Hamida And 6 Others
 
Counsel for Petitioner :- Rishikesh Tripathi
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Heard learned counsel for the petitioners.

Supplementary affidavit filed today is taken on record.

The present petition is directed against the judgement and order dated 25.05.2017 passed by the Additional District Judge, Court no.7, Jhansi in Civil Appeal No.42 of 2016 (Jahid Vs. Hamid Khan & others) arising out of Original Suit no.208 of 2000 ( Smt. Sandal & another Vs. Smt. Hamida & others). By means of the order impugned, the application 20-C/2 filed by the appellants/defendants in the said Civil appeal has been allowed and the additional evidence filed by the appellant have been taken on record for assessment thereof at the time of disposal of the appeal. The first appellate court has recorded that the said evidence could not be brought on record by the appellants/defendants inspite of their due diligence at an earlier stage. Moreover, the assessment of the said evidence is required for effective disposal of the appeal.

The aforesaid suit has been filed with the prayer for permanent injunction on the ground that the plaintiffs are owner in possession of the house, subject matter of the suit. The plaintiffs are heirs of late Arab Khan. The defendants had contested the said suit on the ground that half portion of the disputed house, namely the suit property was though purchased by Arab Khan but it was later on sold by him.

The assertion in paragraph no.2 of the plaint that the suit property was owned by defendant no.1 namely Smt. Hamida was also admitted, however, it was denied that Smt. Hamida or the plaintiffs had left with any right to the suit property. The defendant nos.2 to 4 are claiming ownership rights in the suit property with the assertion that the plaintiffs had been allowed to reside in two rooms in the suit property as licencee. The injunction suit had been filed by the plaintiffs with a view to grab the suit property.

The injunction suit had been decreed on 01.04.2016. The decree of permanent and mandatory injunction was granted in favour of the plaintiffs with the direction that the defendants shall hand over possession of one room in the disputed house shown in the plaint map by diagonal red lines and shall be restrained from interfering in possession and user thereof, by the plaintiffs. The said decree has been challenged in appeal registered as Civil Appeal No.42 of 2016. The application 20/C-2 was filed by the appellant to bring on record the sale deed dated 01.08.1975 allegedly executed by Arab Khan, the predecessor of the plaintiffs, in favour of one Suresh Kumar. The said sale deed has been filed by the appellant with a view to assert that Sri Arab Khan had sold his rights/share in the disputed house i.e. the suit property. Admittedly, the plaintiffs are claiming their rights through their predecessor namely Arab Khan. It was thus recorded by the first appellate court that the said evidence is relevant for the purpose of effective decision of the controversy raised in the appeal.

Learned counsel for the petitioner has not disputed the facts noted above. Only submission made by him is that the first appellate court had erred in taking additional evidence on record. No such evidence had been brought by the appellants before the trial court though they were contesting the suit for permanent injunction. The alleged sale deed has no relation with the suit property nor any finding in this regard has been recorded in the order impugned by the first appellate court before taking the same on record.

These submissions of learned counsel for the petitioner does not appear to be correct considering the above noted facts more-so that the defendants were contesting the suit since the beginning on the ground that Sri Arab Khan, the predecessor in interest of the plaintiff, had sold his rights in the disputed house, i.e. the suit property.

It is also not disputed that the additional evidence filed by means of application 20/C-2 was taken on record at the time of final disposal of the appeal. It is also not disputed that the first appellate court had only assessed the relevance of the additional evidence brought on record. Thus no dispute has been raised by the petitioner regarding the stage of admission of additional evidence by the first appellate court. No detail regarding the stage of the appeal has been brought on record, however, from a perusal of the order impugned dated 25.05.2017, it appears that the appeal is being heard for final disposal.

The principles governing the jurisdiction of the first appellate court to take/accept the additional evidence on record under Order 41 Rule 27 CPC, the guidelines had been issued by the Apex Court in Union of India Vs. Ibrahim Uddin & another reported in 2013 (4) ALJ 66 wherein it had held that;

1. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal.

2. The powers under Order 41 Rule 27 CPC given to the first appellate court to take additional evidence is in the nature of exception and has to be exercised in exceptional circumstances with due care and caution.

3. The appellate court may permit additional evidence only and only if the conditions laid down in the said rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence.

4. The matter is entirely within the jurisdiction of the court and is to be used sparingly as the discretion provided therein is a judicial discretion circumscribed by the limitations specified in the rule.

5. The Court shall not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain issue lies fails to discharge the same, would not be entitled to a fresh opportunity to adduce evidence as in such a case the Court can pronounce judgement against him and does not require any additional evidence to enable it to pronounce its judgement in appeal.

