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2009 DIGILAW 838 (PNJ)

Ashok Kumar v. Aman Kumar And Others

2009-04-30

A.N.JINDAL

body2009
Judgment A.N.Jindal, J. 1. During the pendency of the appeal before the learned Additional District Judge, Karnal, an application was filed by the appellants-plaintiffs under Order 41 Rule 27 CPC, for leading additional evidence in order to substantiate their claim regarding the nature of the property being ancestral one They had produced the mutation Ex.P-4, copy of the jamabandi Ex.P-4/A and shizra nisab Ex.P-8, which were attested by the Legal Keeper/Saddar Copying Agency, Kasur (Pakistan) and the Section Officer, Ministry of Foreign Affairs, Islamabad (Pakistan). The Civil Judge while holding that the said documents were not proved as per the provisions of Section 78 (6) of the Indian Evidence Act, refused to place reliance. The petitioner was in a mistaken belief that the said documents were duly certified and could be considered by the Court, but the same in violation of Section 78(6) of the Indian Evidence Act were not taken into consideration, therefore, now they have sought permission to produce these documents duly attested in accordance with the provisions of Section 78 (6) of the Indian Evidence Act by way of additional evidence. 2. The said application was duly contested. The Lower Appellate Court after hearing arguments on merits as well as on the application allowed the application for leading additional evidence subject to payment of Rs. 10,000/-. There is no denying a fact that the real and the main controversy between the parties is only qua nature of the property in dispute. In order to prove the ancestral nature of the property, the plaintiffs led evidence in the shape of mutation Ex.P-4, jamabandi Ex.P-4/A and Shizra Nisb Ex.P-8 which were brought from Pakistan and were duly attested by the Legal Keeper/ Sadar Copying Agency, Kasur (Pakistan) and Section Officer, Ministry of Foreign Affairs, Islamabad (Pakistan). There is also no dispute that these documents, as per provisions of Section 78 (6) of the Indian Evidence Act, were required to be certified by the Legal Keeper with a certificate under the seal of Notary Public or of Indian Council or Diplomatic Agent, certifying that copy was duly certified by the Officer having the legal custody of the original and upon proof of the character of the documents. The relevant sub-section 6 of Section 78 of the Indian Evidence Act is reproduced as under "(6) Public documents of any other class in foreign country, by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of "Notary Public, or of (an Indian Council)" or Diplomatic Agent, that the copy is duly certified by the officer having legal custody of the original, and upon proof of the character of the document according to the law of Foreign Country." 3. The aforesaid documents sought to be produced by way of additional evidence are public documents and copies thereof have been received from the legal custody and cannot be termed as procured or tampered one. In the aforesaid situation, I need to reproduce the relevant provisions regarding sanction of additional evidence at the appellate stage as enunciated under Order 41 Rule 27 CPC which 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." 4. A wide discretion has been conferred by the Code to refuse or to accept the additional evidence. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 4. A wide discretion has been conferred by the Code to refuse or to accept the additional evidence. I am fortified by my this view, from the judgment delivered by the Apex Court in the case of Mahavir Singh and others v. Naresh Chandra and another, 2001(1) R.C.R.(Civil) 454 : (2001) 1 Supreme Court Cases 309 wherein it was observed as under :- "Section 107 CPC enables an appellate court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order 41 Rule 27 CPC. The principle to be observed ordinarily is that the appellate court should not travel outside the record of the lower court and cannot take evidence on appeal. However, Section 107 (d) CPC is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are bound to exist. The court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right to the admission of such evidence and the matter is entirely in the discretion of the court, which is. of course, to be exercised judiciously and sparingly. 5 While further elaborating the section, the Apex Court in the aforesaid case elaborated the words "to enable it to pronounce judgment" as used in Order 41 Rule 27 (b) CPC the ability to pronounce ajudgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of the court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence, therefore, the old perception stating that no additional evidence could be accepted for filling up the lacuna has been removed by the Apex Court in Mahavir Singhs case (supra), rather it observed that words "or for any other substantial cause" must be read with words "requires", it means that the court could exercise its power of accepting the additional evidence when it requires for any substantial cause. 6. The instant case also appears to be that of exceptional hardship. 6. The instant case also appears to be that of exceptional hardship. The documents so attested by the authorities produced at the time of evidence were proved on the record with assumption which a man of common prudence could believe that the same could be taken into consideration, litigants are not supposed to know the technicalities of law with regard to attestation of the documents. However, the mistake came to light only when the trial court interpreted the provisions of Section 78 (6) of the Indian Evidence Act and declined the relief while refusing to accept the document being in violation of Section 78 of the Indian Evidence Act. These documents being the spine of the case and necessary to settle the nature, as such were required by the Lower Appellate Court certainly for pronouncing the judgment, therefore the Appellate Court appears to have judiciously exercised the discretion vested in it for allowing the additional evidence. The Lower Appellate Court has specifically held that the documents sought to be produced are required by the court to deai with the controversy in an effective and judicious manner and these documents will certainly help the court in adjudicating the controversy in just and fair manner, therefore, the order passed by the Lower Appellate Court cannot be said to be not covered by the provisions of Order 41 Rule 27 (b) CPC. Resultantly, finding no merit in the petition the same is dismissed. Parties are directed to appear before the trial court on 13.5.2009. that by reason thereof the rights and obligations of the parties are to be determined finally. The amount of compensation payable under the aforementioned provisions is not to be altered or varied in any other proceedings. It does not contain any provision providing for set off against a higher compensation unlike section 140. In terms of said provision, a distinct and.specified class of citizens, namely persons whose income per annum is Rs.40,000/- or less, is covered thereunder whereas Sections 140 and 166 cater to all sections of society." 4. It does not contain any provision providing for set off against a higher compensation unlike section 140. In terms of said provision, a distinct and.specified class of citizens, namely persons whose income per annum is Rs.40,000/- or less, is covered thereunder whereas Sections 140 and 166 cater to all sections of society." 4. Again, while relying upon its own decision in the aforesaid case and taking into consideration all other relevant law on the subject, the Apex Court in case United India Insurance Company Limited v. Kavita Chhabra and others, 2006 ACJ 1484 held as under :- "We, therefore, are of the opinion that Kodalas case, 2001 ACJ 827 (SC), has correctly been decided. However, we do not agree with the findings in Kodalas (supra), that if a person invokes provisions of Section 163-A, the annual income is Rs.40,000/- per annum shall be treated a cap. In our opinion, the proceedings under Section 163-A being a social security provision, providing for a distinction, only those whose annual income is upto Rs.40,000/- can take the benefit thereof. All the other claims are required to be determined in terms of Chapter-XII of the Act." 5. In view of the law discussed above, no iota of doubt remains in my mind that the claim petition filed by the appellant pleading the income of the deceased at more than Rs.40,000/- per annum, could not lie under Section 163-A of the Act. As such, the impugned judgment which is shorn of any illegality or irregularity, does not warrant interference by this Court. Appeal dismissed. Appeal dismissed.