M. K. Chawla, J. ( 1 ) THE present Letters Patent Appeal by the Union ofindia is directed against the Judgment dated 2. 11. 87 of the Learned Single Judge,quashing the order of dismissal from service of Major K. . K. Taneja, the respondent herein, by the General Court Martial and confirmed by the Competentauthority under the Army Act. ( 2 ) ALONG with this appeal, the appellants filed an application (CM158/81) u/s 5 of the Limitation Act, for condonation of delay of 19 daysin filing the appeal. The appllants also moved another (CM 157/88) underorder 41 Rule 27 read with Section 151 Civil Procedure Code for permission to placeon record the relevant Gazette notification/warrant by way of additionalevidence. ( 3 ) BEFORE dealing with this appeal and the applications, it is relevantto keep in mind a few salient features of the respondents, case as disclosed inhis petition (CWP 1253/78 ). The respondent herein was appointed as aregular commissioned officer in the Indian Army in December, 1965. Thereafterin the year 1967, he was promoted to the rank of Lieutenant and in April 1969to the rank of acting Captain. In the year 1974, the respondent was working asacting Major. While working in that capacity, he was charged for an offenceu/s 69 of the Army Act, 1950 (hereinafter REFERRED TO to as the Act) on the allegation that on 7/05/1976, at about 2300 hrs, he used criminal force on Mrsyasl Pal Kaur, with the intention to outrage her modesty in a military specialtrain, which was moving from Gwalior to Delhi. After completing the formalities of investigation, a charge sheet was framed against the respondent and ageneral Court Martial was convened to enquire into that charge. The respondentpleaded not guilty to the charge. The General Court Martial on evidence foundthe respondent guilty of the charge and announced the sentence subject to confirmation as follows :- " (A) to forefeit 5 years of service for the purpose of promotion;and (b) to be severely reprimanded. " ( 4 ) THIS order of sentence was sent to Major General Bhardwaj,general-Officer-Commanding, 19 Infantory Division for confirmation. The said officer by his order dated 17. 11. 76 directed the General Courtmartial to reassemble again for the purpose of reconsidering the sentenceawarded by it in the light of the observations made in the said order. " ( 4 ) THIS order of sentence was sent to Major General Bhardwaj,general-Officer-Commanding, 19 Infantory Division for confirmation. The said officer by his order dated 17. 11. 76 directed the General Courtmartial to reassemble again for the purpose of reconsidering the sentenceawarded by it in the light of the observations made in the said order. Incompliance of this direction, the General Court Martial reassembled on 18thnovember, 1976 and revised the sentence as under :- " (A) the court having attentively considered the observation of the confirming authority and the whole of the proceedings do now revoke the sentenceand now sentencing the accused IC-16741f,ex-Capt. Tanefa Kuldip Kumar. 21, Rajput attached 2nd Battalion, Jammu and Kashmir Rifles to be dismissedfrom service. " ( 5 ) THIS order of sentence was again sent to the Competent Authorityfor confirmation. The Chief of Army Staff confirmed in the sentence videorder dated 28. 1. 77. The respondent s petition under Section 164 of the Actwas considered and rejected by the Central Government on 27/04/1977. ( 6 ) THE respondent herein challenged the Court Martial proceedings onvarious grounds in his petition (CWP 1253/78) but during i he course of the hearing of his petition, great emphasis was laid on the ground that after the sentencewas passed by the Court Martial on 8. 3. 76, forefeiting 5 years service of the respondent herein for the purpose of promotion and a severe reprimand, the order ofsentence was sent for confirmation to Major General Bhardwaj, who was not thecompetent authority to either consider the revision petition or confirm thesentence passed by the General Court Martial. The subsequent revised sentencepassed by the General Court Martial on the basis of the observations made bymajor General Bhardwaj and its confirmation by the Competent Authoritywas thus illegal. In support of this submission, reliance was placed on para 471of the Regulations of the Army Act, 1962, which lays down the powers of theofficers who are competent to confirm the proceedings and the sentence passedby the General Court Martial. ( 7 ) ACCORDING to the respondent, his sentence could only have beenconfirmed either by the General Officer Commanding-in-Chief (hereinafterreferred TO to as GOC-in-Chiet ). Major General Bhardwaj who at the relevanttime was the General Officer Commanding 19 Infantory Division, was not theofficer of the rank of GOC-in-C and, therefore, could not have acted as theconfirming authority. . ( 7 ) ACCORDING to the respondent, his sentence could only have beenconfirmed either by the General Officer Commanding-in-Chief (hereinafterreferred TO to as GOC-in-Chiet ). Major General Bhardwaj who at the relevanttime was the General Officer Commanding 19 Infantory Division, was not theofficer of the rank of GOC-in-C and, therefore, could not have acted as theconfirming authority. . ( 8 ) WHILE dealing with this submission, the learned Single Judge notedthat even though it was submitted by the learned counsel for the Union ofindia that the Central Government had in fact issued a notification empoweringan officer of the rank of GOC-in-C 19 Infantory Division to perform the functions u/s 154 of the Act but he failed to produce any such notification in court. In view of these circumstances, the learned Judge concluded :- "thus, the sentence passed in the present case by the courtmartial on 8. 