Partap Singh vs State Of Hp And Others
2023 Latest Caselaw 18117 HP

IN THE HIGH COURT OF HIMACHAL PRADESH

.

AT SHIMLA

CMP No.9541 of 2018

In RFA No.58 of 2018 Reserved on: 13.10.2023

Partap Singh r to Pronounced on: 20.11.2023

......Applicant

Versus State of HP and others ...Respondents

_____________________________________________________ Coram:

Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.

Hon'ble Ms. Justice Ajay Mohan Goel, Judge.

Whether approved for reporting?

For the applicant : Mr. Amar Vivek Aggarwal, Mr. Kulwant Singh Katoch, Mr. Mehta Raghuvindra Singh and Mr. Sai Anukaran, Advocates, for the applicant/appellant/petitioner. For the respondents : Mr. Anup Rattan, Advocate General with Mr. Rakesh Dhaulta Mr. Pranay Pratap Singh, Additional Advocate Generals, Mr.

Arsh Rattan and Mr. Sidharth Jalta, Deputy Advocate General, for the respondents- State. Mr. Sudhir Thakur, Sr. Advocate with

.

Mr. Karun Negi and Mr. Somesh Sharma,

Advocates, for respondents No. 4 to 10 in RFA No. 58 of 2018.

Mr. R.L. Sood, Senior Advocate with Mr. Arjun Lall and Ms. Sanjeevani Sood, Advocates, for respondent no. 10 in RFA

no. 58 of 2018 and for respondents no. 3, 5 to 7 and 9 in CWP No. 1359 of 2018 and for respondents no. 1 to 6 and 8 in RFA r no. 9 of 2019.

Mr. Rakesh Thakur, Advocate, for respondent no. 4 in CWP no. 1359 of 2018.

M.S. Ramachandra Rao, Chief Justice.

This application is filed under Order 41 Rule 27 C.P.C. by P.S. to

receive the following documents as additional evidence:

Sr. No. Particulars

1. Photo copy of Legal notice dt.26.11.1990 issued by Smt.Ram Dei through her GPA to State of HP and others with regard to Solan Rajgarh Road.

2. Certified Copy of regd. Will dt.27.2.1993 executed by Late Ram Dei.

3. copy of Mutation No.257 dt.30-10-1995 attested after the death of Ram Dei in Revenue records

obtained under the RTI Act,2005.

4. Copy of Legal Notice dt.5.9.2005 issued by Sh. KS

.

and others to the State of HP and others qua the

Solan-Rajgrah Road under RTI Act,2005.

5. Certified copy of Judgment and decree passed in

Civil Suit No.14-S/1 of 2006 qua Solan-Rajgrah Road.

6. Certified copy of evidence given by affidavit by KS given in Civil Suit No.14-S/1C of 2006 qua Solan-Rajgrah Road

7. Certified copy of evidence given by affidavit of Executive Engineer, HP PWD, Solan given in the Suit No.14-S/1C of 2006 qua Solan-Rajgrah Road.

8. Certified copy of evidence given by affidavit of Assistant Engineer, HP PWD, Solan given in the

Suit No.14-S/1C of 2006 qua Solan-Rajgrah Road

9. Copy of Notification dt.26.8.2009 issued by State of HP for acquiring land for Solan Rajgarh Road

obtained under RTI Act,2005.

10. Award No.15/2010 dt.5-10-2010 passed by Land Acquisition Collector, Solan for acquiring land for Solan Rajgarh Road obtained under RTI Act,2005.

11. True copy of order dt.20.7.2016 in RFA No.160 of 2015 passed by the High Court of HP w.r.t Solan

Rajgarh Road.

12. copy of notification dt.7-2-2010 issued under

.

Section 4(1) of the LA Act,1894 obtained under the

RTI Act,2005.

13. Copy of Application cum objection dt.10-4-2013

filed by Sh.KS before the Land Acquisition Collector, Shimla Solan before passing Award with

prayer to release a share in the amount of compensation relying on clause 8 in the Will dt.11.2.1993 obtained under the RTI Act,2005.

