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2007 DIGILAW 256 (JK)

Sukh Dei v. Vidya Devi (Mst. )

2007-11-23

NIRMAL SINGH

body2007
1. This revision is directed against order dated 8.3.2003 passed by the Additional District Judge Reasi, whereby the application filed by the petitioners under Order 41 Rule 27 seeking to produce additional evidence has been rejected. Relevant facts for disposal of the present revision be noticed as under: 2. Respondents filed a suit for declaration on the ground that respondent No. 1 is legally wedded wile of deceased Kuti Ram and respondents No. 2 to 4 being born out of the wedlock between Kuti Ram and respondent No. 1 are the legal heirs of deceased Kuti Ram. It was pleaded that as petitioner No. 1 is not legally wedded wife of decease Kuti Ram and petitioners No: 2 to 5, Sandokhoo Ram, Om Parkash, Gian Singh and Mst Rano are not sons/daughter of deceased Kuti Ram, therefore, respondents are entitled to inherit the estate of deceased Kuti Ram. Respondents also sought decree for permanent injunction restraining the petitioners from interfering with the possession of the respondents over the suit land. 3. Petitioners contested the suit before the trial Court. After completion of the trial, the suit was decreed in favour of the respondents vide judgment and order dated 31.3.1994, passed by the Sub Judge (CJM) Udhampur. Against aforesaid order, the petitioners filed an appeal before the Additional District Judge, Reasi. When the appeal was listed for arguments, the petitioners moved an application under Order 41 Rule 27 of CPC seeking to produce photocopy of Electoral Roll for the year 1989 showing petitioners No: 2 to 5, Sandokhoo Ram, Om Parkash, Gian Singh and Mst Rano are sons/daughter of the deceased Kuti Ram and also photocopies of State Subjects and school certificates, showing the parentage of the petitioners No: 2 to 5 as Kuti Ram deceased. 4. Respondents contested the application filed by the petitioners under Order 41 Rule 27 of the CPC on the grounds that the documents annexed with said application were available with the petitioners but they did not prefer to produce the same before the trial court, therefore, the application filed by the petitioners under Order 41 Rule 27 of the CPC could not be entertained at this belated stage for accepting the same as additional evidence. 5. 5. Learned District Judge Reasi, after going through the record and hearing the learned counsel for the parties, dismissed the application filed by the petitioners under Order 41 Rule 27 of the CPC vide order dated 8.3.2003. It is this order which is impugned in the present revision. 6. Mr. L. K Sharma, learned counsel appearing for the petitioners submitted that the petitioners are illiterates and do not know the technicalities of the Law. They were not guided properly with regard to their defence by the counsel engaged by them before the court below. They had handed over documents concerned to their counsel, who was contesting the suit on their behalf but he failed to annex these documents with the appeal or suit. 7. Before considering the rival contention of the parties, it is apt to notice the relevant provisions of Order 41 Rule 27 of the CPC which reads as under: "27. Production of additional evidence in Appellate Court-(l) 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." 8. A perusal of the afore-stated provision shows that at the belated stage the party is not entitled to lead additional evidence as a matter of right. The party can produce the evidence if its case comes within the ambit of above said order. 9. A perusal of the afore-stated provision shows that at the belated stage the party is not entitled to lead additional evidence as a matter of right. The party can produce the evidence if its case comes within the ambit of above said order. 9. Order 41 Rule 27 of the CPC prescribes that a party who seeks to produce additional evidence must establish 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. 10. From the submission made by Mr. L. K. Sharma that the documents annexed with the application under Order 41 Rule 27 of the CPC were handed over to the learned counsel, who was contesting the suit in trial court on behalf of the petitioners but he could not tender the same for the reasons best known to him, it cannot be said that the additional evidence sought to be produced by the petitioners was not within their knowledge. 11. Learned counsel for the respondents submitted that the suit seeking declaration and permanent injunction was filed by the respondents on 2.1.1981 before the Court of Sub Judge (CJM) Udhampur. The suit came to be decided vide judgment and order dated 31.3.1994 in favour of the respondents and against the petitioners. Petitioners filed the appeal against the aforesaid judgment passed by the trial court but they did not tender any such documents in evidence before the trial court even though the suit remained pending for more than 13 years. He further submitted that even when the appeal was filed, the said documents were not annexed with the appeal and it is only when the case was matured for final hearing the petitioners moved the aforesaid application just to delay the disposal of the appeal. It is thus contended that the petitioners while tendering these documents, want to reopen the case by moving the aforesaid application. 