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2012 DIGILAW 819 (HP)

Shayam lal v. Vidya Sagar

2012-11-12

DEV DARSHAN SUD

body2012
Judgment Dev Darshan, J. The defendants/petitioners have challenged the order passed by the learned Additional District Judge, Ghumarwin dismissing the applications of the defendants under Order 41 Rule 27 of the Code of Civil Procedure for leading additional evidence as also under Order 14, Rule 5 of the Code of Civil Procedure (hereinafter referred to as the CPC) for framing additional issues. It has been pleaded that the defendants’ predecessor-in-interest had also filed counter claim with the written statement to which no written statement was filed by the plaintiffs. 2. The plaintiffs had challenged the revenue entries in the plaint claiming that the defendants were not tenants over the suit land. The case of the defendants was that the revenue record attached with the application establishes their claim. Judgment of the learned Sub Judge Bilaspur camp at Ghumarwin, in case No. 248/1 of 1995 decided on 30.1.1999 inter se between the parties to the suit also supported their claim. They could not produce all these documents for the reasons that they were simpleton villagers and they were not aware about the intricacies of the law etc. The learned Court dismissed the application primarily on the ground that the defendants seek to fill in lacuna which course of action is not available to the defendants. 3. I have heard the learned counsel appearing for the parties and have also gone through the documents filed on the record of the case. The principle governing the additional evidence in appeal is by now well established. It is well settled that no party can be allowed to fill in lacuna in appeal. What I find from the pleadings is that the usual rubric of illiteracy is being used by the defendants to urge that they could not produce the documents in the nature (a) revenue record and (b) judgment of the trial Court. 4. In Badi Ram versus M/s R.S. Company, AIR 2002 H.P. 150 . This Court while dealing with the provisions of Order 41, Rule 27, CPC holds: “14. 4. In Badi Ram versus M/s R.S. Company, AIR 2002 H.P. 150 . This Court while dealing with the provisions of Order 41, Rule 27, CPC holds: “14. Interpreting the words “any other substantial cause”, the learned Judges of the Supreme Court in K. Ventataramaiah v. A. Seetharama Reddy, AIR 1963 SC 1526 have held in paragraph 16 of the judgment (at page 1530): “…………… It is well to remember that the appellate Court has the power to allow additional evidence not only if it requires such evidence” to enable it to pronounce jujdgment” but also for “any other substantial cause”. There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence “ to enable it to pronounce judgment”, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence “for any other substantial cause” under R.27 (1)(b) of the code.” 18. We may refer to the judgment of Constitution Bench of the Supreme Court in the Municipal Corporation of Greater Bombay v. Lal Pancham, AIR 1965 Supreme Court 1998 which finds mentioned in the judgment in Mahavir Singh v. Naresh Chandra (supra). In paragraph 9 of the judgment, the learned judges have observed: “………………..No doubt, under Rule 27, the High Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way,. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence………” (Emphasis supplied) 19. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way,. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence………” (Emphasis supplied) 19. In view of the ratio of the above cited judgments of the Supreme Court, we have no hesitation to hold that even if the Court finds that it is able to pronounce the judgment on the basis of evidence on record, it may permit the additional evidence to fill in some inherent lacuna or apparent defect so that it may pronounce the judgment in a more satisfactory manner. Applying this ratio to the facts of the present case, the inherent lacuna or defect was that the plaintiff failed to place on record the certificate of its registration with the Registrar of Firms. It was specifically averred in the plaint that plaintiff is a registered firm known as M/s R.S. Company, Jeory, but this fact was not specifically denied in the written statement while preferring preliminary objection that the suit was not maintainable in the present form. It was not stated that the plaintiff firm was not a registered firm. Even the statement of Surender Pal, PW1, one of the partners of the plaintiff firm that it was registered, was not rebutted by adducing evidence by the defendant, despite several opportunities granted to him. The certified copy of the registration certificate filed along with application under Order 41, Rule 27, CPC prima facie shows that the firm was registered as far back as on 24.11.1960.” (pp.152-153). 4. I find that the case of the petitioners/defendants is squarely covered by the decision of this Court in the case supra. The documents to be proved on record are revenue record and judgment and not some evidence which is open to manipulation by the petitioners/defendants. The learned Court below lost the sight of this fact and was swayed by technicalities in rejecting the application. Need less to say that mere production of the documents does not prove the case of the party but it is subject to the important condition that the opposite side must be given equal opportunity to lead its evidence contrary to what the opposite side produces/proves on record. This petition is accordingly allowed. Need less to say that mere production of the documents does not prove the case of the party but it is subject to the important condition that the opposite side must be given equal opportunity to lead its evidence contrary to what the opposite side produces/proves on record. This petition is accordingly allowed. The application of the petitioners for leading additional evidence is allowed. The documents attached with the application are allowed to be proved on record by the petitioners in accordance with law. Opportunity shall also be granted to the respondents to lead evidence in rebuttal to w at the petitioners prove on record. No order as to the costs. 5. All pending applications also stand disposed of.