Ram Kumar vs Gulshan Babau And Ors.
2022 Latest Caselaw 130 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 5
 
Case :- MATTERS UNDER ARTICLE 227 No. - 20302 of 2021
 
Petitioner :- Ram Kumar
 
Respondent :- Gulshan Babau And Ors.
 
Counsel for Petitioner :- Anurag Narain,Pawan Kumar Verma
 
Counsel for Respondent :- Vijay Kumar
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(Oral)

1. Heard learned counsel for the petitioner and learned counsel appearing on behalf of the respondent and perused the order impugned dated 09.08.2021 passed by the leaned Additional District Judge, Court No.7, Hardoi, in Civil Appeal no.11 of 2019: Ram Kumar Vs. Gulshanbabu and others.

2. It is the case of the petitioner that a suit for specific performance of contract was filed by the respondent nos.1 and 2 against the petitioner and they impleaded their brother i.e. the respondent no.3 herein as defendant no.2 in the said suit. The plaintiff's case before the learned trial court was that the defendant no.1's mother Smt. Ram Kali had entered into an agreement to sell the property in dispute for an amount of Rs.50,000/-, out of which Rs.30,000/- was given to her and agreement to sell was registered with the understanding that the remaining amount shall be given to her within three years by the plaintiffs and if it is given within time, the mother of the defendant no.1 would execute the sale agreement in their favour. However, despite several attempts being made by the plaintiffs, the mother of the defendant no.1 did not execute the sale agreement in their favour.

3. The petitioner appeared in the Suit and filed written statement before the learned trial court and specifically denied the plaint of the plaintiff stating that Smt.Ram Kali was not the wife of Shambhu Dayal and she had never inherited the property of Shambhu Dayal. The name of the mother of the petitioner was Smt. Shanti Devi and the petitioner along with Smt. Shanti Devi had jointly inherited the property of Shambhu Dayal. No agreement to sell was ever executed by Smt. Shanti Devi. In fact an agreement to sell with regard to the property of the father of the petitioner was executed by one Smt. Ram Kali who was the mother of plaintiffs themselves. Despite such specific claim being made in written statement, no issue was framed by the learned trial court as to whether Smt. Ram Kali and Smt. Shanti Devi were one and the same person and Smt. Shanti Devi is the widow of Shambhu Dayal who has inherited the property along with the petitioner was also known by the name of Ram Kali. The Suit was decreed in favour of the plaintiffs. The petitioner filed an Appeal.

4. In the Appeal, the petitioner filed an application for bringing on record the additional evidence under Order 41 Rule 27 C.P.C. giving a proper explanation for delay caused in bringing such evidence on record. Such evidence was with regard to the khatauni. The petitioner is a resident of Sandi and he tried to find out the khatauni at Hardoi, but the documents were found at Bilgram. The Khatauni was discovered much later after the suit was decreed. A copy of the khatauni issued in 2011 is important for decision of the Appeal, as it shows that Smt. Shanti Devi as widow of Late Shambhu Dayal had inherited the agricultural property of her husband along with the petitioner and this would substantiate the version of the written statement filed by the petitioner.

5. It has been submitted that learned Appellate Court has rejected the application under Order 41 Rule 27 C.P.C. on the ground of delay without looking into the reason for such delay and without looking into clause (c) of Order 41 Rule 27 Clause 1, where it has been clearly stated that 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. Since the entire case of the petitioner/ appellant both before the trial court and the Appellate Court is that his mother Smt. Shanti Devi w/o Shambhu Dayal has never executed agreement to sell but the plaintiffs' own mother Smt. Ram Kali has executed the agreement to sell in favour of the plaintiffs, the entire controversy before the Appellate Court rests upon such document to be filed, and the application of the petitioner for submitting additional evidence has been rejected arbitrarily.

6. Learned counsel for the respondent has read out the order of the learned trial court which had been challenged in the Appeal by the petitioner and has pointed out that no documentary evidence was filed by the petitioner to substantiate his claim i.e. mother's name was Smt. Shanti Devi and not Smt. Ram kali. He had submitted before the learned trial court that his educational certificates like his High School and Intermediate Certificates had the name of his mother Smt. Shanti Devi printed thereon, but such High School and Intermediate Certificates have been misplaced by him. Learned trial court has therefore relied upon the documentary evidence filed by the plaintiffs which showed the receipts issued by the Nagar Nigam for water tax and house tax showing the name of Smt. Ram Kali w/o Shambhu Dayal. In view of the sub-clause (a) and (b) of Clause 1 of Order 41 Rule 27, the learned Appellate Court has rightly rejected the application of the petitioner.

