Mrs. Salima Khatoon And Ors. vs Mrs. Prem Rani And Ors.
2007 Latest Caselaw 440 Del

JUDGMENT

Swatanter Kumar, J.

1. The plaintiff Smt. Prem Rani filed a suit for recovery of Rs. 25,200/- and possession in respect of H. No 1749 situated in Hathikhana, Pul Bangash, Delhi against Mst. Salima Khatoon and others, the defendants in the suit. Vide judgment and decree dated 4.8.1999, the suit was decreed for recovery of Rs. 3,600/- on account of damages for the period from 01.06.1982 to 31.05.1985 and for possession against defendant Nos. 1 to 6. Being aggrieved, they filed the present regular first appeal. Along with the appeal, the appellants also filed an application under Order 41 Rules 25 and 27 read with Section 151 of the CPC for framing of additional issues and permission to lead additional evidence in light of the annexures annexed to that application. It was stated in this application that there was a serious question to be determined as to whether there existed a relationship of lessee/tenant in favor of appellant No 1 and even if there was a license in favor of the said appellant, even then, the same was irrevocable on the ground that appellant No 1 in exercise of her right to enjoy the subject property for the purposes of running her shop and residence, has carried out works of permanent nature including re-plastering of walls etc. It is also averred that appellant No 1 was prosecuting the case and due to her illness and pressure of litigation as various cases were pending, the documents could not be placed on record. In paragraph 6 of this application, the following issues have been suggested:

A. Whether there is a relationship of landlord and tenant existing between the parties in respect of shop and the residential premises.

B. Whether defendants are licensee in respect of the shop and the residential premises.

C. If issue No 2, is proved in the affirmative by plaintiff whether license is revocable.

D. Or such other issue as the learned Appellate court may frame.

2. No reply to this application has been filed though the appeal has been pending for number of years but the application was vehemently opposed. During the course of arguments, it was argued on behalf of non-applicants that the appellants had amended the written statement on three different occasions and they had taken up the pleas in the written statement that of tenancy and in alternative that of owners being by adverse possession. It was argued that the application has been filed primarily even to further delay the disposal of the appeal and is an abuse of the process of law. In the written statement filed, ownership of the plaintiff was denied and it was stated that she has no right, title and interest in the property. It was stated that one Sh.Roshan Lal was the tenant on the ground floor of the property and the husband of appellant No 1 and father of other defendants on vacating of the premises by Sh.Roshan Lal occupied the same along with his wife and children and defendant No 1 was accepted as a tenant. Then by subsequent amendments, they had also claimed to be owners by adverse possession. Learned Counsel for the appellants contended that the lease and license have to depend upon the intention of the parties, they are distinct and in either of them since improvements were made, both of them have become permanent and, thus, the court could not pass a decree for possession. In any case, the claim of adverse possession/the claim of accession of land in face of a license, could be raised even by a lessee and that is what the appellants wish to prove by seeking additional issues/permission to lead additional evidence. In this regard he has relied upon the judgments in the cases of Mrs. M.N. Clubwala and Anr. v. Fida Hussain Saheb and Ors. , Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316 and Chapsibhai Dhanjibhai Dand v. Purushottam . In support of their arguments that the provisions of the CPC are not mandatory and they should be liberally construed to grant leave to lead additional evidence, reliance was also placed upon judgment of the Supreme Court in the case of K. Venkataramiah v. A. Seetharama Reddy and Ors. .

3. The provisions of Order 41 Rules 25 and 27 do vest a wide discretion in the appellate court to frame additional issues and to grant permission to the parties to lead additional evidence. This power has to be exercised in accordance with the settled canone of law and cannot be so liberally exercised so as to frustrate the very object and purpose of these provisions. Firstly, the application filed under these provisions must be a bonafide act on the part of the applicant and secondly, the party must be able to show that despite exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time or before passing of the decree appealed against. Wherever an application for additional evidence is allowed by the court, the appellate court is required to record reasons thereof. At this stage itself, reference can be made to the case of The Executive Engineer and Ors. v. Machinery Parts Corporation 2006 VI AD (DELHI) 243, where the court held as under:

7. The above order of the Court clearly shows that the court had granted more than fair opportunity to the defendants to lead evidence. The conduct of the defendants before the Court was of such a nature that the order passed by the learned Trial Court would not call for any interference. Furthermore, the court cannot keep on adjourning the case for evidence of the parties indefinitely and grant adjournments at the mere asking of the parties, without any plausible cause or reason. Reference in this regard can be made to the judgments in the cases of Chander Singh v. Chottulal and Sarjeet Kaur v. Gurmail Singh and Anr. 1999 (3) PLR 402 (Vol.123). In the case of Sarjeet Kaur (supra), the Court held as under:

