Smt. Chanan Kaur & Ors. vs Shri Ajit Singh
2011 Latest Caselaw 4026 Del

     IN THE HIGH COURT OF DELHI AT NEW DELHI


                  Judgment delivered on: 18th August, 2011



   CM Nos.4264/2008 & 13395/2011 in RFA No. 329/97



Smt. Chanan Kaur & Ors.                 ...... Appellants.

                  Through: Mr.Sanjeev Sindhwani, Adv.


                          Vs.


Shri Ajit Singh                         ......Respondent

Through: Mr. S.K. Kalia, Adv.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                        Yes
2. To be referred to Reporter or not?                     Yes


3. Whether the judgment should be reported
   in the Digest?                                         Yes





 KAILASH GAMBHIR, J.Oral:

1. This order shall dispose of two applications filed by

the appellants bearing C.M. No. 4264/2008 and C.M. No.

13395/2011 filed under Order XLI Rule 27 read with Section 151

CPC.

2. By filing the application bearing C.M No. 4264/2008,

the appellants seek to place on record a statement stated to be

in the hand writing of Shri Ajit Singh, the respondent herein,

which contains the account pertaining to plot no. E-262, Greater

Kailash-I, New Delhi. This application was moved by the

appellants in the month of March, 2008 and the subsequent

application bearing No. 13395/2011 under the same provision,

has been moved by the appellants in July 2011 seeking to place

on record the original documents which are on plain sheets

stated to be in the hand writing of Shri Ajit Singh containing

the expenses incurred by Shri Bachan Singh and Shri Ajit

Singh for construction of plot no. E-262, Greater Kailash-1, New

Delhi.

3. Pending before this court is the appeal filed by the

appellants Smt. Chanan Kaur and others, challenging the

impugned judgment and decree dated 30.9.1997, whereby a

suit for possession in respect of ground floor of property

bearing no.L-59, Kalkaji New Delhi was decreed in favour of the

respondent and against the appellants. Before arguing the

present applications, Mr. Sindhwani, learned counsel for the

appellants gave a brief background of the facts of the case

relevant for deciding the present applications. As per the

counsel, Shri Arjan Singh, Shri Bachan Singh and Shri Sadhu

Singh were three brothers who were carrying on a joint

business of building contractors and the defence taken by the

appellants in the suit for possession filed by the respondent was

that the property bearing no. L-59, Kalkaji, New Delhi was

jointly purchased by Shri Bachan Singh and Shri Arjan Singh,

i.e. father of the respondent and husband of the appellant no.1

respectively, and the entire construction on the said plot of the

property was carried out from the joint funds of Shri Bachan

Singh and Shri. Arjan Singh. Counsel also submits that it was

also the case of the appellants in the written statement that

on the said plot, two separate portions with separate entrances

were constructed and through this fact it becomes apparent

that the two separate portions belonged to the two separate

branches of the family i.e. of Shri Bachan Singh and Shri

Arjan Singh. It is further the case of the appellants that

because of the family being a very close knit unit therefore out

of mutual affection the said property was purchased in the

name of Shri Ajit Singh, the respondent herein, son of Shri

Bachan Singh who was the eldest amongst all the cousins i.e.

the respective sons of all the aforesaid three brothers. It is also

the case of the appellant that taking advantage of the fact that

the property was purchased in the sole name of Shri. Ajit Singh,

he had filed a suit for possession against the appellants.

Counsel has also pointed out that the respondent has yet filed

another suit for possession in respect of the portion on the 1st

floor and portion above in the same property and the said suit is

pending consideration before the Original Side of this Court. It

is also the case of the appellants that the documents now sought

to be placed on record by the appellants have also been filed by

the appellants in the said suit.

4. Arguing these applications, Mr. Sindhwani, submits

that the documents sought to be placed on record by the

appellants are important to effectively determine the

controversy involved between the parties but the same could

not be placed on record by the appellants earlier despite the

exercise of due diligence and it is only when the appellants were

to cross-examination of the witnesses of the respondent in the

other case i.e. Suit No. 2195/98, further search was made by

the appellants and these documents could be traced in the old

trunks and almirahs belonging to the husband of the appellant

no.1. Explaining the authenticity of these documents, the

counsel submits that these documents are in the hand writing

of Shri Ajit Singh giving details of the breakup of the

expenditure incurred by Shri Ajit Singh and Shri Bachan Singh

towards the consideration of the plot no. E-262, G.K.-1, New

Delhi. Counsel also submits that in fact the first document filed

by the appellants along with C.M. 4262/2008 clearly shows that

the amount of Rs.6,000/- was contributed by the appellants

towards the construction of plot bearing No. L-59 Kalkaji.

Counsel also submits that the last entry of Rs.32139.88 in the

second set of documents also tallies with the document filed by

the appellants with the first application and this carry forward

entry of Rs.32139.88 would clearly demonstrate the

genuineness of these documents and would inspire confidence

for their admission even at this belated stage. Counsel also

submits that due to the genuineness of these documents and

the bona fide reasons given by the appellants, the unintentional

delay on the part of the appellants in non-filing of these

documents be not taken adverse to defeat their rights to prove

their defence.

5. On the other hand, both these applications are

strongly opposed by Mr.S.K. Kalia, learned counsel for the

respondent.

6. I have heard learned counsel for the parties at

considerable length and gone through the records.