14. Order No.KH-KA-/94/13-850 dt.11-4-2013 passed by Ld. A C 1st Grade Solan behind the back of petitioner after 19 years from attestation of

Mutation for the subject land obtained under the RTI Act, 2005.

15. Copy of Rapat No.682 dt.22-4-2013 entered in the

revenue records by the Halqua Patwari behind the back of petitioner obtained under the RTI

Act,2005.

16. Certified Copy of Award No.3/2013 dt.17-8-2013 passed by the Land Acquisition Collector qua the Solan -Rajgarh Road and exhibited as PW-1/B in Land reference No.11 ADJ-II/4 of 2014.

17. Certified Copy of list of share holders prepared by the Land Acquisition Collector, Solan initially

obtained from the court of the Additional District Judge, Solan.

.

18. Copy of intimation dt.17-8-2013 of share given to

each co-sharers as per Para No.55 of the Award No.3/2013 issued by the Land Acquisition

Collector, Solan under section 12(2) of the Land Acquisition Act,1894 obtained under the RTI

Act,2005.

19. Copy of Power of Attorney of KS Mehta obtained from the court of the Additional District Judge,

Solan.

20. Certified Copy of Land Reference No.11ADJ-II/4 of 2014 filed against Award No.3/2013 dt.23-9-

2013 obtained from the court of the Additional District Judge, Solan.

21. Certified Copy of Applications filed for releasing

the amount of compensation awarded in Award No.15/2010 before the High Court in RFA No.160

of 2015.

22. Copy of Application dated 14.09.2016 given to Ld.

District Collector Solan by petitioner after knowledge of fraud committed with him with prayer to delete the Rapat No.682 obtained under the RTI Act,2005.

23. Copy of Objection dated 14.09.2016 given to Ld.

L.A.C. Shimla at Solan by petitioner obtained under the RTI Act,2005.

.

24. Copy of Enquiry Report dated 03.04.2016

submitted by Ld. S.D.C. Solan to Ld. District Collector Solan H.P., whereby held that Clause

No.8 of the Will is not applicable on Solan Rajgarh Bye-Pass Road obtained under the RTI

Act,2005.

25. Certified copy of Order dated 20.12.2016 passed by Ld. J.M.I.C. Solan on application under Section

156 (3) Cr.P.C. filed by petitioner.

26. True Copy of F.I.R. No.293 dated 22.12.2016.

27. Certified Copy of order dated 05.09.2017 passed

on Application under Order 1 Rule 10 C.P.C. read with Section 30 of Land Acquisition Act passed by

Hon'ble ADJ-II, Solan, H.P., vide No.85ADJ-II/6

of 2016.

28. Certified Copy of order dated 18.11.2017 passed

on Application under Order 1 Rule 10(2) C.P.C. & under Section 30 of the L.A. Act by Hon'ble ADJ- II Solan, District Solan, vide No.54ADJ-II/6 of 2017.

29. Certified Copy of judgment and decree in Reference petition No.11ADJ-II/4 of 2014 dated 28.12.2017 passed by Hon'ble ADJ-II Solan

against Solan-Rajgarh Bye-Pass Road along with zimni orders.

.

30. Certified Copy of Order dated 14.03.2018 passed

in RFA No.58 of 2018 filed against Award dated 28.12.2017 by petitioner.

31. Certified Copy of Order dated 16.03.2018 passed on Revision Petition i.e. CMPMO No.549 of 2017

by Hon'ble High Court of H.P.

32. Certified Copy of Order passed on Application under Sections 45 & 73 of the Evidence Act filed

by petitioner before Hon'ble ADJ-II Solan for examine the signature of petitioner through expert filed in land Reference No.11 ADJ-II/4 of 2014.

Certified Copy of order dated 14.07.2017 passed by the Ld. District Collector, Solan, on the inquiry

33. Report submitted by Ld. S.D.C. Solan obtained

under RTI Act,2005.