Language of the impugned order clearly shows that the plaintiff had exhausted all limits for seeking adjournment on every score, whatsoever. The very purpose of granting last opportunity stood frustrated by grant of six subsequent adjournments, but even then the plaintiff neither summoned witnesses nor examined any. Wonder there was any other choice left before the learned trial court but to pass the impugned order. This Court had the occasion to discuss the scope of such power of the court and consequence of persistent default on the part of the party in the trial Court, in the case of Joginder Singh and Ors. v. Smt. Manjit Kaur Civil Revision No 5885 of 1998, decided on 14.1.1999, held as under:

The cumulative effect of the provisions of Order 18 Rule 2 read with Rules 1 and 2 of Order 17 of Code of Civil Procedure and inherent powers of the Civil Court vested in it under Section 151 of the Code, placed an implied obligation on the Court not to adjourn the case unless sufficient cause was shown. The cause by itself cannot always be treated as a ground for repeated adjournments. Un-necessary and avoidable adjournments must be denied by the Courts. On the one hand, trial Courts are expected to dispose of suits and other proceedings expeditiously, and on the other, if parties to a lis are permitted to get the suits adjourned on the mere asking and that too for the indefinite times, it would frustrate the very spirit behind the provisions of the Code of Civil Procedure.

Obligation on a Court cannot be read as construed in isolation. It must find its reasoning from the basic concept of genuine attitude of the litigant. A litigant must help the Court by effective participation for expeditious disposal of the suit. Having taken more than six opportunities after the last opportunity was granted by the Court, the plaintiff can hardly challenge the correctness of the impugned order and more particularly on the ground that the learned trial Court has failed to exercise jurisdiction vested in it or the trial court has wrongly exercised jurisdiction.

The Rajasthan High Court in the case of Chander Singh v. Chottulal , while commenting upon the afore-said provisions of the Code, held as under:

It is clear from the order-sheet of the case that the learned trial Court repeatedly adjourned the case in utter disregard of the provisions of Order 17, Rule 1, C.P.C. Its provisos (b) and (c) run as under:

(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party.

(c) the fact that the pleader of a party is engaged in another Court shall not be a ground for adjournment.

Such liberal attitude of the trial Courts is mainly responsible for the huge arrears of cases and inordinate delay in their disposal. The learned trial Court should have closed the defendant's evidence much earlier. It had acted illegally in granting said adjournments to the defendant. It has not acted illegally or with material irregularity in the exercise of its jurisdiction in any manner in passing the impugned order.

The conduct of the plaintiff-petitioner no way demands exercise of judicial discretion in the Court in his favor on the grounds of equity or legal maxims. Prudent reasoning leads one to no other conclusion but to one that the learned trial Court was fully justified and in fact was left with no alternative other than closing the evidence of the petitioner.

8. In view of the above principle and keeping in view the facts and circumstances of the case, we see no reason to interfere with the order of the Court, particularly when the order was not even questioned by a Revision or any other appropriate proceedings, when the decree was passed i n February 2001.

9. The plaintiff proved his case by leading oral and documentary evidence. The plaintiff discharged the primary onus by examining PW1 who supported the case of the plaintiff. Ex.P3 is the document which bears the signature of the defendant's representative and where it has been recorded that the machine has been tested and is running to the entire satisfaction of the said officer. In face of this document, the onus that the machinery had not been repaired to the satisfaction of the defendants was upon the defendants. But the defendants led no evidence. Vide letter dated 6.2.1993, under Clause '7' the plaintiff had clearly stated that if any other parts need repair or replacement after dismantling the same will be charged extra. This term was accepted by the defendants without any variations. This is so clear vide office order dated 25.2.1993. This term, in any case, would be in consonance with the common practice of the trade as well as the fact that before opening the machine, it cannot be said how much and to what extent is the damage. The defendants cannot be permitted to take advantage of their own default and be heard to say that the findings recorded by the Trial Court, based upon the evidence produced, are factually incorrect or are erroneous in law.

4. Reference can also be made to the judgment of the Punjab & Haryana High Court in the case of Charan Singh v. Ajit Singh etc. CR No 5952/1998, decided on 10.2.99, 1999(2) PLR 671, where the court held as under:

Coming to the merit of this application, certainly there is some element of negligence on the part of the applicant, but that by itself may not be sufficient ground to debar the applicant from proving his case, as pleaded. The leg of the applicant has been amputated as a result of the occurrence. The applicant wish to produce a doctor and the eye witness, which were not examined earlier. The court has to keep in mind the fact that illiterate villagers heavily reply upon the counsel they engage and believe that all necessary to pursue and prove their case would be done by their counsel. If there is a bonafide mistake on the part of the counsel, the parties should normally not be vested with such serious consequences unless the application is malafide and is intended to abuse the process of law. I am unable to find that the present application is not a bonafide one or it amounts to abuse of process of law.