7. The principle to permit a party to lead additional

evidence at the appellate stage is well-settled. Order XLI Rule

27 CPC envisages four situations in which the appellate Court

may allow a party to produce the additional evidence at the

appellate stage. They are:-

(a) that the Trial court has refused to admit

evidence which ought to have been admitted, or

(b) the parties seeking to produce additional evidence

could not produce the said evidence despite the exercise of due

diligence, or

(c) the appellate Court requires any document to be

produced so as to enable it to pronounce judgment, or

(d) for any other substantial cause.

8. The production of additional evidence at the appellate

stage is not a matter of right and unless the case of the parties

seeking to file additional evidence falls under any of the above

conditions the appellate court will be hesitant to allow

production of additional evidence at the appellate stage. It

cannot be allowed to give an opportunity to the party to fill in

the lacuna existing in its case or to bring on record something

that would lead to tilting the balance in his favour. The

discretion to allow or disallow the additional evidence at the

appellate stage, however, has to be reasoned one. Here it would

be relevant to refer to the observations of the three bench

decision of the Supreme Court in the case of Arjun Singh vs.

Kartar Singh AIR 1951 SC 193 as under:

The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in Order XLI, rule 27, of the Civil Procedure Code. If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent. As laid down by the Privy Council in the well-known case of Kessowji Issur v. G.I.P. Railway 34 I.A. 115, "the legitimate occasion for the application of the present rule is when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the court, of fresh evidence and the application is made to import it;

The case of the applicants in the present case would fall under

clause 1(aa) of rule 27 as the applicants seek to place on record

some old documents which the applicants have been able to lay

their hands only in 2008 and 2011. It has been held by the Apex

court in various decisions that the applicants under this clause

have to establish that the evidence was not within the

knowledge or could not after the exercise of due diligence be

produced by him at the time of passing the decree appealed

against . Hence, clearly the onus is on the applicants to satisfy

this court that despite exercise of due diligence they could not

have produced the said documents. Now whether the parties

have acted with due diligence or not is a matter to be

determined by the court from the facts and circumstances of

each case. Here it would be useful to refer to the judgment of

the Apex Court in the case Chander Kanta Bansal vs.

Rajinder Singh Anand (2008)5SCC117 where the court

explained the concept of due diligence as under:

"The words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs."

Hence what is to be shown that even after reasonable care, the

documents could not have been produced before the passing of

the decree. It is also statutorily settled that it is not a vested

right of any party to produce the additional evidence at the

appellate stage as the stage of filing the documents in terms of

Order 13 Rule 1 CPC is on or before the settlement of the issues.

Here is a case where the appellants seek to place on record

certain writings alleged to be in the handwriting of Shri Ajit

Singh who is respondent No.1 herein and pertains to

investments or expenses incurred by Mr. Bachan Singh and Shri

Arjan Singh (father of Mr. Ajit Singh) towards the construction

of a property being E-262, Greater Kailash-I, New Delhi. The co-

relation of these documents pleaded by the appellants is that

Shri Bachan Singh and Shri Arjan Singh were jointly incurring

expenses towards the construction of the Greater Kailash-I

property and arising out of the said income of the joint

investment, an amount of Rs.6,000/- was adjusted by Shri Arjan

Singh out of the share of Mr. Bachan Singh. To explain the filing

of these documents at such a belated stage, the stand taken by

the appellants is that the documents were found from some old

trunks and almirahs belonging to the husband of the appellant

No.1 when extra efforts were put by the appellants to search the

documents at the stage of cross-examination of the witnesses of

the respondent in the other suit. Indisputedly, the suit for

possession was filed by the respondent, Shri Ajit Singh in the

year 1984 and the said suit was decreed by the learned Trial

Court as long back as in the year 1997.

9. As the present appeal before this Court is also

pending since 1997, the first application by the appellants under

Order 41 Rule 27 CPC was filed on 18.03.08 while the second

application was filed by the appellants on 20.07.11. In both the

applications, the appellants have given a common ground to

explain the reasons for not filing these documents before the

learned Trial Court. The common ground which has been

disclosed in both the applications is that only when cross-

examination of the witnesses of the respondent was in progress

in the other suit bearing No.2195/98, the appellants had put

some extra efforts to search the old trunks and almirahs and

found the said documents. Surprisingly, the appellants could

not seek production of the additional documents through a

single application although in both the applications, there exists

a common ground to explain the reasons for non-filing of the

documents before the Trial Court. Hence, as discussed above,

this court is of the considered view that the applicants have not

been able to show due diligence for satisfying the requirement of

Order 41 Rule 27 in both the applications. It cannot be believed

that the records which were well available with the appellants

were not searched by them for such a long period for more than

24 years.

10. Counsel for the appellants was put a specific question

by this Court as to whether even in their written statement any

such defence was raised by the appellants that a sum of

Rs.6,000/- was adjusted by Mr. Bachan Singh towards the cost of

suit property, out of the joint accounts maintained by Mr.

Bachan Singh and Shri Arjan Singh for carrying on the

construction of Greater Kailash-I property. Counsel fairly

stated that no such defence was raised by the appellants in their

written statement. Without commenting upon the authenticity

and the genuineness of these documents as these very

documents have also been filed by the appellants in the other

case pending before this Court on the Original Side, it would be

suffice to mention that this Court does not find the reasons given

by the appellants cogent and sufficient enough to satisfy the

requirement laid down under Order 41 Rule 27 CPC.

11. In the light of the above, this Court does not find any

merit in both these applications. The same are accordingly

dismissed.

KAILASH GAMBHIR, J AUGUST 18, 2011