Delhi High Court
Sriniwas vs Vidyawati And Ors. on 29 July, 2005
Author: R Sodhi
Bench: R Sodhi
JUDGMENT
R.S. Sodhi, J.
1. CM(M) 311/2001 is directed against the judgment and order of the Additional District Judge, Delhi in RCA No. 96/2000, whereby the learned Judge has dismissed an application under Order 41 Rule 27 read with Section 151 CPC on the ground that the application does not satisfy the test laid down in Order 41 Rule 27.
2. The facts of the case are that the petitioner herein wanted to lead additional evidence by bringing on record certified copies of a compromise deed dated 14/7/1987 entered between the parties in an eviction petition No. E-57/78. He also wanted to bring on record a notice dated 8th July, 2000.
3. It is contended by counsel for the petitioner that the petitioner has realised after 14 years that his counsel made a mistake by not putting on record the aforesaid documents which would have bearing on the result of the eviction suit. From an analysis of Order 41 Rule 27, it appears to me that additional evidence in the Appellate Court can be allowed only if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or, 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, the Appellate Court requires any document to be produced or any witnesses to be examined to enable it to pronounce Judgment or for any substantial cause. Negligence of counsel is no ground available in Order 41 Rule 27.
4. From a perusal of the Judgment under challenge., it appears to me that the learned Judge has given great thought in analysing the case of the petitioner as also Order 41 Rule 27 and has come to the conclusion that the case of the petitioner is of gross negligence and is covered by judicial pronouncements. The reasoning of the learned Judge appears to be sound and, therefore, needs no interference. However, upon insistence of counsel for the petitioner, I have examined the material that is sought to be brought on record, in particular, the settlement arrived at between parties in the previous suit. Counsel has laid great emphasis that the agreement came about during the pendency of the present eviction petition and, therefore, covered cases where subsequent sub-letting is a ground. With great respect to counsel, I find that the agreement is quite the opposite and that the present petition was maintained because sub-letting was not put an end to inspite of agreement. Be that as it may, after 14 years of delay and neglect, I find no justification in allowing the petitioner to lead additional evidence under Order 41 Rule 27 at the appellate stage. Reference may be had to a judgment of the Supreme Court in Mahavir Singh and Ors. v. Naresh Chandra and Anr., JT 2000 (Suppl. 2) SC 427. wherein the Supreme Court has held as under:
"...additional evidence can be taken only when the conditions and limitations laid down in the said Rule are found to exist. The Court is not bound under the circumstances mentioned under the Rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the Court, which is, of course, to be exercised judiciously and sparingly. The scope of Order XLI, Rule 27 CPC was examined by the Privy Council in Kesowji Issur v. G.I.P. Railway , in which it was laid down clearly that this Rule alone can be looked to for taking additional evidence and the Court has no jurisdiction to admit such evidence in cases where this Rule does not apply. Order XLI, Rule 27 CPC envisages certain circumstances when additional evidence can be adduced:
(i) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(ii) 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
(iii) 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."
5. In view of the above, CM(M) 311/2001 is dismissed. Interim order, if any, stands vacated. CM APPL,. 491/2001 also stands dismissed.
