Research › Browse › Judgment

Himachal Pradesh High Court · body

1980 DIGILAW 69 (HP)

SURESH KUMAR v. SUNITA KUMARI

1980-09-10

H.S.THAKUR

body1980
JUDGMENT H. S. Thakur, J.—The appellant-petitioner has filed this application under section 151 read with Order 41, Rule 27 of the Code of Civil Procedure praying that he may be permitted to produce additional evidence in the case. It is stated in the application that due to his in advertance the respondent and the petitioned could not be medically examined and as such the medical evidence so vital for determining the point in controversy, is not adduced. It is also stated that in case the respondent and the petitioner are medically examined, it would be clear that the respondent was pregnant at the time of marriage and that the petitioner-appellant has not indulged/in sexual inter course until now. The application is supported!! by an affidavits In reply to the application,-the respondent inter alia, has stated that the appellant under the garb of-the present application cannot be (permitted to fill- in the gap and lacuna in-the case. It is further submitted that in case the applition is allowed, it .will amount to the abuse of the process of law and would cause great harassment to the respondent At the same time, it is contended that the application is not maintainable since no ground has been made: to invoke the provisions of order-41,-Erule 27 of the Code of Civil Procedure. It is also submitted that the application is- belated! The respondent has also ,repudiated the allegations of the petitioner-appellant on facts. It has been specifically pointed tout by the respondent that at ho point of time she had refused from being medically examined and that the lea of inadvertence as totally incorrect, dishonest and an after-thought and that in case the appellant genuinely desired to the respondent medically examined, he would have approached the trial court for the purpose. The allegations made in the application by the petitioner ace stated to be, malicious and scandalous, by the respondent. The reply filed by the respondent is also supported by an affidavit. 2. The appellant petitioner filed a petition under section 13 of the Hindu Marriage Act for dissolution of marriage by a decree of divorce and in the alternative for annulment of marriage under section 12 of the Act, during the month of July 1977." Evidence was produced by both the parties in support of their respective contentions. The learned District Judge, Kangra Division at Dharamsala dismissed the petition on 29th December, 1979. The learned District Judge, Kangra Division at Dharamsala dismissed the petition on 29th December, 1979. the petitioner appellant had riot field any duplication to have the parties medically examined, as is requested now. The question that arises for determination in this petition is whether; the (appellant-petitioner can invoke the provisions of order 41, Rule 27 of the Code of Civil Procedure. The appeal was filed in this Court by the end of February 1980 and along-with the appeal this application, was also filed. The provision contained in Order41, Rule 27 may be reproduced for ready reference. “27. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, iii 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 not with standing the exercise of due diligence, such evidence was not with in 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." It is conceded by the learned counsel for the petitioner that the case of the petitioner does not fall either under clause (a) or (aa) of sub-rule (1) of rule 27. It is, however, contended that the application can be allowed under clause (b) of sub-rule (1) of rule 27 (Order 41) on the ground of "or for any other substantial cause-. It is the general principle that an Appellate Court would not travel outside the record of the lower court and would not also be inclined to allow additional evidence. At the same time, no doubt, an Appellate Court has the discretion to allow the production of additional evidence but that discretion is circumscribed by the limitation specified in the rule reproduced above. At the same time, no doubt, an Appellate Court has the discretion to allow the production of additional evidence but that discretion is circumscribed by the limitation specified in the rule reproduced above. It is presumed that the words "for any other substantial cause" is to be read with the word "requires" in the beginning of the sentence, and it is only "whether for any other substantial cause the Appellate Court requires additional evidence". Additional evidence cannot be allowed to be produced solely for shaking the credit of a witness. At the same time, the provisions of the rule are not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and to fill up the omission in the court of appeals Similarly, the mere fact that certain evidence is important, is cot itself a sufficient ground for admitting that evidence in appeal. It appears that due to the observations made by the trial court that the petitioner did not take any step to get the respondent medically examined, he has filed this application. He has not given satisfactory reasons for the non-production of such an evidence in the trial Court. Bearing the aforesaid principles in mind, I am of the view that there is no legal ground to allow this application. It may be pointed out that a period of more than three years has elapsed since the respondent, according to the appellant, had delivered a dead child. If the parties are to be medically examined now, for the purpose stated by the appellant, it is not certain as to what would be the value of the opinion that may be expressed by the medical expert. At the same time, at the most, that would be an opinion. The appellant, besides others, has also examined certain eye-witnesses in support of his allegation. Of course, the entire evidence on record shall be appraised and considered by the appellate court, at the time of hearing the appeal, 3. For the foregoing reasons, the application is dismissed. The parties are, however, Left to bear their own costs. Application dismissed.