10. 1976 bad to be confirmed by GOC-in-C, Commandbefore it became valid. It is not disputed that Major General Bhardwajwho passed the revisional order dated 17. 11. 1976 and pursuant to whichthe court martial met again and revised the sentence, at the relevanttime was only a General Officer, Commanding 19 Infantory Division andnot a GOC-IN-C. A chart filed by the petitioner indicating the hierarchy of the officers indicates that a GOC Commanding a Division is tworanks below the GOC-IN-C. This chart is also not disputed by thelearned counsel for the respondents. It is, therefore, clear that the orderpassed by Major General Bhardwaj on 17. 11. 76 was without jurisdiction. Since the order dated 17. 11. 76 was passed by an officer not competentto do so, the subsequent revision of the sentence by the court martial inpursuance of the directions given by Major General Bhardwaj was alsoirregular and invalid. In my opinion, confirmation of the revisedsentence dated 28. 2. 1977 by the Chief of Army Staff or by a competentauthority to do so, the subsequent revision of the sentence by the courtmartial in pursuance of the directions given by Major Generalbhardwdj was also irregular and invalid. In my opinion, confirmationof the revised sentence dated 28. 2. 1977 by the Chief of Army Stafferby a competent authority to do so under Para 471 of the Regulationscannot validate the revised sentence. In my opinion, confirmationof the revised sentence dated 28. 2. 1977 by the Chief of Army Stafferby a competent authority to do so under Para 471 of the Regulationscannot validate the revised sentence. Therefore, since the wholeprocedure followed in the case after passing of the first sentence by thecourt matial was invalid and against the provisions of the Act, thispetition deserves to be allowed on that ground alone. " ( 9 ) THE writ petition was allowed and the Rule was made absolute. The proceedings and setence of the General Court Martial were set aside andthe petitioner was held entitled to all other consequential reliefs. It is againstthis order that the present LPA has been preferred TO. ( 10 ) BEFORE dealing with this appeal on merits, we propose to dispose ofthe two abovesaid applications filed alongwith the appeal. ( 11 ) IN the first application (C. M. 157/88) under order 41 rules 27seeking permission to lead additional evidence, the case of the appellant is thatduring the course of hearing of argument, it was submitted that the centralgovernment had in fact issued a warrant (A-3) for confirming the findings andsentences of general court martial under the Army Act, in favour of the officercommanding the 19 Infantory Division and to perform the functions u/s 154 ofthe Act, but the said warrant was not available on the court record. Thereafter, a vigorous search for the said warrant was made which could not betraced in spite of best efforts of the appellants. However, in the meantime, thelearned Single Judge allowed the civil writ petition on this ground alone. In theapplication, it is submitted that this very warrant has now been traced out bythe appellants in their records lying in the records of the Infantory Division atjammuand Kashmir, after a gieat deal of effort. As the entire case of therespondent has been allowed due to the non-production of the said warrant, theappellant be now allowed to lead evidence by placing the said warrant onrecord. ( 12 ) THE respondent has opposed the application by alleging that theappellant should have produced the said warrant at the time of the filing forthe counter-affidavit or in any event before the decision of the writ petition. Theyhave been negligent in not producing the said document and at this latestage, cannot be allowed to file the same in the appeal. The application meritsdismissal. Theyhave been negligent in not producing the said document and at this latestage, cannot be allowed to file the same in the appeal. The application meritsdismissal. ( 13 ) WE find substance in the submission of the learned counsel for therespondent. It is not disputed that in para no. 9 and 10 as well as in grounda and B of the petition (CWP 1253/78) filed on 30. 10. 78, the respondent hadspecifically raised the ground that by virtue of section 153 of the Army Act, readwith para 471 of the Army Orders of 1968, the findings and sentence awarded bythe General Court Martial against the respondent was required to be confirmedby the competent authority, which in his case was the Central Government or theconcerned GOC-in-C and the findings having been sent to Maj. General Bhardwaj, the General Officer Commanding, 19 Infantory Division for the purpose ofconsidering the sentence, was illegal. The appellant in their counter controverted the averments and submitted that the order dated 17. 11. 76 directing thegeneral Court Martial to re-assemble in open court for the purpose of reconsidering the sentence awarded by it was within jurisdiction, valid, legal and proper. Being the confirming authority, the said GOC was entitled u/s 160 (1) ofthe Act to direct the revision. ( 14 ) AT this stage, we may note that when the petition came up foradmission on 7. 12. 78, the Bench observed thus :- "the revisional order of 7. 