Agya Ram Sood vs Sameer Wason & Anr.
2010 Latest Caselaw 819 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+              C.M. (Main) No.185 of 2010 & C.M. Appl. Nos.2427-2428 of 2010

%                                                                            11.02.2010

       AGYA RAM SOOD                                            ......Petitioner
                                     Through: Mr. P.P. Ahuja, Advocate.

                                          Versus

       SAMEER WASON & ANR.                                        ......Respondents

                                                     Date of Reserve: 8th February, 2010
                                                     Date of Order: 11th February, 2010

       JUSTICE SHIV NARAYAN DHINGRA

1.     Whether reporters of local papers may be allowed to see the judgment?

2.     To be referred to the reporter or not?

3.     Whether judgment should be reported in Digest?

                                    JUDGMENT

1. By this petition, the petitioner has assailed an order dated 31st October, 2009

passed by the learned first appellate court (Rent Control Tribunal) dismissing an

application under Order 41 Rule 27 read with Order VI Rule 17 CPC seeking permission

to examine additional evidence at the stage of appeal and amendment of the written

statement.

2. The petitioner in this application prayed for examination of Mr. Ashwani Kumar

Dandona, Advocate to prove that along with the notice dated 17th August, 1998 served on

behalf of the petitioner to respondent No.2, a pay order issued by Oriental Bank of

Commerce for a sum of Rs.1,716/- as arrears of rent was also sent. The application was

opposed by the respondents on the ground that Mr. Ashwani Kumar Dandona was the

advocate of the petitioner during trial. The written statement was filed by the petitioner

through the same advocate. The witness from Oriental Bank of Commerce wherefrom

draft was got prepared was also examined and the evidence on this issue, whether the

draft was sent or not, was led. The learned first appellate court observed that issue was

amply clear that from the very beginning. The appellant knew that the pay order has not

been encashed and in that circumstance, it was for him to lead necessary evidence before

the Additional Rent Controller. The evidence which was not led at the stage of trial but

was within the knowledge of the petitioner, cannot be permitted at the stage of appeal and

the appellate court dismissed the application.

3. Under Order 41 Rule 27 CPC, the additional evidence can be allowed at the stage

of appeal under following circumstances:-

(i) The evidence sought to be led was refused to be admitted by the trial court.

(ii) The applicant, despite due diligence, had no knowledge of existence of the

evidence or despite due diligence could not be produced by him before the trial

court.

(iii) The appellate court required any documents to be produced or any witness to be

examined to enable it to pronounce the judgment or for any substantial cause.

4. Thus, the additional evidence under Order 41 Rule 27 CPC cannot be allowed if

above three circumstances are not there. It is not the case of the petitioner that the trial

court had refused to admit any document or evidence produced by the applicant. It is also

not the case of the petitioner that the evidence sought to be produced was not within his

knowledge or he could not produce it despite due diligence. The witness sought to be

examined was the very advocate of the petitioner who conducted the trial. The notice in

question was also sent by him. In the written statement, a plea was also taken that the

alleged demand draft was sent along with notice. Thus, the evidence was within the

knowledge of the petitioner. The witness sought to be examined was none else but the

advocate of the petitioner. Thus, the case is not covered under the second ground for

allowing evidence. It is not the case that the appellate court required any document to be

produced before it to enable it to pronounce the judgment.

5. Order 41 Rule 27 CPC cannot be resorted to by the parties to examine left out

witnesses at the appeal stage nor for producing the witnesses which a party deliberately

did not examine at the trial stage and when during appeal a weak case I sensed seeks

examination of such witnesses. Neither this rule can be taken recourse to since the party

finds that some material could have tilted the decision but has not been produced before

the trial court though it was within the knowledge; neither inadvertence is a ground

recognized under Order 41 Rule 27 CPC to enable a party to seek production of

additional evidence. The petitioner was not entitled to produce additional evidence unless

he showed that in spite of due diligence, he could not produce witness who was necessary

to be examined to pronounce the proper judgment.

6. I, therefore, find no infirmity in the order of the first appellate court. The present

petition is not maintainable and is hereby dismissed.

SHIV NARAYAN DHINGRA J.

FEBRUARY 11, 2010 'AA'