Research › Search › Judgment

Punjab High Court · body

2002 DIGILAW 542 (PNJ)

Darshana Devi v. State Bank of Bikaner and Jaipur

2002-05-15

M.M.KUMAR

body2002
JUDGMENT M.M. Kumar, J. - This revision petition filed under Section 115 of the Code of Civil Procedure (hereinafter referred to as the "Code") challenges order dated 22.2.2002 passed by the Additional District Judge, Bathinda allowing the application of the plaintiff-respondent filed under Order 41 Rule 27 of the Code for adducing additional evidence by examination of one Shri P.D. Regar. 2. Brief facts of the case which led to the filing of the present revision petition are that the plaintiff-respondent filed Civil Suit No. 244 dated 6.8.1996 for recovery against the defendant-petitioner. Issues were framed on 24.12.1996 and the case was posted for evidence of the plaintiff-respondent on various dates. According to the defendant-petitioner as many as 19 opportunities spreading over two years 9 months were given to the plaintiff- respondent and eventually the suit was dismissed vide judgment and decree dated 27.11.1999. On 3.1.2002 the plaintiff-respondent filed an appeal against the judgment and decree dated 27.11.1999. It was during the pendency of the appeal before the Additional District Judge that an application under Order 41 Rule 21 of the Code was filed claiming that the Civil Judge has committed illegality by closing evidence of the plaintiff-respondent vide order dated 3.8.1999. After contest, the application was allowed by the impugned order dated 22.4.2002 holding that the plaintiff-respondent had made efforts with due diligence to examine Shri R.D. Regar but he was transferred to Rajasthan Zone and for that reason could not be examined by the plaintiff-respondent. The Additional District Judge considered the examination of Shri P.D. Regar in interest of justice and imposed a cost of Rs. 2000/-. The plaintiff-respondent has been given two opportunities to conclude its evidence. Thereafter, one opportunity has been provided to the defendant-petitioner for rebuttal evidence. Feeling aggrieved by the impugned order dated 22.4,2002 defendant- petitioner has filed the present revision petition. 3. I have heard Shri Binderjit Singh, learned counsel for the defendant- petitioner who has argued that the Additional District Judge committed grave error in law by granting permission to adduce additional evidence inasmuch as none of the ingredients of Order 41 Rule 27 of the Code has been fulfilled. According to the learned counsel in one of the three eventualities, additional evidence could have been permitted to be adduced under Order 41 Rule 27 of the Code. According to the learned counsel in one of the three eventualities, additional evidence could have been permitted to be adduced under Order 41 Rule 27 of the Code. The three eventualities detailed in Sub Rule (1) of Rule 27 of Order 41 of the Code are as under : (a) that the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; (b) it is established by the party seeking permission to adduce additional evidence that despite exercise of due diligence such evidence could not be produced at the time when he was adducing evidence before the trial Court; (c) when the appellate court on its own requires any document to be produced or any witness to be examined or for any other substantial cause. 4. According to the learned counsel, the case of the plaintiff-respondent is not covered by either of the three eventualities contemplated by Sub Rule (1) of Rule 27 of Order 41 of the Code. Another argument raised by learned counsel is that in any case the evidence should have been permitted only at the time of hearing the appeal finally because it is at that stage only when the appellate court would know as to whether such evidence is required to be adduced or it is unnecessary. For this proposition the learned counsel has placed reliance on a judgment of the Supreme Court in the case of State of Rajasthan v. T. Sahani and others, 2001(1) PLJ 524. Learned counsel has also referred to the facts by arguing that 19 opportunities were given to the plaintiff-respondent and it cannot be said that by due diligence it could not have produced Shri P.D. Regar. Therefore, the learned counsel submitted that the Additional District Judge is not justified in granting permission to the plaintiff-respondent to adduce evidence, that too at the appellate stage. 5. I have thoughtfully considered the submissions made by learned counsel and have perused the record with his assistance. I am of the firm opinion that the Additional District Judge has not committed any irregularity nor any such illegality which would warrant interference of this court under section 115 of the Code. 5. I have thoughtfully considered the submissions made by learned counsel and have perused the record with his assistance. I am of the firm opinion that the Additional District Judge has not committed any irregularity nor any such illegality which would warrant interference of this court under section 115 of the Code. The first argument of the learned counsel that none of the grounds contemplated by sub-rule (1) of Rule 27 of Order 41 of the Code are attracted warranting permission to adduce additional evidence looks attractive at the first blush but lacks substance. The provision of Order 41 Rule 27(1) of the Code reads as under : 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. 