Allahabad High Court
Sanjay Kumar And Anr. vs Smt Lotika Gargary (Died) Represented ... on 19 February, 2025
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:11752
Court No. - 19
Case :- CIVIL REVISION No. - 6 of 2025
Revisionist :- Sanjay Kumar And Anr.
Opposite Party :- Smt Lotika Gargary (Died) Represented By Ram Krishna Mission Thru. Secy. And Ors.
Counsel for Revisionist :- Pratap Singh Mehra,Dheeraj Kumar Yadav
Counsel for Opposite Party :- Deepanshu Dass,Yogesh Gurnanee
Hon'ble Manish Mathur,J.
1. Heard Mr. P.S. Mehra learned counsel for revisionist and Mr. Deepanshu Dass learned counsel for opposite party No.4.
2. Civil revision under Section 115 of the Code of Civil Procedure has been filed against order dated Ist January, 2005 passed in regular civil appeal No. 177 of 2001 whereby application No. C-353 submitted by the revisionist as appellants for production of additional evidence under Order 41 Rule 27 of the Code has been rejected.
3. Learned counsel for revisionists submits that property in question earlier undisputedly was in the title and ownership and possession of Mr. H.N. Gargary. With regard to property in question, three separate suits were filed with Suit No. 354 of 1983 being filed by Mr.H.N. Gargary against the Ram Krishna Mission (opposite party no. 4 herein) for cancellation of registered gift deed dated 07.02.1981 and the registered correction deed dated 26.09.198 allegedly executed by Mr.H.N. Gargary in favour of the Mission.
4. The second suit bearing Regular Suit No. 106 of 1984 was instituted by one Ms. Jhutika Chatterji for declaration of title on the basis of a will deed dated 04.04.1976 allegedly executed by Mr. H.N. Gargary in her favour which was registered posthumously. The defendants in this suit were wife, son and daughter of Mr. H.N. Gargary, who are arrayed as opposite parties no.1, 2 and 3 in the present revision.
5. The third suit bearing Regular Suit No. 150 of 1993 was instituted by the Ram Krishna Mission for arrears of rent and ejectment of sole defendant, Ms.Jhutika Chatterji. The basis of claim was the registered gift deed dated 07.02.1981 and the registered correction deed dated 26.09.1981.
6. It is submitted that during pendency of Regular Suit No. 354 of 1983, Mr. H.N. Gargary passed away on 04.12.1983 and was substituted by Ms. Jhutika Chatterji claiming herself to be the sister-in-law of Mr.H.N. Gargary on the basis of will deed dated 04.04.1976. The wife, son and daughter of Mr.H.N. Gargary were arrayed as defendants in the aforesaid proceedings.
7. The three suits were thereafter consolidated and were decided by means of common judgment and order dated 31.07.2001 whereby Suits No. 354 of 1983 and 106 of 1984 were dismissed while decreeing Regular Suit No. 150 of 1993.
8. Against the aforesaid judgment, three separate first appeals bearing No. 177 of 2001, 178 of 2003 and 179 of 2001 were preferred and in all the appeals, the sole appellant was Ms.Jhutika Chatterji. The first appeals are said to be yet pending.
9. It is submitted that during pendency of the aforesaid first appeals, the sole appellant Ms.Jhutika Chatterji passed away on 12.06.2006 whereafter revisionists herein, Mr. Sanjay Kumar and Mr. Vijay Kumar filed their substitution application on the basis of registered adoption deed and registered will deed dated 17.02.2005 said to have been executed by Ms. Jhutika Chatterji in their favour.
10. The said substitution application was allowed by means of order dated 28.07.2007 which was unchallenged.
11. Subsequently the application was preferred by the revisionist under Order 41 Rule 7 of the Code for adducing additional evidence, which has been rejected by means of the impugned order.
12. Learned counsel for revisionist submits that the first appellate court while rejecting the aforesaid application has committed an error in law by improper appreciation of provisions of Order 41 Rule 7 of the Code particularly in view of specific averments being taken in the application that the aforesaid documents could not be brought on record despite due diligence and it was only after going through the belongings of original plaintiff that the said documents were obtained and their originals were filed alongwith the applications.
13. It is also submitted that first appellate court has completely ignored the fact that aforesaid documents would be required to be examined in the light of stand taken by the revisionist as appellants that the registered gift deed dated 7th February, 1981 and the registered correction deed dated 26th September, 1981 were not executed by Mr. Gargary in his correct frame of mind and would also indicate suspicious circumstances for execution of the aforesaid deed. It is therefore submitted that it was incumbent upon the first appellate court to have allowed the applications in order to do substantive justice.
14. Learned counsel for opposite party No.4 has refuted submissions advanced by learned counsel for revisionist with submission that provisions of Order 41 Rule 27 are quite specific in nature and commences in negative tones with specific grounds being indicated for allowing additional evidence at the first appellate stage. It is submitted that since aforesaid conditions were not fulfilled, the first appellate court has rightly rejected the application.