11. 76 was passed by Major Generala. P. Bhardwaj recites that he is the confirming authority. Mr. Bhargave says that the revisional authority is not the General Officer Commanding but the GOC-in-C and in this connection, he refers to para471 of the Army Orders of 1968. Since there is no indication why nosubsequent amendment in the Army Orders, 1968 is there, and alsothere is no averment as to what is that precise difference between thegeneral Officer Commanding and the GOC-in-C. We would like to besatisfied on this point. Mr. Bhargava wants time to file an additionalaffidavit. Let him do so and the case be listed on 13. 12. 78. " ( 15 ) THE required affidavit was filed and after going through the same,a notice was issued to the respondents to show cause why Rule Nisi be notissued on 20. 12. 78. After the respondent filed their counter, the Rule wasissued on 21. 2. 79. Let him do so and the case be listed on 13. 12. 78. " ( 15 ) THE required affidavit was filed and after going through the same,a notice was issued to the respondents to show cause why Rule Nisi be notissued on 20. 12. 78. After the respondent filed their counter, the Rule wasissued on 21. 2. 79. ( 16 ) FROM the narration of fact REFERRED TO to above, it is evident that theappellants were fully made aware of the grounds on which the respondent sdimissal from service was being challenged. Not only was this ground incorpoated in the petition itself, but itw-is also highlighted at the time Rule Nisi wasissued to the appellant in the month of February, 1979. Before a party is allowedto adduce an additional oral or documentary evidence, he has to satisfy theprovisions of Rule 27 (l) (aa) of Order 41 of the Code. This provision reads asunder :- "the party seeking to produce additional evidence, establishes thatnotwithstanding the exercise of due diligence, such evidence was notwithin his knowledge or could not, after the exercise of due diligence,be produced by him at the time when the decree appealed against waspassed. " ( 17 ) IN this case, the appellant has failed to show due diligence in procuring this document. Rather their conduct borders on negligence. Formore than 12 years, the appellants for reasons best known to them didnot care to bring on record the notification/warrant (A-3) whichthey now propose to produce by way of evidence. Admittedly, this warrant hadbeen issued by the Secretary, Ministry of Defence on 4 653. It was nor at alldifficult for the appellants to have annexed this very document alongwilh theircourier as it was readily available either with Ministry of Defence or from theheadquarters of 19 Infantory Division located in the State of Jammu andkashmir. It could also have been produced before the start of the argumentsin the writ petition. This has not been done. ( 18 ) LEARNED counsel for the appellant in support of his submission, reliedupon a Judgment reported as K. Venkataramayia v. A. Sitarama Reddy, AIR1963 SC 1526. During the course of the Judgment, the court on this aspect,held as under :- "under R. 27. This has not been done. ( 18 ) LEARNED counsel for the appellant in support of his submission, reliedupon a Judgment reported as K. Venkataramayia v. A. Sitarama Reddy, AIR1963 SC 1526. During the course of the Judgment, the court on this aspect,held as under :- "under R. 27. (1), the appellant court has power to allow additional evidence not only if it requires such evidence "to enable it topronounce judgment" but also for "any other substantial cause whereeven though the court finds that it is able to pronounce judgment onthat state of record as it is, and so it cannot strictly say that it requiresadditional evidence to enable it to pronounce judgment, it still considersthat in the interest of justice something which remains obscure should befilled up so that it can pronounce its judgments in a more satisfactorymanner. Such a case will be one for allowing additional evidence for anyothers substantial cause under R. 27 (1) (b) of the Code. "reliance was also placed on the observations of this court in casereported as Union of India v. Angroop Thakur, 1968 (4) DLT 655, holding :- "held, that a document which purports to operate as a delegation of theexecutive functions of the Union to the Government of a State stands ona somewhat different footing from the evidence normally to be led by theparties in the form of private documents and the statements of witnesses. Where a respondent does not claim to lead any evidence in rebuttal nordoes he attempt to question the relevancy of the notification, the courtwould be defeating the cause of justice, if it declines to look at thenotification issued by the Government. " ( 19 ) IT is well settled that the court is not bound under the circumstancesmentioned in the Rule to allow additional evidence and the parties are notentitled as of right to the admission of such evidence. The matter is entirelyin the discretion of the court, but this discretion has to be exercised judicially. ( 20 ) AS observed earlier, in this case the attitude oft he appellant has allthrough been callous, and the court under the circumstances will be justified inrefusing permission to file documents by way of additional evidence. Thisprovision cannot be used to fill up lacunae in the case. Now that they have lostthe case on this ground, the appellant wants to produce the document. Thisprovision cannot be used to fill up lacunae in the case. Now that they have lostthe case on