Copy of order dated 28.10.2017 informed to

petitioner by the ld. S.D.C. Solan through letter

34. No.SDM/SLN/(Reader)/2017-392dt. 28.10.2017 obtained under RTI Act,2005.

35. Copy of order dated 09.04.2018 passed on application under Sec. 5 of the Limitation Act by Ld. Sub Divisional Collector, Solan, H.P. obtained

under RTI Act,2005.

Caveat Petition dated 23.04.2018 filed by

.

petitioner against order dated 09.04.2018 passed on

36. Section 5 of the Limitation Act by ld. S.D.C. Solan before the ld. Divisional Commissioner.

37. Certified copy of the order dated 23.04.2018 of the Ld. Divisional Commissioner, Shimla without

considering the Caveat Petition filed by petitioner obtained under RTI Act,2005.

38. Certified copy of the order dated 11.05.2018 of

Ld. Financial Commissioner, Shimla, staying the proceedings passed by Ld. Divisional Commissioner, Shimla, and calling for the records

obtained under RTI Act,2005.

39. Certified Copy of order dated 11.05.2018 passed

by ld. JMIC, Solan, on Cancellation Report.

40. Certified Copy of list of share of shareholder allegedly forged by the officials of the ld. LAC

Solan obtained under RTI Act,2005 from office of the Land Acquisition collector.

41. Certified Copy of requisition dt.22.8.2013 filed by counsel for obtaining the certified copies of Award No.3/2013 before the Copying Agency obtained under RTI Act,2005.

42. Certified Copy of receipt of compensation amount released on 25.06.2014 by the ld. LAC Shimla at

.

Solan obtained under RTI Act,2005.

43. Certified Copy of amended Reference No.N.T.L.O.

No.751-54 dated 22.12.2017 under section 18 and

30 of the LA Act obtained under RTI Act,2005.

44. Copy of information required under Section 19 of

LA Act in respect of Award No.3/2013 filed by ld. LAC Shimla at Solan alongwith amended reference No.N.T.L.O. No.751-54 dated 22.12.2017 before

Hon'ble Court.

45. Certified copy of Application under Section 151 C.P.C. titled as Smt. Neerja & Others versus State

of H.P. & Others filed before ld. Trial Court with prayer to consolidate the land Reference

No.11ADJ-II/4 of 2014 with amended land

reference forwarded to Hon'ble District Judge vide Notice No.N.T.L.O. No.751-54 dated

22/28.12.2017 (No.3ADJ-II/6 of 2018).

46. Certified Copy of Order dated 20.07.2018 passed on C.M.A. No.4ADJ-II/6 of 2018.

2) The applicant/appellant Pratap Singh ( for short "PS")

contends that all these documents have been obtained under the

Right to Information Act, 2005, during the pendency of the

Land Reference no.11-ADJ-II/IV of 2014, when it was pending

.

before the Additional District Judge-II, Solan, H.P.

3) The applicant PS contended that he was an illiterate person,

that he trusted his elder brother KS ( for short "KS")

( respondent no.10 in the RFA), that the latter cheated him

that he came to know that KS r to taking advantage of the trust reposed in him by the applicant;

knowingly, deliberately,

fraudulently and with malafide intention, by manipulating the

men and facts, succeeded in cheating the applicant in a

collusive and fraudulent manner; and that these documents are

referred to by him to protect his rights.

4) According to the applicant, KS was watching the acquisition

proceedings not only on behalf of his six daughters but also on

behalf of the applicant PS, who is his real brother; and at that

time, the applicant had no knowledge about the fraud

committed by KS, who being the elder educated member of

the family, was taking care of the land acquisition proceedings.

5) According to applicant, in July, 2016, KS had directed him to

sign an affidavit in the office of the counsel for releasing

.

compensation amount, upon which, he visited the office of the

counsel and signed the affidavit and then enquired from the

counsel about his share in the amount of compensation, upon

which, the counsel had disclosed about the Will executed by

the applicant.

r to Smt. Ram Dei in 1993, and this created a doubt in the mind of

6) He then applied for documents under the RTI Act and realized

the fraud played on him on 13.09.2016.