7. In rejoinder, learned counsel for the petitioner has placed reliance upon paragraph-16 to 18 of the judgement rendered by Hon'ble Supreme Court in Shalimar Chemical Works Limited Vs. Surendra Oil and Dal Mills (Refineries) and others, 2010 8 SCC 423.

8. This Court has considered the aforecited judgment. The Appellant therein was a Company and from the year 1945 it was engaged in the business of manufacture and sale of high grade coconut oil used for cooking and manufacturing of other various toilet products under distinctive trade mark "Shalimar". The trade mark "Shalimar" was being infringed by the respondents who were marketing their products by using appellant's registered trade mark. It thus filed a Suit seeking permanent injunction restraining defendants from marketing or offering for sale edible oil products under the trade mark "Shalimar". In course of the trial, the appellant produced before the court photocopies of registration certificates under the Trade and Merchandise Marks Act, 1958 along with the related documents. Such photocopies were marked by trial court as Exhibits A1 to A5 "subject to objection of proof and admissibility".

The Suit thereafter was dismissed by the trial court holding that available evidence on record did not establish the claim of the plaintiff's case because the appellant did not file the trade mark registration certificate in their original. Against the decree of the learned trial court, the appellant filed an Appeal before the Andhra Pradesh High Court, wherein it also filed an application under Order 41 Rule 27 for accepting the originals of the trade mark registration certificates and allied documents as additional documents under Order 41 Rule 7 C.P.C. Learned Single Judge of the High Court allowed the application and also the Appeal. The respondent filed an intra-court Appeal. The Division Bench took a view that there was no occasion or justification for admitting the original trade mark registration certificates at the appellate stage as additional evidence. The High Court enumerated three circumstances as given in Order 41 Rule 27 for production of additional evidence. It thereafter noted that neither of the three conditions was satisfied in the case of the appellants. The original documents were all along in possession of the plaintiff. At no stage the trial court had refused to admit them in evidence and since they were all along in the possession of the plaintiff therefore it could not fill up the lacunae in its case by producing the same in the Appellate Court. Allowing the application at the Appellate stage would cause prejudice to the defendants also.

The Supreme Court considered the arguments raised by learned counsel for the appellant and the judgements relied upon by him more so in case of Sangram Singh Vs. Election Tribunal, AIR 1955 SC 425, wherein it was observed that the Code of Civil Procedure must be regarded as such only a Code of Procedure i.e. "something designed to facilitate justice and not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of Sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it."

The Court considered the fact that serious mistake were committed at all stages, the trial court should not have marked as exhibits the xerox copies of the certificate of registration of trade mark in face of the objection raised by the defendants. It should have declined to take them on record as evidence rather than leaving the issue of admissibility of those copies open and hanging, by marking them as exhibits "subject to objection of proof and admissibility", the appellant was lulled into complacency. Had those xerox copies been rejected by trial court, the appellant would have made all efforts to file them before the learned trial court itself. It observed that the Division Bench of the High Court erred in holding that production of additional evidence was not permissible under Order 41 Rule 27 as such additional documents were liable to be taken on record in the interest of justice.

9. Having considered the judgment rendered by Supreme Court in the matter and also the fact as pleaded in this petition including the observations made by the trial court with regard to the failure of defendants to produce any evidence to show that his mother's name was Smt. Shanti Devi and not Smt. Ram Kali at the stage of trial, but also considering the fact that khatauni in question could not be available to the petitioner because of it being deposited in a wrong Record Room and it being essential for deciding main controversy, this Court is of the opinion that the Appellate Court has taken a hyper technical view of the matter by rejecting the application of the petitioner.

10. The order dated 09.08.2021 passed on Paper No.14-Ga by the Appellate Court is set aside but the Appellate Court while deciding the application afresh shall also give opportunity to the respondent to file additional evidence/ any documentary proof in his possession to show that the name of the appellant's/ petitioner's mother was indeed Smt. Ram Kali and not Smt. Shanti Devi.

11. This petition is accordingly disposed of.

Order Date :- 22.2.2022

Rahul