At this stage, I would like to refer to the judgment of this Court rendered in the case Banwari v. Nagina 1998(1) PLR 511. The relevant part of the judgment runs as under:

6. The concept of additional evidence has been given wider dimension in the recent judgment of Hon'ble Apex Court in Jaipur Development Authority v. Smt. Kailashwati Devi (1997-3) 117 P.L.R. 880 (S.C.), where the Court held that additional evidence could be allowed even at the Appellate stage under Rule 27 (aa) of order 41 CPC if the applicant satisfies the basic requirements of the rule and even no evidence has been led by the applicant at the trial stage. In that case ex parte decree was passed against the defendant in the suit, the appeal was preferred before the High Court and two documents were sought to be filed which were in possession of the defendant relating to possession of the suit property. High Court rejected the said prayer, but the same was allowed by Hon'ble Apex Court.

7. The cumulative effect of the above well enunciated provisions governing the subject is that the Court has to exercise its jurisdiction to derive balance between ends of justice and extent of default of the applicant. The powers given to the court under Sub-rule 4 of Rule 2 of Order 18 cannot be curtailed by reading the provisions of Rule 17-A of the same order. Both these provisions must be read and construed harmoniously so as to further cause of justice and necessary for effective and complete adjudication of rival contentions raised by the parties in a suit or proceedings. The procedural law must be moulded to farther cause of justice rather than frustrate the same. Non production of documents after exercise of due diligence appears to be very foundation for filing such an application. Compliance of this condition must be seen in context to the facts and circumstances of the case and in conformity with the record before the Court. Exercise of due diligence would have to give wider and meaningful connotation which must be in conformity with the basic rules of law. In some cases negligence of party or counsel may not really have the effect of rendering such an application untenable. This view finds support from the case of Jaipur Development Authority (supra).

The citation relied upon by the counsel for the petitioner are different on facts. In case of Daya Kaur (supra) the applicant's plea was based on fraud and he had failed to lead any evidence on fraud. In those circumstances, the learned judge came to the conclusion that the application for additional evidence did not satisfied the ingredients of Order 18 Rule 17-A of C.P.C. I am afraid, the said judgment does not help the petitioner on facts of the case."

5. Though, there can hardly be any dispute that an application for framing of additional issues or leading additional evidence can be filed at any stage of the suit but certainly application of that kind would have any merit if the pre-requisite of both Rules 25 and 27 of the CPC are satisfied and furthermore the applicant is able to demonstrate that the application is bonafide and not a mere ploy to delay the determination of the appeal. In the present case, firstly, issues which are sought to be raised now have not even been pleaded specifically in the original or even in the amended written statement and no application for amendment of the written statement has been filed even in the present appeal. The application is vague, uncertain and just annexes certain documents which were even in power and possession of the appellants and were available to the appellants at the time when they led evidence. The annexures annexed to this application and in regard to which the appellant has prayed for leave to lead additional evidence are the documents like photographs, electricity bills and other bills etc. which all were in power and possession of the appellants prior to the passing of the decree. The only reason stated in the application for non production and not proving the said documents in accordance with law is that the appellant No 1 was not well. This is nothing but an attempt to delay the disposal of the appeal in accordance with law. No party to the lis has an indefeasible right to lead additional evidence. In fact, every party is obliged to complete his evidence in all respects before the trial court. Exception to this general rule is to seek permission for additional evidence. The present application lacks bonafides and raises pleas which are not only self-contradictory but are even destructed to each other. Earlier, the pleas of tenancy and adverse possession were taken and now a new case is sought to be established by claiming a permanent license/permanent tenancy relatable to and on the ground of making improvements and constructions of permanent nature. No justification whatsoever have been stated in the application which can constitute a sufficient cause or exhibit bonafides of the appellants in moving such an application. The suit was instituted by the plaintiff somewhere in the year 1985 and during the pendency of the suit, number of opportunities were given to the appellants to lead their evidence. Despite the fact that three amended written statements were filed at different stages after a prolonged trial, the decree was passed in the year 1999 which now is sought to be impliedly disturbed by filing the present application which apparently is nothing but an abuse of the process of law. The judgments relied upon by the learned Counsel appearing for the appellants have no application to the present case. We have already noticed that Rules 25 and 27 of Order 41 are intended to achieve the ends of justice but apparent injustice or abuse of process of law cannot be permitted in the garb of these provisions.

6. Consequently, we find no merit in this application. The same is dismissed while leaving the parties to bear their own costs.