7) According to him, he had no knowledge about the Will of

Smt. Ram Dei or knowledge about the fraud played on him

before that date.

8) He contended that he changed his counsel and initiated legal

actions against the same with a motive to protect his rights.

9) It is the allegation of the applicant that KS had obtained his

signature on a Power of Attorney; thereafter filed the

application for Reference by forging his signature behind his

back in a collusive and fraudulent manner; and wrongly and

illegally impleaded himself behind his back as one of the

parties to the Reference without any right, title or interest in

.

the land or the compensation to do so.

10) The applicant contended that these documents would help

this Court to decide the point of controversy involved in the

appeal in accordance with law and establish to the

11) to satisfaction of the Court the fraud played by KS on him.

He alleged that he could not produce these documents in the

Reference Court as he trusted KS and believed that he was

watching his interest also, till he realized that fraud was

played by KS on him.

Reply to the application by KS

12) Reply was filed by KS to this application opposing the

request of the applicant to receive these documents as

additional evidence and denying the allegation that he played

any fraud or that he acted in any collusive and fraudulent

manner, as is alleged.

13) He admitted that some of these documents are a matter of

record.

.

14) It was denied that the applicant is an illiterate person and

was not pursuing the case in the Court of Law, as is alleged,

and it is asserted that the applicant also had knowledge about

the pendency of proceedings and also knowledge about the

15) to share in the compensation awarded in Award no.3 of 2013.

It is stated that the Reference petition was filed with the

signature of the applicant and the Will in question is not a

disputed document between applicant and himself.

16) It was denied that prior knowledge of the Will was not there

with applicant.

17) It was denied that KS had no right, title or interest in the

amount of compensation awarded in Award no.3 of 2013 and

reliance is placed on para-55 of the award attached with the

said award.

18) It is contended that the documents sought to be adduced as

additional evidence are neither relevant nor applicable to the

nature of the controversy in the appeal.

19) It is sought to be justified that under the Will dt. 11.02.1993

.

of Smt. Ram Dei, KS is also entitled to an equal share

alongwith his six daughters and applicant in view of Clause-

8 of the Will.

20) According to KS, Solan-Rajgarh Road is also Solan-

Rajgarh Bye-Pass Road.

Consideration by the Court

21) Order 41 Rule 27 C.P.C., states 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.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for

its admission."

22) In Arjan Singh v. Kartar Singh1, the Supreme Court held

that the true test for allowing an application seeking to

adduce additional evidence is "whether the appellate court

was able to pronounce judgment on the materials before it

without taking into consideration the additional evidence

sought to be adduced".

23) In North Eastern Railway Admn. v. Bhagwan Das2, this

was further clarified and explained by the Supreme Court in

the following terms:

AIR 1951 SC 193

(2008) 8 SCC 511, at page 516

"15. ... ... There may well be cases where even though the court finds that it is able to pronounce judgment on

.

the state of the record as it is, and so, it cannot strictly

say that it requires additional evidence "to enable it to pronounce judgment", it still considers that in the inter-

est of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether

looking into the documents, sought to be filed as addi- tional evidence, would be necessary to pronounce judg-

ment in a more satisfactory manner, has to be considered

by the Court at the time of hearing of the appeal on mer- its."

(emphasis supplied)

Thus even if the Court finds that it is able to pronounce

judgment on the material adduced as evidence in the trial court,

still, if it is of the view that such additional evidence adduced in

appeal would enable it to pronounce the judgment in a "more

satisfactory manner", it can allow the application for additional

evidence and consider it.

24) Thus the ability to pronounce a judgment is to be understood as

the ability to pronounce a judgment satisfactory to the mind of the

.

Court delivering the judgment.

25) In Malayalam Plantations Ltd. v. State of Kerala 3, the Supreme

Court explained that at the time of hearing the appeal , the appel-

late Court should consider the petition under Or.41 Rule 27 CPC

so as to find out whether the documents or evidence sought o be

adduced have any relevance or bearing on the issues involved.

