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2009 DIGILAW 2075 (PNJ)

Suresh Chand Jain v. Mani Ram

2009-11-30

RANJIT SINGH

body2009
JUDGMENT Ranjit Singh, J.:- This revision is directed against an order passed by the Appellate Authority to allow the prayer of the respondent-tenant to lead additional evidence at the appellate stage. The petitioner had filed an ejectment petition on various grounds, like non-payment of rent, personal necessity and the respondent being a source of nuisance. Subsequently, an additional ground was taken to plead that the building is 90 years old and is in dilapidated condition. The eviction of the respondent was ordered on all four counts through a well reasoned judgment passed by the Rent Controller. At the appellate stage, the tenant had moved an application for leading additional evidence on the ground that he was not given proper opportunity to lead his evidence at the trial stage. By way of additional evidence, the respondent wanted to produce the statement of the petitioner recorded in another case titled Smt. Shanti Vs. Ram Chander and so also the copy of the house tax assessment register and the report of Engineer, who had inspected the building on 30.8.2006 after notice to the petitioner. In addition, the respondent also wanted to produce a copy of the judgment vide which the expert produced by the landlord, namely, Shri B.D. Singh was termed as a liar. The Appellate Authority had allowed this prayer of the respondent on the ground that the documents are essential for just decision of the case to arrive at a correct conclusion. This order accordingly is impugned by the petitioner before this court. 2. The leading of additional evidence at the appellate stage is regulated by Order 41 Rule 27 CPC. The parties to appeal are not entitled to produce additional evidence unless the stringent conditions contained in Order 41 Rule 27 CPC are satisfied. The additional evidence can be allowed if the court against whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. The additional evidence can also be allowed where party producing the same is able to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time when the decree appealed against was passed. The additional evidence can also be allowed where party producing the same is able to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time when the decree appealed against was passed. A discretion is also left with the Appellate Court and it can allow any document to be produced or any witness to be examined if it is of the view that the same is required to enable it to pronounce judgment, or for any other substantial cause. 3. The application was filed by the petitioner invoking Order 41 Rule 27 CPC by impliedly pleading that he could not produce this evidence despite due diligence and it is very necessary for deciding the controversy. The court has allowed the prayer on the ground that these documents would be essential for the just decision of the case. Thus, the court has allowed the additional evidence on the grounds which were not even pressed or pleaded. The Appellate Authority has simply allowed this prayer of the petitioner by observing that these documents are essential for the just decision of the case without specifying as to how in the absence of these documents, the court is not in a position to decide the case. The true test for admissibility of evidence is whether the Appellate Authority is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. There is no finding forthcoming to this effect. 4. It will be otherwise doubtful if an additional evidence can be permitted to impugn the testimony of a witness. Aim seems to be to produce evidence to impugn the testimony of an expert witness. Report of another expert is obtained on 30.8.2006 much after the decision of the Rent Controller, who decided the case on 30.1.2006. The respondent has woken up to lead evidence of an expert and should have done so at the trial stage. The respondent has not been able to show if he was unable to produce these documents or evidence despite due diligence or that this was not within his knowledge. There is no finding recorded in this regard, which may have helped the cause of the respondent. The respondent has not been able to show if he was unable to produce these documents or evidence despite due diligence or that this was not within his knowledge. There is no finding recorded in this regard, which may have helped the cause of the respondent. If Order 41 Rule 27 CPC is read, it clearly provides that the parties to an appeal shall not be entitled to produce additional evidence but can do so under limited circumstances as mentioned in the rule. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take evidence in appeal. The basic principle governing the admission of additional evidence is that the person seeking admission should be able to establish that with best efforts such additional evidence could not have been adduced at the first instance. Above all, he has also to show that the additional evidence was relevant for determining the issue. The evidence that is sought to be led by way of an additional evidence would not fit in any of the requirements of Order 41 Rule 27 CPC. The pleadings in another case may not be relevant and the present case is to be decided on the basis of pleadings and the evidence that is led in the present trial. A version given by a witness in another case can also not be termed as relevant evidence. Previous statement can generally be considered for the purpose of contradiction or corroboration and can hardly take the shape of substantive evidence. The Appellate Authority has apparently ignored all these aspects. I am, accordingly, of the view that the Appellate Authority was not justified in allowing the respondent to lead additional evidence and the impugned order, thus, cannot be sustained. The same is set aside. The Appellate Authority is now to decide the case on the basis of evidence already on record. The revision petition is accordingly disposed of. ------------