12. I have considered the above submission of Mr. R. K. Sharma, learned counsel for the respondents and find force in it. The plea of Mr. It is thus contended that the petitioners while tendering these documents, want to reopen the case by moving the aforesaid application. 12. I have considered the above submission of Mr. R. K. Sharma, learned counsel for the respondents and find force in it. The plea of Mr. L. K. Sharma that documents were handed over to the counsel concerned, but he did not produce the same before the Court below and for the negligence of the counsel the petitioners are not to suffer, cannot be accepted because if these documents would have been handed over to the counsel concerned who was appearing on behalf of the petitioners in the trial court and if he could not tender these documents before the trial court then at the time of filing of the appeal, in the grounds of appeal this fact must have been mentioned and an application for additional evidence must have been filed along with the documents before the appellate court. Therefore, the plea put forth by Mr. L. K. Sharma that the documents concerned could not be tendered before the trial court due to lack of proper legal advise, cannot constitute; a substantial cause as has been held by the Apex Court in the case of Haryana State Industrial Development Corporation Vs M/S Cork Manufacturing Company (2007 AIR SCW 6084). What has been observed by the Apex Court in para 17 of the judgment is being reproduced below: "Order 41, Rule 27 of the CPC does not empower an appellate Court to accept additional evidence on the ground that such evidence could not be produced or filed either before the trial Court or before the first appellate Court due to inadvertence or lack of proper legal advice. Neither can it be said that lack of proper legal advice or inadvertence to produce the legal notice in evidence is a ground to hold that there was substantial cause for acceptance of the additional evidence. Similarly, non-realization of the importance of the documents due to inadvertence or lack of proper legal advice also would not bring the case within the expression " Other substantial cause" in Order 41 Rule 27 of the CPC." 13. Similarly, non-realization of the importance of the documents due to inadvertence or lack of proper legal advice also would not bring the case within the expression " Other substantial cause" in Order 41 Rule 27 of the CPC." 13. In case reported as Nath Singh V. The Financial Commissioner, Taxation, Punjab (AIR 1976 SC 1053), the Apex Court has held that discretion given to the appellate court to receive and admit additional evidence under Order 41 Rule 27 of the CPC is not an arbitrary one but is a judicial one circumscribed by the limitations specified in that provision. It has been further held that if the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. The true test to be applied in dealing with applications for additional evidence is whether the appellate court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced. Relevant observation made by the Apex Court in the aforementioned case is reproduced herein below: "We also do not find any other substantial reason to accede to the request of the appellants to allow them to adduce additional evidence. There is no inherent lacuna or obscurity which we require to be filled up or removed to be able to pronounce judgment. The application of the appellants is accordingly rejected." 14. Again, in case reported as State of Gujarat & Anr Vs Mahendra Kumar Parshottam Bhai Desai (AIR 2006 SC 1864), the Apex Court has held that under Order 41 Rule 27 CPC, 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 did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for purposes of pronouncement of judgment in a particular way. 15. In State of U.P Vs. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for purposes of pronouncement of judgment in a particular way. 15. In State of U.P Vs. Manbodhan Lal Srivastava (AIR 1957 SC 912), the Apex Court has held that it is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps. Of course, the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the parties. 16. In view of the above, I am of the opinion that the petitioners have failed to bring their case within the ambit of provision of Order 41 Rule 27 of CPC. The learned District Judge Reasi, therefore, has not committed any legal or jurisdictional error in dismissing the application filed by the petitioners under Order 41 Rule 27 of the CPC for production of additional evidence. 17. For the reasons indicated above, there is no merit in this revision petition which is accordingly dismissed.