26) This provision was again considered by the Supreme Court in

Union of India v. K.V. Lakshman4 and it held that court has to do

substantial justice between the parties, and merely because it allows

the said application filed under Or.41 Rule 27 CPC , it does not

mean that it has decided the entire case in favor of the party which

has filed such an application.

27) Keeping the above principles in mind, we shall consider the in-

stant application filed by the applicant/appellant.

(2010) 13 SCC 487

(2016) 13 SCC 124

28) After hearing submissions of both the parties on merits and after

perusing the evidence adduced in the trial court apart from the

.

documents sought to be filed as additional evidence, we are of

the opinion that such additional evidence filed with this applica-

tion is required to be admitted in order to enable this Court to

pronounce judgment satisfactorily as it would assist the Court in

29) to knowing the truth and in arriving at a just and proper conclusion.

This is because the evidence already adduced in the Reference

Court/trial court, in our opinion, does not give the full picture or

throw light on the crucial aspect of fraud allegedly committed by

KS on the applicant.

30) We are also of the opinion that the documents are relevant to

decide the real issue in controversy and interest of justice

requires that these documents be received as additional evidence

in exercise of the power conferred on this Court under Order 41

Rule 27 C.P.C., so that their effect can also be considered.

31) The counsel for the respondents did not seek any opportunity to

lead any rebuttal evidence.

32) Admittedly, serious allegations have been made in RFA No.58 of

2018 by applicant/appellant of acts of tampering of Award No.3

.

of 2013 of the Land Acquisition Collector on the basis of a

Rapat, which was obtained behind the back of the applicant, for

the benefit of KS ( respondent no.10 in the application/appeal)

to enable him to get a share in the compensation for the subject

land which was acquired by the State even though KS is

allegedly not entitled to the said share as per the Will of Smt.

Ram Dei. According to the applicant KS was able to achieve this

clandestinely by taking advantage of the trust reposed in him by

applicant as an elder member of the family.

33) Acts of fraud are mostly perpetrated in secrecy and unveiling it

undoubtedly requires considerable time and effort on part of the

applicant after realizing that one has become a victim of fraud.

34) We see no reason to disbelieve the plea of the applicant that

these documents sought to be filed as additional evidence would

help in unearthing the acts of fraud allegedly committed by KS

to the serious prejudice of the applicant.

35) Merely because applicant did not adduce any evidence initially

in the Court of the Additional District Judge, Solan the applicant

.

cannot be denied the opportunity to produce this material as

additional evidence because there is no such condition

stipulated in Order 41 Rule 27 C.P.C., as held by the Supreme

Court in Jaipur Development Authority vs. Kailashwati Devi5.

In the said decision, the Supreme Court held that no

distinction was intended by Clause (aa) of Rule 27 of Order 41

C.P.C. between a party who has produced some evidence in the

trial Court and one who has adduced no evidence in the trial

Court.

It held that all that is required is that conditions mentioned

in the body of the sub-Rule, must be proved to exist.

It held that it is not permissible to restrict Clause (aa) of

Rule 27 of Order 41 for the benefit of only those who have

adduced some evidence in the trial Court.

(1997) 7 SCC 297

36) The allowing of this application and taking into account this

additional evidence, would enable this Court to pronounce

.

judgment in a more satisfactory manner and understand the

background of the events. It would also come within the four

corners of the term "other substantial cause" used in Order 41

Rule 27(b)CPC.

37)

We find that these documents would be necessary to pronounce

the judgment in this appeal in a more satisfactory manner.

38) We do not find any substance in the contentions of KS

( respondent no.10) who opposed this application.

39) Therefore, this application is allowed and the said documents are

marked as AE1 to AE46.

                                         (M.S. Ramachandra Rao)
                                                Chief Justice





                                              (Ajay Mohan Goel)
 November 20, 2023                                 Judge
      (Yashwant)