Delhi High Court
M/S Sikka Kwick Handling Services ... vs M/S Unistyle Images Pvt Ltd on 23 April, 2018
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23rd April, 2018
+ RFA 635/2016 & CM APPL. 31482/2016
M/S SIKKA KWICK HANDLING SERVICES (P)
LTD ..... Appellant
Through: Mr. Jatin Sapra, Advocate (M-
9312223395).
versus
M/S UNISTYLE IMAGES PVT LTD ..... Respondent
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This is an appeal filed by the Appellant/Plaintiff (hereinafter,
„Plaintiff‟) challenging the order dated 31st March, 2016. The Plaintiff had
instituted a suit for recovery against the Defendant/Respondent (hereinafter,
„Defendant‟) claiming a sum of Rs.3,57,550/-. After summons was issued in
this suit, the Defendant did not appear and accordingly on 13 th May, 2015,
the Defendant was proceeded ex-parte. The Trial Court, thereafter, recorded
ex-parte evidence on behalf of the Plaintiff.
2. The Plaintiff's witness Mr. Harvinder Singh, Assistant Manager, apart
from his authorization produced the following documents:
i) Original Board Resolution dated 29th September, 2014 as Ex.
PW-1/A;
ii) Board Resolution dated 7th July, 2015 as Ex. PW-1/IA;
iii) Invoice No.39 as Ex. PW-1/B;
iv) Ledger account as Ex. PW-1/C, and
v) Affidavit alongwith 65B Certificate as Ex. PW-1/D.
3. The Trial Court recorded that there were three invoices which ought
to have been produced by the Plaintiff i.e., invoice dated 16th May, 2013 for
Rs.5,26,607/-, and invoices dated 31st May, 2013 for Rs.25,711/- and
Rs.13,15,761/-. Out of these three invoices, only one invoice was produced
i.e., invoice dated 16th May, 2013. Both the invoices dated 31st May, 2013
were not produced by the Plaintiff. As per the ledger account, PW-1/C, the
outstanding amount claimed in respect of the Defendant was Rs.2,84,820/-.
However, without producing the said invoices, the liability of the Defendant
could not be established by the Plaintiff. The Trial Court therefore,
dismissed the suit for non-prosecution of the invoices.
4. Notice was issued in the appeal on 30th August, 2016. However, none
has appeared for the Defendant. The Defendant was proceeded ex-parte in
the appeal on 20th December, 2017. The Plaintiff has filed an application
under Order XLI Rule 27 seeking permission to bring on record additional
documents i.e., the other two invoices not produced before the Trial Court. It
is his submission that the ledger account was already on record before the
Trial Court. The suit could not have been dismissed.
5. This Court has heard arguments on behalf of the Plaintiff. There is no
doubt that the Plaintiff failed to produce two invoices which form the basis
of his claim. A mere ledger account, without support from the background
documents, cannot be taken to be true and correct, especially, when the
Plaintiff's witness has not been cross examined. The Plaintiff ought to have
produced the two material invoices before the Trial Court and having failed
to do so, the Trial Court was right in dismissing the suit.
6. Counsel for the Plaintiff submits that both the invoices were available
but it was never advised that the non filing of invoices could lead to
dismissal of the suit. Both the invoices were traced in its records and have
been filed with the application. As held in Mahavir Singh & Ors. v. Naresh
Chandra (2001) 1 SCC 309 additional evidence may be permitted by the
Appellate Court for various reasons and one such reason would be the
inability of the Court to pronounce judgment owing to a lacuna or defect in
the evidence as it stands. The Supreme Court observed as under:
"5. Before we proceed further we would like to refer to
the scope of an application under Order XLI, Rule 27
CPC. Section 107 CPC enables an appellate court to
take additional evidence or to require such other
evidence to be taken subject to such conditions and
limitations as are prescribed under Order XLI, Rule 27
CPC. Principle to be observed ordinarily is that the
appellate court should not travel outside the record of
the lower court and cannot take evidence on appeal.
However, Section 107(d) CPC is an exception to the
general rule, and additional evidence can be taken
only when the conditions and limitations laid down in
the said rule are found to exist. The court is not bound
under the circumstances mentioned under the rule to
permit additional evidence and the parties are not
entitled, as of right, to the admission of such evidence
and the matter is entirely in the discretion of the court,
which is, of course, to be exercised judiciously and
sparingly. The scope of Order XLI, Rule 27 CPC was
examined by the Privy Council in Kesowji Issur v.
G.I.P. Railway AIR 1931 PC 143, in which it was laid
clown clearly that this rule alone can be looked to for
taking additional evidence and that the court has no
jurisdiction to admit such evidence in cases where this
rule does not apply. Order XLI Rule 27 CPC envisages
certain circumstances when additional evidence can be
adduced:
(i) the court from whose decree the appeal is
preferred has refused to admit evidence which ought
to have been admitted, or
(ii) 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
(iii) 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.
In the present case, it is not the case of either party
that the first situation is attracted. So far as the second
circumstance noticed above is concerned, question of
exercise of due diligence would not arise because the
concerned scientific laboratory from which
examination is sought to be made itself was not in
existence at the time of trial and so that clause is also
not attracted. In the third circumstance the appellate
court may require any document to be produced or any
witness to be examined to enable it to pronounce
judgment, or for any other substantial cause. The
expression "to enable it to pronounce judgment" has
been subject of several decisions including Syed Abdul
Khader v. Rumi Reddy and Ors. [1979]2SCR424
wherein it was held that when the appellate court finds
itself unable to pronounce judgment owing to a lacuna
or defect in the evidence as it stands, it may admit
additional evidence. The ability to pronounce a
judgment is to be understood as the ability to
pronounce a judgment satisfactory to the mind of court
delivering it. It is only a lacuna in the evidence that
will empower the court to admit additional evidence.
[See: The Municipal Corporation of Greater Bombay
v. Lala Pancham and Ors. [1965]1SCR542]."
7. The Court has seen the records and it appears that the claim of the
Plaintiff is not dubious. Considering that the invoices are available with the
Plaintiff and the Defendant has not appeared either before the Trial Court or
before this Court, no prejudice would be caused if the Plaintiff is permitted
to file the said two invoices and prove its case.
8. In view of the above facts and circumstances, the Plaintiff is permitted
to lead supplementary evidence for production of two invoices dated 31st
May, 2013 in support of its claim and prove the same in accordance with
law. The said permission is being granted, subject to payment of Rs.10,000/-
as costs to be paid to the Delhi High Court Legal Service Committee. The
appeal is allowed in the above terms. The costs shall be deposited within a
period of two weeks.
9. The Trial Court record be sent back to the Trial court and the matter
be listed for further proceedings on 15th May, 2018, on which date, the Trial
Court shall confirm that the costs have been deposited and thereafter
proceed further in the matter. Appeal is accordingly allowed in the above
terms.
PRATHIBA M. SINGH
JUDGE
APRIL 23, 2018
Rahul
