July vs Moti Mahal Deluxe A Partnership Firm
2025 Latest Caselaw 862 UK

Uttarakhand High Court

July vs Moti Mahal Deluxe A Partnership Firm on 11 July, 2025

Author: Manoj Kumar Tiwari

Bench: Manoj Kumar Tiwari

                                                       2025:UHC:6009
HIGH COURT OF UTTARAKHAND AT NAINITAL
         Writ Petition Misc. Single No. 716 of 2025
                          11 July, 2025


Hena Hasan Desai                                  ... Petitioner
                               Versus

Moti Mahal Deluxe A Partnership Firm              ... Respondent

----------------------------------------------------------------------
Presence:-
Ms. Aastha Mehta & Mr. Pramod Bailwal, learned counsel for the
petitioner
----------------------------------------------------------------------
(Hon'ble Manoj Kumar Tiwari, J.)

                           JUDGMENT

1. By this petition filed under Article 227 of the Constitution, petitioner has challenged order dated 15.07.2023 passed by 4th Additional District Judge, Dehrdun in SCC Revision No. 1 of 2022. By the said order, application filed by petitioner, for taking additional evidence on record in a revision filed under Section 25 of the Provincial Small Cause Courts Act, 1887, was rejected.

2. It transpires that petitioner's mother filed an eviction suit against the respondent as Mutwalli by contending that the suit property belongs to a Wakf. During pendency of the suit, petitioner's mother passed away on 12.05.2021 and petitioner was substituted as plaintiff in the suit. The suit was dismissed by learned Judge, Small Cause Court, Dehradun vide judgment dated 02.04.2022, inter alia on the ground that an unregistered Wakf cannot maintain a suit in view of Section 87 of The Wakf Act, 1995.

2025:UHC:6009

3. Petitioner filed a revision under Section 25 of the Provincial Small Cause Courts Act, 1887 challenging the judgment rendered by learned trial court, which is pending. Before the revisonal court, petitioner moved an application under Section 151 CPC for taking certified copy of Wakf Register on record to show that Wakf in question is a registered Wakf. Learned revisional court rejected the said application vide order dated 15.07.2023. Thus, feeling aggrieved, petitioner has approached this Court.

4. Heard learned counsel for the petitioner and perused the record.

5. Order 41 Rule 27 CPC is extracted below for ready reference:-

"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."

2025:UHC:6009

6. Perusal of Order 41 Rule 27 CPC reveals that it enables appellate court to take additional evidence in exceptional circumstances. The general principle is that appellate court should not travel beyond the record of the trial court and cannot consider any evidence, which was not placed before the trial court. Hon'ble Supreme Court has held that the appellate court may permit additional evidence only and only if the conditions laid down in Order 41 Rule 27 CPC are found to exist. The parties are not entitled, as of right, to the admission of such evidence. The said provision does not apply, when on the basis of evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. Hon'ble Supreme Court in the case of Union of India vs Ibrahim Uddin & another, reported in (2012) 8 SCC 148, has held as under:-

"37. The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. [(1978) 2 SCC 493 : AIR 1978 SC 798] )

38. Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. (Vide Lala Pancham [AIR 1965 SC 1008] .)

2025:UHC:6009

39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava [AIR 1957 SC 912] and S. Rajagopal v. C.M. Armugam [AIR 1969 SC 101] .)

40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.

41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment.

42. Whenever the appellate court admits additional evidence it should record its reasons for doing so (sub-rule (2)). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the court of further appeal to see, if the discretion under this Rule has been properly exercised by the court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the Rule."

7. In the case of Mahavir Singh & others vs Naresh Chandra & another, reported in AIR 2001 SC 134, Hon'ble Court has held as under:-

"5. Before we proceed further we would like to refer to the scope of an application under Order 41 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 41 Rule 27 CPC. The 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

2025:UHC:6009 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 41 Rule 27 CPC was examined by the Privy Council in Kessowji Issur v. Great Indian Peninsula Rly. Co. [ILR (1907) 31 Bom 381 : 9 Bom LR 671 : (1906-07) 34 IA 115 (followed in AIR 1931 PC 143)] in which it was laid down 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 41 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 scientific equipment concerned 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 the judgment, or for any other substantial cause. The expression "to enable it to pronounce judgment" has been the subject of several decisions including Syed Abdul Khader v. Rami Reddy [(1979) 2 SCC 601 : AIR 1979 SC 553] 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 the court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence (see: Municipal Corpn. of Greater Bombay v. Lala Pancham [AIR 1965 SC 1008 :