6. A perusal of the above referred provision would show that if a party fails to adduce evidence despite due negligence at the stage when it ought to have been adduced, then it would be a good ground to grant permission under Rule (1) of Rule 27 of Order 41 of the Code as is patent from Sub Rule (aa) of Rule 27 of Order 41 of the Code. It has come on record that various opportunities were availed for procuring the presence of Shri P.D. Regar but he could not be produced for one reason or the other. Some of the reasons are noticed by the Additional District Judge in paras 5 and 6 of the impugned order. It has come on record that various opportunities were availed for procuring the presence of Shri P.D. Regar but he could not be produced for one reason or the other. Some of the reasons are noticed by the Additional District Judge in paras 5 and 6 of the impugned order. The principle reason for failure to examine Shri P.D. Regar was his transfer from Punjab to Rajasthan Zone and therefore, his presence could not be procured. It is the case that the plaintiff-respondent did not make an effort to examine Shri P.D. Regar or that Shri P.D. Regar is being called to fill up any lacuna in the evidence of the plaintiff-respondent by patching weak points or for making up omissions earlier made. Even otherwise, the first appellate court under section 96 of the Code is a final court with regard to recording of facts and the jurisdiction of the High Court in the second appeal is extremely limited and is confined only to substantive question of law. Therefore, it would be just and proper to adduce any remanent evidence. 7. The second argument of learned counsel that the question with regard to the adducing of additional evidence should have been decided at the time of deciding the appeal finally would not require a serious consideration because in cases where documentary evidence is to be led under Order 41 Rule 27 of the Code, it may be appropriate to follow the course of considering the application under Order 41 Rule 27 of the Code at the stage of hearing the appeal finally. These are the cases which are covered by the judgment of T.N. Sahanis case (supra) relied upon by the learned counsel. However, if the evidence sought to be adduced is oral evidence as are the facts in the present case, then no such principle could be laid down because it would be sheer wastage of time of the appellate court which can hardly be countenanced. The judgment of the Supreme Court in T.N. Sahanis case covers the case under Order 41 Rule 27(b) of the Code and the observations of the Supreme Court read as Linder : "4. The judgment of the Supreme Court in T.N. Sahanis case covers the case under Order 41 Rule 27(b) of the Code and the observations of the Supreme Court read as Linder : "4. It may be pointed out that Court, as long back as in 1963 in K. Venkataramiah v. Seetharama Reddy, AIR 1963 SC 1526, pointed out the scope of unmended provision of Order 41 Rule 27(c) that though there might well be cases where even though the Court found that it was able to pronounce the judgment on the state of record at it was, and so it could not require additional evidence tenable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. This is entirely for the Court to consider, at the time of hearing of the appeal on merits, whether the documents which are sought to be filed as additional evidence, need to be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the Court to look into the documents and for that purpose, amended provision of Order 41 Rule 27(b), CPC can be invoked. So the application under Order 41 Rule 27 should have decided alongwith the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner, it would have allowed the same if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view would be inappropriate." 8. In view of the above, I have no hesitation in rejecting the second submission of the learned counsel. 9. Another argument raised by the leaned counsel with regard to granting of 19 opportunities to the plaintiff-respondent for adducing its evidence but still failing to produce Shri P.D. Regar. As has been noticed in the paras above that with due diligence presence of Mr. Regar could not be procured because he was transferred to Rajasthan Zone. It is not that Shri P.D. Regar was never called or no effort was made for his production. As has been noticed in the paras above that with due diligence presence of Mr. Regar could not be procured because he was transferred to Rajasthan Zone. It is not that Shri P.D. Regar was never called or no effort was made for his production. So it is for that reason that the Additional District Judge has come to the conclusion that with due diligence Shri P.D. Regar could not be produced. Therefore, the last submission also lacks substance and is liable to be rejected. 10. In view of the above, the revision petition lacks merit and the same is dismissed. Petition dismissed.