Uttarakhand High Court
AO/547/2015 on 31 March, 2022
Office Notes, reports,
SL. orders or proceedings or
Date COURT'S OR JUDGES'S ORDERS
No directions and Registrar's
order with Signatures
31.03.2022
AO No. 547 of 2015
With
MCC/12348/2022 (Review Application)
Hon'ble Sharad Kumar Sharma, J.
Mr. Zafar Siddiqui, Advocate, for the
review applicant/appellant.
Mr. N.S. Pundir, Advocate, for
respondent No. 1.
Mr. Tarun Pande, Advocate, for the
respondent(s).
The appellant had preferred this Appeal
from Order, questioning the Award dated 27th
July 2015, which was rendered by the learned
Motor Accident Claims Tribunal, in MACP
Case No. 312 of 2011, whereby, the claim
petition of respondent No. 4, was allowed and
an award of Rs. 6,24,000/- was awarded.
The Appeal from Order was preferred
by the appellant on 26th October 2015. Initially,
it was marked as defective and after curing the
defect, the Appeal from Order was heard at
admission stage and it was admitted on 29th
October 2015. LCR was summoned; notices
were issued to the respondents, and thereafter,
during its pendency, the appellant, on 24th July
2019, had filed an Application No. 9664 of
2019 along with an affidavit by invoking the
provisions contained under Order 41 Rule 27.
Ultimately, the Appeal from Order was
addressed by the appellant's counsel on its own
merits on 4th November 2019 and the
judgement was reserved and delivered on 17th
December 2019, whereby, the Appeal from
Order was dismissed.
It was thereafter that a Review Petition
has been preferred by the appellant only on 10th
March 2022, and the solitary ground, which has
been argued for pressing the review, is that the
Application under Order 41 Rule 27, was not
considered and that in itself would render the
judgement to be bad on the face of the records.
In order to answer the aforesaid
argument to sustain the Review, the provisions
of Order 41 Rule 27, itself has to be considered,
which is extracted 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
1[(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."
In fact, the implications of Order 41
Rule 27, is not as a matter of right, which can be
invoked by the appellant. The consideration of
the same would always depend upon the
parameters, and preconditions which are
required to be satisfied to bring an additional
document on record to be read in evidence.
In the instant case, after filing of the
Application under Order 41 Rule 27, on 24th
July 2019, thereafter, the matter was fixed on
6th August 2019, 7th August 2019, 26th August
2019, 2nd September 2019, 3rd September
2019, 17th September 2019, 25th September
2019 and 1st November 2019.
On all these previous dates, which have
been referred above, the learned counsel for the
appellant had appeared and sought adornments
and he never attempted to press his application
under Order 41 Rule 27, and particularly when
he ventured to address the Court on its merit on
14th November 2019, when the judgement was
reserved after hearing the learned counsel for
the appellant.
Even at the stage, when the arguments
were being carried at the final hearing stage, the
learned counsel for the appellant never
endeavoured to press his application under
Order 41 Rule 27, and hence it cannot be said
that the judgement suffers from an apparent
error on the face of the record due to non
consideration of an Application under Order 41
Rule 27, particularly, when the appellant
himself has not ever made any efforts to get an
order passed by the Court for taking additional
evidence on record, which could be required to
be considered at the time of final adjudication
of the Appeal from Order.
In view of the aforesaid, non recording
of the finding in the judgement dated 17th
December 2019, cannot be said to suffer from a
vices, to bring it within the ambit under Order
47 Rule 1, to make the judgement to be
reviewed on that premise.
Hence, this Court doesn't find any
merit in the Review Petition. Consequently, the
Review Application is dismissed.
(Sharad Kumar Sharma, J.)
31.03.2022
Mahinder/