(1965) 1 SCR 542] ). But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. The words "or for any other substantial cause"

must be read with the word "requires", which is set out at

2025:UHC:6009 the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply as noticed by the Privy Council in Kessowji Issur v. G.I.P. Rly. [ILR (1907) 31 Bom 381 : 9 Bom LR 671 : (1906-07) 34 IA 115 (followed in AIR 1931 PC 143)] It is under these circumstances such a power could be exercised. Therefore, when the first appellate court did not find the necessity to allow the application, we fail to understand as to how the High Court could, in exercise of its power under Section 115 CPC, have interfered with such an order, particularly when the whole appeal is not before the Court. It is only in the circumstances when the appellate court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order 41 Rule 27 CPC, the whole appeal was before it and if the first appellate court is satisfied that additional evidence was not required, we fail to understand as to how the High Court could interfere with such an order under Section 115 CPC. In this regard, we may notice the decision of this Court in Gurdev Singh v. Mehnga Ram [(1997) 6 SCC 507] in which the scope of exercise of power under Section 115 CPC on an order passed in an application filed under Order 41 Rule 27 CPC was considered. When this decision was cited before the High Court, the same was brushed aside by stating that the principle stated therein is not applicable to the facts of this case. We do not think so. The High Court ought not to have interfered with such an order."

8. Learned revisional court has passed a detailed order and the reasons assigned for rejecting petitioner's application cannot be faulted. Revisional court has relied upon a judgment rendered in the case of Kailash Chandra Jain vs Jagdish Chandra Nagpal & another, reported in 1998 (2) AWC 847, in which it was held that additional evidence subsequently discovered by a party cannot be admitted in a revision to demonstrate that the finding given by learned Judge, Small Cause Court was erroneous. Learned revisonal court also held that the scope of power in a revision filed under Section 25 of the Provincial Small Cause Courts Act, is not as wide as in a first appeal and findings on pure questions of fact are normally not

2025:UHC:6009 interfered with by the revisional court. It was further held that since the factum of registration of Wakf cannot be said to be not within knowledge of the plaintiff and there is no explanation given, as to why the registration certificate was not placed before the trial court, therefore, the registration certificate cannot be taken on record at the revisional stage.

9. This Court does not find any reason to interfere with the rejection order passed by learned revisonal court. The suit was filed in 2010. Section 87 of the Wakf Act, 1995, as it stood on the date of filing of suit, is extracted below:-

"87. Bar to the enforcement of right on behalf of unregistered wakfs (1) Notwithstanding anything contained in any other law for the time being in force, no suit, appeal or other legal proceeding for the enforcement of any right on behalf of any wakf which has not been registered in accordance with the provisions of this Act, shall be instituted or commenced or heard, tried or decided by any Court after the commencement of this Act, or where any such suit, appeal or other legal proceeding had been instituted or commenced before such commencement, no such suit, appeal or other legal proceeding shall be continued, heard, tried or decided by any Court after such commencement unless such wakf has been registered, in accordance with the provisions of this Act.

(2) The provisions of sub-section (1) shall apply as far as may be, to the claim for set-off or any other claim made on behalf of any wakf which has not been registered in accordance with the provisions of this Act."

10. Although, Section 87 of the Wakf Act was deleted from the Statute Book w.e.f. 01.11.2013, by Wakf (Amendment) Act, 2013, however, that amendment will not have retrospective application, but the same will apply prospectively. The suit, filed by petitioner, was dismissed inter alia on the ground that Wakf in question was not registered. Petitioner is trying to cure the defect, which was one of the reasons for

2025:UHC:6009 dismissal of the suit. The case of the petitioner does not fall under the contingencies mentioned in Order 41 Rule 27 CPC.

11. Hon'ble Supreme Court in the case of Union of India vs Ibrahim Uddin & another, reported in (2012) 8 SCC 148, held that "in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal"

12. In view of the legal position as discussed above, any interference with the impugned order would be unwarranted.

13. Accordingly, the writ petition fails and is dismissed.

(Manoj Kumar Tiwari, J.)

11.07.2025 Aswal NITI RAJ SINGH

DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF

2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802a3a08b08d1369

ASWAL 512ea30f3, postalCode=263001, st=UTTARAKHAND, serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C22DACF4F4610C1 FE58A58531726FBB0, cn=NITI RAJ SINGH ASWAL Date: 2025.07.16 07:13:24 -07'00'