Vishal Kaushik vs Manoj Kumar Sikhola And Others
2022 Latest Caselaw 2258 UK

     HIGH COURT OF UTTARAKHAND AT NAINITAL

                      Civil Revision No. 33 of 2015

Vishal Kaushik                                           .....Revisionist.

                                       Versus
Manoj Kumar Sikhola and others                           .... Respondents
Present :
Mr. Siddhartha Singh, Advocate, for the revisionist.
Mr. Nikhil Singhal, Advocate, for the respondents.


                                        ORDER

Hon'ble Sharad Kumar Sharma, J.

The present defendant/revisionist, to the proceedings of SCC Case No. 6 of 2012, Manoj Kumar and others Vs. Vishal Kaushik, in a Revision, which has been preferred under Section 25 of the Provincial Small Causes Courts Act, instituted before this Court on 7th April, 2015, has questioned the impugned judgement dated 12th March, 2015, had filed the SCC Revision, along with the Misc. Application No. 3717 of 2015, invoking the provisions contained under Order 41 Rule 27 of the CPC.

2. By virtue of the aforesaid application, filed under Order 41 Rule 27 of the CPC, the applicant/revisionist, to the said application, in fact, has added new facts altogether, that the disputed property, which is a room, lying in Durga Bhavan Nirman Samiti, was taken by him on rent in 2001, and despite of due diligence, which has been pleaded in para 4 of the application, the above fact with regard to the prior sale deeds of 2nd February, 1977, showing the disputed

property as to be more than 60 years' old and the sale deed of 16th August, 2004, recording the name of Smt. Keshav Devi a its owner and other documents, which has been referred thereto, i.e. the assessment of 1988, were alleged to be not within their knowledge, and hence, the same could be brought on record, particularly the assessment relating to the years 1971, 1979, 1988 and 2001 onwards.

3. The said application preferred by defendant/revisionist, under Order 41 Rule 27 of the CPC, has been vehemently opposed by the respondents/plaintiff's Counsel, by filing an objection on 02.09.2015, contenting thereof, that the application under Order 41 Rule 27 of the CPC, filed by the revisionist along with the revision on 07.04.2015, do not fall for consideration within the ambit of the parameters laid down under Order 41 Rule 27 of the CPC, because all the documents, which has been referred thereto, were the documents in relation to which, in fact, it is admitted by the revisionist, that his right itself, in relation to the disputed tenanted property, in question, was created in 2001, and pertaining to the other sale deeds and assessment orders of the period prior to the institution of the SCC Suit in 2012, would be treated to be very well be attributed to be in the knowledge of the present SCC revisionist, and hence, they cannot be taken into consideration in the present Revision by invoking Order 41 Rule 27 of the CPC.

4. Having heard the learned counsel for the parties and particularly in relation to the respective augments in support of the application filed under Order 41 Rule 27 of the

CPC, it becomes relevant for this Court to extract the provisions contained under Order 41 Rule 27 of the CPC, which is quoted hereunder :

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.

5. The basic legislative intend of Order 41 Rule 27 was to create an absolute restriction, as it starts with the non obstinate Clause, restraining the parties to the proceedings to adduce additional evidence, at an appellate stage (herein revisional stage) except for the exceptions which had been carved out under Clause (a) and (aa) as introduced by the Act No. 104 of 1976 and Clause (b).

6. In case, if Clause (aa) is taken into consideration, it provides that the parties seeking to produce additional evidence, it is preceded by the word, 'comma' and then uses the language establishes that notwithstanding exercise of the due diligence.

7. Hence, merely reference of due diligence in para 4, of the application will not satisfy the subsequent ingredient of satisfaction of the ingredients required under Sub-rule (aa) of Sub-rule 1 of Rule 27 of Order 41. The aspect of due diligence has always to be corresponding with an act of diligence, also as contemplated therein. There is no such pleading or material on record as to what act the revisionist pleads, that which incapacitated him to place the said pre- existing document on record when the suit was proceeding.

8. Thus, this Court is of the view, that the revisionist's application under Order 41 Rule 27 of the CPC will not fall into for consideration under any exception clause of Sub-clause (aa) of Sub-rule 1 of Rule 27 of Order 41 of the CPC.

9. The second exception, which has been sought to be attracted by the learned counsel for the revisionist, which contemplates "the appellate Court requires". This has been interpreted by the learned counsel for the revisionist, that as if the use of the language of the appellate Court requires, hereby does not debar the parties to the proceedings to file an application under Order 41 Rule 27 of the CPC, and it will be

open for either of the parties to the proceeding to file an application to bring an additional evidence on record.

10. This Court is not in agreement with the argument extended by the learned counsel for the revisionist, qua the implications of Clause (b) of Sub-rule (1) of Rule 27 of Order 41 of the CPC, because in its literal sense, when the legislature has used the word 'requires', requires would here denote a personal need of the Court, for assessing a document for enabling to pronounce a judgement effectively.

11. This requirement has to be expressed to be made available by the Court, and that too for the reasons when the Court finds, itself to be slightly cornered in rendering an effective judgement, in the absence of there being relevant documents, being considered by the Court while rendering the judgement. The use of the word 'appellate court requires' will not herein, carved out an exception for an applicant or any applicant to the application under Order 41 Rule 27 of the CPC, to enable him to file an application on that pretext, that once the legislature has used the word 'appellate Court requires', it will include the parties to the proceeding also to enable them to file an application under Order 41 Rule 27 of the CPC.

12. Hence, this plea of the learned counsel for the revisionist, is not accepted by this Court, coupled with the fact, that the documents, which has been sought to be placed on record, apart from the fact, that they are registered deed of conveyance and the respective assessment orders, which fall

to be a document in public, it may not be ruled out when the revisionist himself, has claimed his right to have devolved upon him in 2001, he was oblivion to the documents, which is being now sought to be placed on record by way of Order 41 Rule 27 of the CPC, and as per the opinion of this Court, the document, which has been sought to be produced before this Court, in an eventuality, first of all, it would not be falling under Order 41 Rule 27 of the CPC, and secondly, it may have an adverse effect now as of holding the proceeding de novo on the basis of the false pretext of lack of knowledge of the document, which was well in existence prior to the institution of the Suit.

13. Hence the objection filed by the respondents to the application under Order 41 Rule 27 of the CPC, is accepted. The application under Order 41 Rule 27 of the CPC, filed by the revisionist is hereby rejected and declined to be taken on record.

14. List this SCC Revision as prayed for by the revisionist's Counsel in the week commencing 22nd August, 2022.

15. Interim order, if any, would remain extended till the next date of listing.

(Sharad Kumar Sharma, J.) 25.07.2022 Shiv