Delhi High Court
Airports Authority Of India vs Ashok Kumar Malhotra on 30 July, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 847/2012
Date of Decision:30.07.2012
AIRPORTS AUTHORITY OF INDIA ...... Petitioner
Through: Mr.Aly Mirza, Adv. with Mr.
Sunil Ahuja, Adv.
Versus
ASHOK KUMAR MALHOTRA ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution assails the
order dated 30.4.2012 of learned ADJ whereby an application under
Order 41 Rule 27 CPC moved by the petitioner, was dismissed.
2. A suit filed by the respondent herein for declaration and
permanent injunction against the petitioner on 15.6.1988 came to be
decreed against the petitioner on 12.10.2011. The petitioner carried the
matter in appeal before the learned ADJ vide RCA No. 60/2011. During
the pendency of the said appeal, the petitioner filed instant application
on 8.12.2011. It was averred in the application that the ACR of the
respondent for the year 1980 to 1985 were already on record and since
the respondent in his cross examination has admitted the same, it was
not proved. It was also averred that the petitioner has also placed on
record Performance Appraisal Report and related office orders of
promotion and reversion of the respondent to the substantive post for
year 1994 to 1996. Prayer was made to lead the evidence regarding
those documents.
3. I have heard learned counsel for the petitioner and perused the
records. With regard to the averment regarding ACR being on record
and admitted by the respondent, it was submitted by the learned counsel
for the petitioner that though this document was already admitted and so
was not proved during the trial, but to meet the technical objection, the
petitioner may be allowed to exhibit the said document. The learned
ADJ has observed, and rightly so, that in the memorandum of appeal,
the petitioner has already raised this ground assailing the finding of the
Trial Court that these documents were not on record. This was a
question to be determined by the Appellate Court. By way of instant
application, the petitioner seems to be trying to refute the finding of the
Trial Court at this stage and indirectly trying to fill up the lacuna in its
case. Obviously, the provisions of Order 41 Rule 27 CPC could not be
invoked for such purpose.
4. With regard to the second set of documents also, it was the plea of
the petitioner that these were already filed in the Trial Court. That being
so, the petitioner was in the know of its documents and ought to have
proved the same during trial. The petitioner having not opted to lead the
evidence regarding those documents, the same was not permissible
under Order 41 Rule 27 CPC.
5. It is trite that under Order 41, Rule 27, additional evidence could
be adduced in one of the three situations, namely, (a) whether the trial
Court has illegally refused the evidence although it ought to have been
permitted; (b) whether the evidence sought to be adduced by the party
was not available to it despite the exercise of due diligence; (c) whether
additional evidence was necessary in order to enable the Appellate
Court to pronounce the judgment or any other substantial cause of
similar nature. It is equally well-settled that additional evidence cannot
be permitted to be adduced so as to fill in the lacunae or to patch up the
weak points in the case as has been held by the Supreme Court in the
case of N. Kamalam Vs. Ayyaswami, (2001) 7 SCC 503.
6. None of the aforesaid three situations was attracted in the case of
documents sought to be proved by the petitioner at the appellate stage.
7. In view of the above, I do not see any infirmity or illegality in the
impugned order warranting the exercise of power of this court under
Article 227 of the Constitution. The petition has no merit and is hereby
dismissed in limine.
M.L. MEHTA, J.
JULY 30, 2012/akb