this ground, the appellant wants to produce the document. In caseroop Chand v. Gopi Chand Thalia 1989 SC 1416, the Division Bench refusedto accede to the request of the respondents for the filing of additional evidenceeven though it consisted of documents coming from the official custody. Whilerejecting this prayer, the court observed :- "on a consideration of the matter, we think the objections raised by theappellant s counsel for the filing of additional evidence by the respondentin the appeal proceedings before us merits acceptance. It is true that thedocuments sought to be filed by way of additional evidence are indisputably the audited balance sheets and reports submitted by the clubbut even so the fact remains that all the documents could have beenobtained and filed by the respondent before the Trial Court itself sincethe judgment had been rendered by the Trial Court only on 22. 2. 1977. Even if the respondent was not able to file the documents before thetrial Court, he could have filed the documents before the Appellatecourt, and sought its permission to file them as additional evidence. Even before the High Court there was no attempt in this behalf. Nosatisfactory explanation has been offered by the respondent for havingfailed to produce the documents before the Courts below or the Highcourt. In such circumstances, we see no justification to allow C. M. P. No. 906/79 and permit the respondent to file the documents inquestion as additional evidence in the proceedings. Accordingly, C. M. P. No. 906/79 is dismissed. " ( 21 ) THE above said judgments fairly and squarely apply to the facts ofthe present case As observed earlier, the respondeat was dismissed from serviceas far back as 18. 11. 76. By this time, he had almost reached the age superannuation. The appellants have all through been negligent in putting up their defenceby way of filing the material documents even though they were aware of the sameand were available with them. The Ministry of Defence or for that matter thestate of Jammu and Kashmir where 19 Infatory Division is located was not a placeinaccessible to them for summoning the record. In fact, they did not makeany effort in this behalf and were awakened only after the writ petition washeard and disposed of. The Ministry of Defence or for that matter thestate of Jammu and Kashmir where 19 Infatory Division is located was not a placeinaccessible to them for summoning the record. In fact, they did not makeany effort in this behalf and were awakened only after the writ petition washeard and disposed of. ( 22 ) IN this view of the matter, we have no hesitation in dismissing theapplication C. M. 157/88. CM. 158188 ( 23 ) ADMITTEDLY, there is 19 days delay in filing the present appeal. Thereason given in the application is that immediately on the receipt of the copy ofthe judgment, on 24. 1 1. 87. it was forwarded to the litigation sec. of the Ministryof Law on or about 27. 11. 87. The said copy was forwarded to the Ministryof Defence and it reached the Army Headquarters on 17. 12. 87. On scrutiny,the officers discovered that the whole order was based on the non-productionof warrant A-3, and thereafter efforts were made to trace out the said originalwarrant from the Army Hqrs. aswell as from the 19, Infentory Divisionlocated in the State of Jammu and Kashmir. On hearing that the originalwarrant has been found, that the appeal was filed on 11. 1. 88. It is further statedthat due to the non-availability of the warrant, the appeal could not be filed till11. 1. 88. ( 24 ) THE application is being opposed on the short ground that thereasons for not filing the appeal within time are quite contrary to the record. It is not mentioned in the application as to when the warrant wasdiscovered from the Jammu and Kashmir office or when it was receivedand by whom at Delhi. The reason for not filing the appeal due to nonavailability of the warrant till 11. 1. 88 is not based on the record. As a matter offact, this warrant was not available even on 1 1. 1. 88 when the appeal was filed. A copy of this warrant was only placed on record through application (CM157/88) on 21. 1. 88 when the affidavit in support of the said application wassworn in. If at all the appellants were aware of the existence of the warranta-3, there was no hitch in filing the appeal within limitation. ( 25 ) WE are of the opinion that the delay in filing the appeal has notbeen properly explained. 1. 88 when the affidavit in support of the said application wassworn in. If at all the appellants were aware of the existence of the warranta-3, there was no hitch in filing the appeal within limitation. ( 25 ) WE are of the opinion that the delay in filing the appeal has notbeen properly explained. The delay in filing the appeal could not be the causeof non-availability of the warrant. In fact, it had not been received when theappeal was filed. There was thus no reason or justification to delay the filingof the appeal. The explanation for the delay is obviously false, which disentitles the appellant to any indulgence. ( 26 ) IN the result, the appeal is dismissed as having been filed beyondlimitation. Even otherwise, after the dismissal of the appellants, application (C. M. 157/88) under Order 41 Rule 27. CPC, there remains no ground tointerfere with the Judgment of the learned Single Judge. On this score also thel. P. A merits dismissal and the same is hereby dismissed, leaving the parties tobear their own costs.