Shakuntala & Ors. vs Rishi Pal
2012 Latest Caselaw 505 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Judgment: 24.01.2012

+            C.R.P. No.261-70/2006 & CM No. 12211/2006

SHAKUNTALA & ORS.                           ..... Petitioner
                           Through   Mr. Pratap Singh, Adv.
                      versus

RISHI PAL                                 ..... Respondent
                          Through:   Mr.R.K. Jain, Advocate.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 Order impugned before this Court is the order dated

01.05.2006 vide which two applications had been dealt with; the

subject matter of the present petition is the grievance of the

petitioner on the count that his application under Order 41 Rule

27 Of the Code of Civil Procedure (hereinafter referred to as the

'Code') was dismissed.

2 Record shows that the present suit is a suit for possession

and permanent injunction. Contention of the plaintiff is that plot

bearing No. 372/40 situated in village Mangol Pur Khurd was

allotted by the Gram Sabha of the village under a scheme of the

Government for the benefit of landless persons to the plaintiff

against a registered patta certificate dated 21.03.1976; after

raising construction on the said premises, the plaintiff had handed

over this premises on rent to Ram Sunar at a monthly rental of

`500/-; the defendant in connivance with Ram Sunar had taken

illegal possession of the suit property; he had no right, title or

interest in the suit land. Suit had accordingly been filed.

3 The defence of the defendant was that the defendant is in

legal possession of the suit premises the same having been

handed over to him by Ram Sunar who in turn had purchased

from them for a consideration of `40,000/-.

4 Record shows that out of eight issues which were framed,

issue No. 2 and issue No. 3 are relevant for the controversy in

dispute. They read as under:-

2 Whether the plaintiff has suppressed material facts that he has disposed off the property to Ram Sunar for consideration of `40,000/-? OPD 3 Whether the plaintiff is owner of plot bearing No. 40, comprising Khasra No. 372 village Mangol Pur Khurd, Delhi-83 and was allotted by Gaon Sabha of village Mangol Pur? OPP.

5 The findings returned on issue No. 3 was that the plaintiff

has failed to discharge the onus of the said issue; he had failed to

produce any documentary evidence including the registered patta

dated 21.03.1976/any receipt to substantiate his submission that

this plot bearing No. 40 had been allotted to him; having failed to

discharge this onus, this issue was decided against the plaintiff.

The onus to discharge issue No. 2 was upon the defendant; the

defendant also not led any evidence to substantiate the

submission that Ram Sunar had purchased this property for a sum

of `40,000/-; this issue was decided against the defendant. Since

the whole case of the plaintiff was based on the registered patta

dated 21.03.1976 and no documentary evidence having been filed

by the plaintiff to substantiate this submission had been proved;

the suit of the plaintiff stood dismissed on 03.08.2005.

6 The first appeal had been preferred before the first

appellate Court. During the pendency of the appeal, an application

under Order 41 Rule 27 of the Code has been filed; this

application is dated 07.04.2006; the averments in this application

have been perused. It has been stated that the suit of the plaintiff

was in fact based on the registered patta dated 21.03.1976 which

the plaintiff could not produce as inspite of exercise of due

diligence; he was not properly guided by his then Advocate;

prayer for producing additional evidence had accordingly been

made.

7 Needless to state that the defendant had contested this

prayer vehemently. The impugned order had dismissed this

application and rightly so.

8 Order 41 Rule 27 of the Code pre-supposes certain

contingencies which have to be satisfied before an order can be

passed under the aforenoted provision which necessarily

postulates that additional evidence may be permitted in the

following contingencies; Order 41 Rule 27 of the Code reads

herein as under:-

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."

9 None of the aforenoted requirements have been satisfied.

No explanation has been furnished by the plaintiff as to how and

in what circumstances, this document dated 21.03.1976 (which is

the basis and foundation of the entire case of the plaintiff) was not

filed in the trial Court; there is also no explanation as to how he

came across this document; the document had also not been filed

in the first appellate Court along with the application under Order

41 Rule 27 of the Code. The document has now been produced for

perusal of this Court; it is a one page document which is torn from

one corner which does not even bear the signatures of the

executant i.e. of Pradhan; authenticity of the document is clearly

in jeopardy; requirement of Order 41 Rule 27 of the Code have not

even pleaded in the application which is the subject matter of the

impugned order. In no manner can it be said that the order

dismissing this application calls for any interference.

10 At the outset, learned counsel for the respondent has argued

on the maintainability of the present petition; his contention being

that the present petition is not maintainable as an order passed on

an application under Order 41 Rule 27 of the Code can be assailed

only in a second appeal; to support this submission, reliance has

been placed upon the judgment reported as AIR 1997 SC 3572

Gurdev singh and others Vs. Mehnga Ram and another.

11 That apart, the impugned order even on merits in no manner

calls for any interference. Petition is without any merit. Dismissed.

                                          INDERMEET KAUR, J
JANUARY       24, 2012
A