Delhi High Court
Shri Ganga Ram Thr. Lrs vs Sh. Ram Chander on 3 September, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.986/2012 with CM Nos.15303-304/2012
Date of Decision: 03.09.2012
Shri Ganga Ram Thr. LRs ...... Petitioners
Through: Mr. N.S. Dalal, Adv.
Versus
Sh. Ram Chander ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution impugns
order dated 17th August, 2012 of the PO, MACT/ADJ(N), Delhi
whereby application under Order 41 Rule 27 read with Section 151
CPC of the petitioners was dismissed. The petitioners are the LRs
of deceased Ganga Ram, who was defendant No.1 in the suit that
was filed against him by the respondent. During the pendency of the
suit, he expired and his LRs, i.e., the petitioners herein were
impleaded. The said suit was decreed vide judgment dated 22nd
September, 2011. The petitioners/LRs carried the matter in appeal
vide RCA No.47/11 wherein they filed application under Order 41
Rule 27 CPC for leading additional evidence including that of the
Patwari and the Girdawar. The said application was dismissed vide
the impugned order which is under challenge in the instant petition.
2. I have heard the learned counsel for the petitioner and
perused the records.
3. It is notd that in the suit, defendant No.1 Ganga Ram had filed
his affidavit of evidence, but his cross was deferred. He, however,
did not appear for cross examination and consequently on 2nd May,
2006, the Trial Court ordered his affidavit of evidence not to be read
in evidence. The submission of the learned counsel for the
petitioner is that defendant No.1 died on 5th September, 2007 due to
cancer and the petitioners were aware about his affidavit of evidence
being on record and so could not tender the affidavit, as also could
not examine any other witnesses. It is noted by the learned ADJ,
and which is not controverted by the learned counsel for th
petitioners that after the death of defendant No.1 Ganga Ram, his
LRs, namely the petitioners were brought on record on 26th May,
2008. Thereafter, they got several opportunities and the matter was
proceeded for arguments. They availed several opportunities for
arguments and ultimately filed written submissions on 26th May,
2011. Not only that, they also sought time for filing written
submissions in rebuttal to that of the plaintiff. Thereafter, they
stopped appearing and the matter was reserved for judgment, which
was ultimately delivered on 22nd September, 2011. The learned
ADJ has noted, and rightly so, and which is also not controverted by
the counsel for the petitioners that in the written submissions which
was filed, the reference has been made in detail to the evidence on
record, which would clearly show that they were well aware of the
absence of their evidence on record. No request was made by them
at any point of time since from the day of their being on record on
26th May, 2008 till the decision rendered by the Trial Court. It is
only for the first time that a request was made by way of instant
application for leading additional evidence. The provisions of Order
41 Rule 27 do not come to the help of the petitioners as a matter of
routine or of right. Unless the case comes in any of the sub-clauses
of sub-Rule (1) of Rule 27, the Appellate Court cannot entertain the
request for production of additional evidence, oral or documentary.
It was not their case that the Trial Court had refused to admit their
evidence, which ought to have been admitted. It is also not their
case that they could not produce the evidence despite exercise of due
diligence or that such evidence was not within their knowledge or
could not be produced despite exercise of due diligence at the time
of the decree was passed. From the proceedings, as noted above, it
would be seen that they were well aware of the fact of the affidavit
of evidence of Ganga Ram being on record and also that there was
no other evidence led by them. They had not demonstrated exercise
of any due diligence or that the evidence sought to be produced was
not in their knowledge.
4. I do not see any illegality or infirmity in the impugned order.
The petition has no merit and is dismissed in limine.
M.L. MEHTA, J.
SEPTEMBER 03, 2012
skw
