Delhi High Court
Nirmal Devi Ors & Anr. vs Rakesh Kumar Jain & Ors. on 9 December, 2020
$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 09.12.2020
+ CM(M) 619/2020
NIRMAL DEVI ORS & ANR. ..... Petitioners
versus
RAKESH KUMAR JAIN & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioners: Mr. Ashok Gurnani, Advocate.
For the Respondents: Mr. Mridul Jain, Advocate.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
CM APPL.32085/2020 (exemption), CM APPL.32086/2020
(exemption), CM APPL.32087/2020 (exemption)
Exemptions are allowed subject to all just exceptions.
CM(M) 619/2020 & CM APPL.32084/2020 (stay)
1. The hearing was conducted through video conferencing.
2. Petitioners impugn order dated 02.03.2020, whereby, two
applications of the petitioners under Order 41 Rule 27(1)(aa) Code of
Civil Procedure (CPC for short) have been dismissed.
Digitally Signed By:KUNAL
MAGGU
Signing Date:09.12.2020 22:50:42
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
3. Respondents had filed the subject suit for declaration and
injunction, inter alia seeking a declaration that the cancellation deed
executed by petitioner No.1 was null and void.
4. Said suit was decreed after trial by a judgment dated
23.01.2018. Petitioners have impugned the said judgment before the
Appellate Court.
5. During the pendency of the appeal, petitioners filed the subject
applications seeking to place on record additional documents.
6. The Appellate Court by the impugned order had considered
both the applications extensively and has individually noticed each of
the documents sought to be produced by the petitioners.
7. The Appellate Court has noticed that with the first application
dated 10.01.2019, petitioners had sought to place on record five
categories of additional documents mentioned as Annexures A to E.
8. With regard to the documents mentioned in Annexures - A and
B, the Appellate Court has noticed that the said document were
executed by the petitioner No.1 herself in March 2014 and no
explanation was rendered in the application as to why said documents
were not relied upon or produced during trial. Petitioner had also
failed to mention the source from which she had obtained the
documents and failed to rendered any further explanation as to how
Digitally Signed By:KUNAL
MAGGU
Signing Date:09.12.2020 22:50:42
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
she was not in possession of the documents, despite having executed
the same herself in the year 2014.
9. With regard to Annexure - C, the Appellate Court has noticed
that Annexure - C pertains to some other party and the purpose was to
prove that the Power of Attorney is irrevocable when stamp duty is
paid as per valuation of the property. The Appellate Court has held
that the said documents pertain to some third party and some other
transaction and was not relevant to the facts of the case.
10. With regard to Annexure - D, it was noticed by the Appellate
Court that by said document, petitioner sought to prove circle rate of
the suit property in the year 1996 and no cause was shown as to why
said document was neither relied upon nor produced during trial.
11. With regard to Anneuxre - E, once again the Court has noticed
that the said document was of a third party and also no explanation
was rendered as to why said document was not produced during trial.
12. With regard to the other application again under Order 41 Rule
27(1)(aa) CPC, the Trial Court has noticed that the petitioners wanted
to produce 8 sets of documents mentioned in annexures A to H, out of
which three I.e. F to H were case laws which the Appellate Court has
held could be produced at the time of arguments.
13. With regard to Annexures - D and E, the Appellate Court has
noticed that the said documents are sought to be produced to discredit
Digitally Signed By:KUNAL
MAGGU
Signing Date:09.12.2020 22:50:42
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
the witness Sh. Satpal Sharma, whose testimony was recorded on
20.02.2017. The Appellate Court has noticed that these documents
pertain to the year 2012, 2014 and 2015 and were very much available
to the petitioners at the time when the said witness was under cross-
examined and were not produced at the relevant time.
14. Furthermore, with regard to the documents stated in Annexures
- A, B and C, the Appellate Court had noticed that these documents
were also in possession of the petitioners and no circumstances have
been shown as to why said documents were not produced at the
relevant stage. Accordingly, the Appellate Court has rejected both the
applications.
15. Order 41 Rule 27 CPC reads as under:-
"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
Digitally Signed By:KUNAL
MAGGU
Signing Date:09.12.2020 22:50:42
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
(b) the Appellate Court requires any documents to be
produce or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause,
the Appellate Court may allowed such evidence or
document to be produced, or witness to be examined.
(2) Whenever additional evidence is allowed to be
produced, by an Appellate Court, the court shall record
the reason for its admission."
16. Order 41 Rule 27(1)(aa) CPC lays down that a party to an
appeal shall not be entitled to produce additional evidence unless 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 exercise of due diligence be
produced by him at the time when the decree appealed against was
passed.
17. No explanation has been rendered by the petitioners before the
Appellate Court or before this Court to show that the petitioners by
exercise of due diligence could not produce the said material at the
relevant time or said material was not within their knowledge.
18. On the contrary, the Appellate Court has noticed that all the
documents/evidence sought to be produced at the appellate stage were
predating the date of recording of evidence and were within the
knowledge of the petitioners.
Digitally Signed By:KUNAL
MAGGU
Signing Date:09.12.2020 22:50:42
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
19. As noticed by the Appellate Court, no explanation has been
rendered as to why said documents were neither produced nor relied
upon at the time of the trial in the suit. Clearly, the petitioners are
seeking to cover up the lacunas in their case, which is not the purport
of Order 41 Rule 27(1)(aa) CPC.
20. I find no infirmity in the view taken by the Appellate Court in
rejecting the applications under Order 41 Rule 27(1)(aa) CPC. No
circumstances to counter the findings returned by the Appellate Court
have even been shown before this Court.
21. I find no merit in the petition. Petition is, accordingly,
dismissed.
22. Copy of the judgment be uploaded on the High Court website
and be also forwarded to learned counsels through email.
DECEMBER 09, 2020 SANJEEV SACHDEVA, J
st
Digitally Signed By:KUNAL
MAGGU
Signing Date:09.12.2020 22:50:42
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
