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2005 DIGILAW 305 (HP)

HIMANSHU v. BISHAN DUTT

2005-08-23

A.K.GOEL, V.K.GUPTA

body2005
JUDGEMENT V.K. Gupta, C. J.: This Revision petition is directed against the order dated 1st April, 2004 passed by the learned District Judge, Solan, in CM.A. No. 96 of 2004. Vide the impugned order, the learned District Judge while allowing the application filed by respondent No.1 herein Bishan Dutt, permitted him to lead additional evidence before the lower Court in terms of clause (a), sub-rule (1), rule 27 of Order 47 (sic-41 )C.P.C. 2.This case was being heard by a single Bench of this Court in normal course on 9th August, 2005 and it was in the course of the hearing of this petition by a single Bench that a point of law was canvassed by Mr. G.D. Verma, learned Senior Advocate appearing for the petitioner that while exercising jurisdiction under Order 41 Rule 27 C.P.C. with respect to the prayer of a party for leading additional evidence, it was not open to the appellate Court to consider the application/prayer for leading additional evidence at any stage of the appeal prior to the stage of final hearing of the appeal. In other words, the contention raised by Mr. G.D. Verma was that it was not open to an appellate Court while exercising jurisdiction under Order 41 Rule 27 C.P.C. to consider the application/prayer for leading additional evidence at the initial stage of the appeal or even at an intermediate stage because Order 41 Rule 27 C.P.C, according to Mr. G.D. Verma, enjoined a duty and case an obligation upon the appeal Court to take up the prayer for leading additional evidence only at the stage of the final hearing of the appeal. According to him, since in the present case, the learned Court below took up the prayer for leading additional evidence at an intermediary stage of the appeal, admittedly, when the appeal was not taken up for final hearing, there was an error of exercise of jurisdiction and on that ground, the impugned order was bad in law. Noting the aforesaid contention of Mr. G.D. Verma, the single Bench of this Court while hearing the petition on 9th August, 2005 was of the view that the point of law being important and having an implication of far reaching importance, it would be desirable to have the matter referred to a Division Bench for a more authoritative pronouncement on the subject. G.D. Verma, the single Bench of this Court while hearing the petition on 9th August, 2005 was of the view that the point of law being important and having an implication of far reaching importance, it would be desirable to have the matter referred to a Division Bench for a more authoritative pronouncement on the subject. It is in this background that this petition was heard by a Division Bench of this Court. 3. Rule 27 Rule of Order 41 C.P.C. reads thus: "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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 4. A careful reading of Rule 27 in its entirety clearly suggests that three distinct situations are contemplated under this Rule, each of which caters to different contingencies relating to the production of additional evidence in the course of pending appeal. Whereas clause (a) stipulates a situation where the trial court from whose decree the appeal is preferred and is pending in the appeal Court has refused to admit evidence which ought to have been admitted; clause (aa) suggests of a situation where the party seeking to produce additional evidence in the appeal Court establishes that notwithstanding exercise of due diligence by him such evidence was not within his knowledge or could not, after exercise of the diligence be produced by him in the trial before the passing of the decree by the trial Court. In total contra-distinction to clause (a) and clause (aa), clause (b) suggests of a situation where rather than a party acting under clause (a) or clause (aa), the appeal Court takes upon itself the task and requirement of considering if any document is to be produced or any witness is to be examined, by way of additional evidence, with a view to enable it to pronounce judgment, or for any other substantial cause. 5.In State of Rajasthan Vs. T.N. Sahani, 2001 (10) SCC 619 their Lordship of the Supreme Court while considering the issue relating to the requirement of taking additional evidence in a pending appeal observed thus: "It may be pointed out that this Court as long back as in 1963 in K.Venkataramiah v. Seetharama Reddy AIR 1963 SC 1526 pointed out the scope of unamended 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 the record as it was, and so, additional evidence could not be required to enable 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 looking into need be looked into a 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 been decided along with 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. Further the reasons given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly set aside. The application is restored to its file. But taking a view on the application before hearing of the appeal, in our view, would be inappropriate. Further the reasons given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly set aside. The application is restored to its file. The High Court will now consider the appeal and the application and decide the matter afresh in accordance with law." 6.In Parsotim Thakur and others vs. Lal Mohar Thakur and others AIR 1931 PC 143, the Privy Council while dealing with the issue of the stage at which additional evidence could be led in a pending appeal clearly drew a distinction between clause (a) and clause (b) when it observed as under "Turning to the provisions of R.27 Cl.(1)(a), has no application in the present case, Under Cl.(1)(b) it is only where the appellate Court requires it, (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this declaration is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when an examining the evidence as it stands some inherent lacuna or defect becomes apparent.1" 7. In Arjan Singh Vs. Kartar Singh & Ore AIR 1951 SC 193 on a similar issue of the stage at which additional evidence has to be led in a pending appeal before the appeal Court, the following observations were made which being apposite are reproduced herein-below: "In the present case, there is nothing to show that there was any lacuna or gap which had to be filled up & that the appellate Ct. felt the need for the omission being supplied so that it would pronounce a judgment; to put it the other way round, it does not appear, & it was not stated, that the Dist. J felt himself unable to come to a decision without copies of the settlement registers that were sought to be put in force him for the first time. J felt himself unable to come to a decision without copies of the settlement registers that were sought to be put in force him for the first time. On the other hand, the Dist J. made up his mind to admit the certified copies of the Kami beshi & Muntakhib asami-war registers even before he heard the appeal. The order allowing the applt. to call the additional evidence is dated 17.3.1942. The appeal was heard on 24.4.1942. There was thus no examination of the evidence on the record & a decision reached that the evidence as it stood disclosed a lacuna which the Ct. required to be filled up for pronouncing its judgment. In the circumstances, the learned Judges of the H.C. were right in holding that the Dist. J. was not justified in admitting this evidence under O.41.R27." 