15. It is also submitted that original plaintiff, Mr. H.N. Gargary instituted the suit proceedings in 1983 whereafter Ms. Juthika Chhaterji was substituted in his place on 4th December, 1983 and continued to be a plaintiff till 12th June, 2006 whereafter the present revisionist was substituted in her place by means of vide order dated 28th July, 2007 but there is no explanation as to why the grounds being sought to be introduced by means of additional evidence could not have been taken by Ms. Chhaterji or even by the current revisionists for the past so many years.
16. Learned counsel has relied upon judgments in the cases of Government of Karnataka and another versus K.C. Subramanya and others, 2014 (13) SCC 468; Shivarao Nilangekar Patil versus Dr. Mahesh Madhav Gosavi and others, 1987 (1) SCC 227 and Dr. Chandra Deo Tyagi versus Additional District Judge Court No.1, Meerut and others, 2020 (7) ADJ 216,
17. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, the provisions of Order 41 Rule 27 of the Code are required to be examined for proper adjudication of the present dispute.
18. The provisions of Order 41 Rule 27 are as follows:-
"Order 41 Rule 27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled 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.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
19. From examination of the aforesaid provision, it is evident that the said provision commences on a negative note and specifies conditions whereunder additional evidence can be produced in the appellate court.
20. In the present case, the application has been preferred in terms of Rule 41 Rule 27(1)(aa) of the Code which clearly indicates that such additional evidence can be permitted at the appellate stage where the party seeking to produce such additional evidence establishes that notwithstanding exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of such due diligence be produced by him at the time when the decree appealed against was passed.
21. In its impugned order, the first appellate court has rejected the application primarily on the ground that Ms. Juthika Chhaterji was a plaintiff since 1983 till 2006 and could very well have produce such an evidence particularly in view of averments made in paragraph No. 4 of the application that such documents pertaining to health of Mr. Gargary were found from her belongings. The order also indicates that the present revisionist would only step into shoes of the original plaintiff and can not set a new case at the first appellate stage. The order also indicates that despite the fact that present revisionist have been impleaded in 2007, there is no cogent explanation for preferring such an application at such a belated stage in 2023.
22. In view of reasons indicated in the order impugned as well as provisions of Order 41 Rule 27 of the Code, it is evident that law with regard to such proceedings have already been enunciated by Hon'ble Supreme Court in the case of Union of India versus Ibrahim Uddin, (2012) 8 SCC 148. The relevant paragraphs of the aforesaid judgment are as follows:-
"36.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. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (VideK. Venkataramiahv.A. Seetharama Reddy[AIR 1963 SC 1526] ,Municipal Corpn. of Greater Bombayv.Lala Pancham[AIR 1965 SC 1008] ,Soonda Ramv.Rameshwarlal[(1975) 3 SCC 698 : AIR 1975 SC 479] andSyed Abdul Khaderv.Rami Reddy[(1979) 2 SCC 601 : AIR 1979 SC 553] .)
37.The appellate court should 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 point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (VideHaji Mohammed Ishaqv.Mohd. Iqbal and Mohd. Ali and Co.[(1978) 2 SCC 493 : AIR 1978 SC 798] )
xxx xxx xxxxx
39.It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in theabsence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should 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. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (VideState of U.P.v.Manbodhan Lal Srivastava[AIR 1957 SC 912] andS. Rajagopalv.C.M. Armugam[AIR 1969 SC 101] .)"
23. The same is the reasoning indicated in the judgments cited by learned counsel for opposite party.
24. Upon applicability of aforesaid judgements in the present facts and circumstances of the case, it is evident that the grounds and evidence so sought to be introduced in terms of Order 41 Rule 27 of the Code were not taken even by the original plaintiff, Mr. Gargary nor even such additional evidence was ever sought to be introduced by substituted plaintiff, Ms. Ms. Juthika Chhaterji who remained a plaintiff since 4th December, 1983 till 12th June, 2006. The present revisionist also were substituted vide order dated 28th July, 2007 but the application has been preferred only on 20th February, 2023.
25. In paragraph No.4 of the application, it has been specifically averred that the documents sought to be brought on record as additional evidence were recovered from the belongings of Ms. Ms. Juthika Chhaterji, leading to an inference that the said lady had always got possession of the aforesaid documents and yet such documents were never produced as evidence either during the trial proceedings or even at the first appellate stage during the time she continued as plaintiff.
26. It is also relevant that the current revisionist was substituted on 28th July, 2007 but the application has been preferred belatedly in year 2023 without indicating any due diligence or cogent reason for not preferring such an application earlier.
27. In the considered opinion of this Court, a person substituted as a party would only step into shoes of the party whom he is substituting and as such the aspect of due diligence in terms of Order 41 Rule 27 of the Code would be required to be seen in terms of the stand taken by the original plaintiff and not from the substituted party.
28. Considering the reasonings indicated in the impugned order and the discussion made herein above, it being evident that provisions of Order 41 Rule 27(1)(aa) of the code having not been complied with by the revisionist in their application, there is no occasion to interfere with the order impugned.
29. The civil revision therefore being devoid of merits is dismissed. Parties to bear their own cost.
Order Date :- 19.2.2025
prabhat