6. Under Order 41 Rule 27 CPC, the power given to the appellate court to allow a document to be produced or a witness to be examined, is limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgement. It does not entitle the appellate court to allow a party to remove lacuna in the evidence or supplement the evidence adduced by one party.

7. In absence of satisfactory reasons for the non production of the evidence in the trial court, additional evidence could not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. Thus a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or chose not to do so, cannot have it admitted in appeal.

9. The inadvertence of the party or his inability to understand the legal issue involved or the wrong advice of the pleader or the negligence of the pleader or that the party did not realize the important of the document does not constitute a "substantial cause" within the meaning of this rule. Mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.

10. The words "for any other substantial cause" must be read with the word "requires" in the beginning of the sentence, meaning thereby the rule that the appellate court require additional evidence for any substantial cause, will apply in such a case where it is felt by the appellate court that the evidence had been so imperfectly taken by the trial court that it cannot pass a satisfactory judgement.

11. Whenever the appellate court admits additional evidence, it should record its reasons for doing so, as per sub rule (2) of Rule 27 of Order 41 CPC. The requirement in the said sub rule is with a view to put a check against too easy reception of evidence at a late stage of the litigation and further that the statement of reasons inspires confidence of the litigant and disarm objection. The omission to record the reasons must, therefore, be treated as a serious defect. However, the said provision is only directory and not mandatory, if the admission of such evidence can be justified under the rule.

12. The reasons so requires, are not necessarily to be recorded in a separate order and may be embodied in the judgement of the appellate court.

13. Mere reference to the peculiar circumstance of the case or mere statement that the evidence is necessary to pronounce judgement or that the additional evidence is required to be admitted in the interest of justice, or there is no reason to reject the prayer for admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.

14. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed

In the crux, the application for taking evidence on record at a belated stage cannot be filed as a matter of course or right of the parties. The discretion conferred upon the court is to be exercised by it judicially, taking into consideration the relevant documents in respect of the issue involved in the case and the circumstances under which such an evidence could not be led in the court below, despite due diligence of the party concerned and that such evidence is required to pronounce the judgement by the appellate court.

In any case, such an evidence can be admitted only where the court comes to the conclusion that the application filed to take additional evidence falls with the four corners of the statutory provisions of Order 41 Rule 27 CPC that too for the reasons to be recorded by the court for doing so.

As to the stage of consideration it has been held that even if an application for additional evidence under Order 41 Rule 27 CPC is filed during the pendency of the appeal, it has to be heard at the time of final hearing of the appeal i.e. at the stage when it is possible for the court to reach at its conclusion, after appreciating the evidence already on record that the additional evidence was required to be admitted on record in order to pronounce the judgment or for any other substantial cause.

The reason behind is that in case such an application is considered and allowed at a prior stage, the order would be a product of total and complete non application of mind to the question as to whether such evidence is required to be taken on record to pronounce the judgment or not.

Thus from a careful reading of the above noted judgement, the principles laid down therein as noted above, the law relating to admission of additional evidence under Order 41 Rule 27 CPC is crystal clear. The Court for taking such evidence on record has to exercise its judicial discretion circumscribed by the limitations provided under the statutory provision and that such a consideration can only be made at the time of final hearing of the appeal as it would not be possible for the first appellate court to appreciate the evidence already on record and to record reasons for doing so, at a prior stage.

In the light of the said legal position, in the facts of the instant case, admittedly, there is no dispute about the stage of admission of the additional evidence by the first appellate court. Appeal has been proceeded for final disposal and is being heard by the first appellate court. The reasons for admission of the said evidence has been recorded in the order impugned.

In view of the above admitted facts that the plaintiffs are claiming their right in the disputed house/suit property through their predecessor Arab Khan, and that the defendants are contesting the suit on the ground that the predecessor of plaintiffs namely Sri Arab Khan had sold his share in the disputed house, much earlier, the reasoning given by the first appellate court to take the sale deed dated 01.07.1975 on record, cannot be faulted with. The said sale deed had allegedly been executed by late Arab Khan, the predecessor-in-interest of the plaintiffs, in favour of a third person namely Suresh, and in such a case, it may not be possible for the defendant to bring it on record of the trial court, inspite of due diligence. The discretion exercised by the first appellate court cannot be said to be erroneous in the facts and circumstances of the case.

Moreover, this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot take exception to the discretion exercised by the first appellate court, even if another view is possible. The supervisory jurisdiction cannot be exercised by the High Court to substitute it opinion as an appellate court. It would always be open for the petitioners/plaintiffs to challenge the order of the appellate court adding a grounds of appeal against the appellate decree, if occasion arises.

For all the above noted reasons, this court is not inclined to interfere in the order impugned.

The present petition is found devoid of merits and hence dismissed.

Date :- 04.9.2017

Himanshu