8. Undoubtedly, in Arjan Singh Vs. Kartar Singh & Ors (supra), their Lordships of the Supreme Court were seized of a situation where the appeal Court was exercising jurisdiction under clause (b). The fact that the appeal Court in that case was exercising jurisdiction under clause (b) is clearly borne out from the following observations in the judgment with respect to the order passed by the appeal Court. We quote:- "These two entries taken together if found genuine, would enable the Ct. to arrive at a just conclusion. It is, therefore, in the interest of justice that the additional evidence should be let in. I have taken action under O.41.R.27(1)(b), Civil PC. This additional evidence would supply material to remove the defect pointed out in the judgment of the Ct. below, why two of the sons of Sejha Singh came to own equal shares of land of Pattar Kalan in the presence of their 3rd brother." 9. The judgments in cases of State of Rajasthan Vs. T.N. Sahani, Arjan Singh Vs. Kartar Singh & Ors and Parsotim Thakur and others Vs. Lai Mohar Thakur and others made it abundantly clear that all these cases related to the exercise of jurisdiction by the appeal Court under clause (b) and none of these cases related to the exercise of jurisdiction by the appeal Court under clause (a) or under clause (aa). Kartar Singh & Ors and Parsotim Thakur and others Vs. Lai Mohar Thakur and others made it abundantly clear that all these cases related to the exercise of jurisdiction by the appeal Court under clause (b) and none of these cases related to the exercise of jurisdiction by the appeal Court under clause (a) or under clause (aa). Undoubtedly, a bare reading of the three clauses in Rule 27 of Order 41 clearly suggests to us that in so far as clause (a) and clause (aa) are concerned, the initiative has to come from the party seeking to lead additional evidence either because the party feels that despite efforts by it the trial Court had refused to admit the evidence which ought to have been admitted (refer to clause (a), or despite exercise of due diligence, the evidence not being in the knowledge of the party in the trial Court, it could not produce the same during the trial in so far as the situations retable to clauses (a) and (aa) are concerned, in our considered opinion application for production of additional evidence can be filed by the party at any stage of the appeal, even before the stage of final hearing of the appeal. In coming to this view, we have in our minds cogent reasons. The main reason is that the party knows that either with respect to the situation under clause (a) or with respect to a situation under clause (aa), the trial Court erred in not allowing the additional evidence and unless the additional evidence is produced the partys case cannot be properly put across. There is no reason for such a party to wait for the final hearing of the appeal because that would be a sheer wastage of time and the party would be well advised in such a situation to file an application for leading the additional evidence at the initial, rather earliest stage of the appeal itself. There can also be situations where the party understands its case very well and finds that unless the additional evidence is brought on the record the appeal cannot be effectively adjudicated upon. There can also be situations where the party understands its case very well and finds that unless the additional evidence is brought on the record the appeal cannot be effectively adjudicated upon. There can be numerous other reasons by a party would genuinely feel convicted about the imperative need of leading additional evidence at the very initial stage of the appeal because the party would be genuinely convinced that unless additional evidence was produced, the appeal by itself, based on the record of the trial Court would be imperfect or incomplete causing prejudice to the interests of the party. 10. In contradistinction to clauses (a) and (aa), a far as clause (b) is concerned, its ambit and scope is quite distinct because the expression "to enable it to pronounce the judgment" occurring in clause (b) clearly suggests that only when the appellate Court has started hearing of the appeal and in the course of the hearing of the appeal feels that it requires any additional document to be produced or any additional witness to be examined, it may call for additional evidence. Their might be actually situations and cases where even though the appeal Court finds that it would be able to pronounce the judgment on the basis of the record of the trial Court as it was, it might still consider that in the interests of justice something which remained obscure should be filled up so that it can pronounce the judgment in a more requirement is always to enable the Court to pronounce the judgment for any substantial cause. In either case the requirement has to be of the Court. This is the plain meaning and clear interpretation of clause (b) and based on such interpretation, in our considered view, the legitimate occasion for the exercise of this jurisdiction is not any stage prior to the hearing of the appeal but the stage of the final hearing of the appeal when on examining the evidence as it stands some inherent lacuna or defect became apparent to the Appeal Court. There might of situations where the Appeal Court in the process of examining the evidence while hearing the appeal finds that some omission needs to be supplied and in such a situation it can ask for additional evidence to supply such an omission with a view to enabling it to pronounce the judgment. 11. There might of situations where the Appeal Court in the process of examining the evidence while hearing the appeal finds that some omission needs to be supplied and in such a situation it can ask for additional evidence to supply such an omission with a view to enabling it to pronounce the judgment. 11. We have, therefore, no about whatsoever in our minds that it is only under clause (b) that the additional evidence can be produced at the stage of final hearing of the appeal but in so far as the situations occurring or arising under clause (a) or (aa) are concerned, a party can apply/pray to the Appeal Court for permission to lead additional evidence at any stage of proceeding in the appeal, not necessarily at the final of hearing of the appeal. 12. In the case before us, a bare reading of the impugned order clearly suggests that the prayer for additional evidence in this case was made in terms of clause (a) because it was the contention of the appellant before tie Appeal Court that the appellants prayer for leading additional evidence in the trial Court was rejected. This case is squarely covered by clause (a) and, therefore, the learned Appeal Court was justified in considering and allowing the prayer at a stage prior to the final hearing of the appeal. No interference in the impugned order is called for or warranted.13. The petition is dismissed but with no orders as to costs.