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2012 DIGILAW 912 (MAD)

Petitioner v. Respondent

2012-02-21

ELIPE DHARMA RAO, M.VENUGOPAL

body2012
Judgment : M. VENUGOPAL, J. 1. The Petitioner/Appellant has filed M.P.Nos.1 and 2 of 2011 to receive the Certificate of Marriage of S.Kanagasabai and V.Vasanthakumari dated 06.10.1960 and the certified copy of Petition in O.P.No.534 of 2002 on the file of Family Court, Chennai as additional evidence and to mark the same. 2. According to the Learned Counsel for the Petitioner/Appellant/ Wife, the Respondent/Husband has filed a petition for Divorce in O.P.No.1835 of 2002 on the file of Principal Family Court, Chennai and later, the same has been transferred to Learned II Additional Family Court Judge, Chennai due to administrative reasons. The said O.P.NO.1835 of 2002 has been hotly contested by the parties and P.Ws.1 and 2 have been examined. 3. It is the stand of the Petitioner/Appellant that P.W.3 has not gone into the witness box and therefore, he has not been examined before the Court. But, in the Fair Order of O.P.No.1835 of 2002, P.W.3 has been shown as a witness on the side of the Respondent/ Husband/Petitioner. When P.W.3 has not been examined as a witness before the Family Court, then, he cannot be shown as a witness in the Fair Order in the said Original Petition. As such, there is a need for this Court to call for the records in O.P.No.1835 of 2002 on the file of Learned II Additional Judge, Family Court, Chennai. 4. The Learned Counsel for the Petitioner/Appellant contends that the Family Court in its order in O.P.No.1835 of 2002 has observed that the Petitioner/Appellant has made allegations regarding the life style of her father-in-law viz., the father of the Respondent/Husband and that the said allegations have not been proved by means of evidence. 5. The stand of the Petitioner/Appellant in the affidavit in M.P.No.1 of 2011 in C.M.A.No.2148 of 2008 is that a woman by name Vasanthakumari met her few years ago and informed that she is the wife of Kanagasabai i.e. the father of the Respondent/Husband and informed her that out of the wedlock, she was blessed with two daughters and that her marriage with him has been registered and she would furnish a copy of the Certificate of Marriage soon. Also, that she has given the Certificate of Marriage to the Petitioner/Appellant only during the end of May 2011. Also, that she has given the Certificate of Marriage to the Petitioner/Appellant only during the end of May 2011. Therefore, the Petitioner/Appellant has not been in a position to produce it before the Family Court to establish the allegations against her father-in-law during cross examination. Therefore, in the interest of justice, the Certificate of Marriage dated 06.10.1960 of S.Kanagasabai and Vasanthakumari and the certified copy of Petition O.P.No.534 of 2002 on the file of Family Court, Chennai are to be received by this Court as additional evidence in the Civil Miscellaneous Appeal. 6. Added further, O.P.No.534 of 2002 filed by the Respondent/ Husband (as Petitioner) against the Petitioner/Appellant/Wife (as Respondent) has been dismissed for default. Therefore, the certified copies of the two documents as mentioned aforesaid are to be received as additional evidence in the Civil Miscellaneous Appeal, on the side of the Petitioner/Appellant. Otherwise, the Petitioner/Appellant/Wife will be put to irreparable loss. 7. In response, the Learned Senior Counsel for the Respondent/ Husband submits that these M.P.Nos.1 and 2 of 2011, to receive the Certificate of Marriage of S. Kanagasabai and V.Vasanthakumari dated 06.10.1960 and the certified copy of Petition in O.P.No.534 of 2002 on the file of Family Court, Chennai as additional evidence and to call for the records in O.P.No.1835 of 2002, are belated one and when the matter has been listed several times for final hearing and that too in the part-heard stage, the Petitioner/Appellant, with a view to protract the proceedings, has projected these petitions and that they suffer from lack of bona fides. 8. The Learned Senior Counsel for the Respondent/Husband contends that P.W.3 has filed proof affidavit in O.P.No.1835 of 2002 on the file of the Family Court, Chennai, but the Petitioner/Appellant has not chosen to cross examine him. Though P.W.4 has been cited as a witness in the list furnished by the Respondent/Husband during the course of the trial of O.P.No.1835 of 2002, the Respondent/ Husband as thought fit not necessary to examine him, by oversight the name of P.W.4 has found a place in the list of witnesses annexed to the order passed in the main Original Petition. 9. 9. Proceeding further, the Learned Senior Counsel for the Respondent/Husband submits that the order in O.P.No.1835 of 2002 has been passed by the Learned II Additional Family Court Judge, Chennai based on the Petitioner/Appellant's omissions and commissions and indeed, there is no mention of evidence of witnesses P.W.3 and P.W.4 in the order in O.P.No.1835 of 2002 etc. and only to project a new case and to re-agitate the issue from the original stage, these petitions have been filed by the Petitioner/Appellant and hence, they are to be dismissed by this Court, in furtherance of substantial cause of justice. 10. At this juncture, the Learned Counsel for the Petitioner/ Appellant/Wife cites the decision of Hon'ble Supreme Court in Juwarsinghand others V. The State of Madhya Pradesh [AIR 1981 Supreme Court 373] wherein it is held that 'cross examine is not the only method of discrediting a witness and that Courts are not bound to accept testimony which on the face of it is unacceptable merely because there is no cross examination.' 11. It is to be noted that in order to entertain a petition, for reception of additional evidence in an Appeal, the following one or more of the three conditions are to be satisfied: (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; (b) the person desirous to producing the additional evidence proves that notwithstanding his exercise of due diligence, such evidence has not been within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against has been passed; or (c) 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 as per decision MandalaMadhava Rao V. Mandala Yadagiri, AIR 2001 AP 407 . 12. It is to be borne in mind that a Court of Law before entertaining the reception of additional documents, the party concerned must satisfy that they could not place those documents at the appropriate forum viz., before the trial Court and further, there ought to be a bona fide effort in not filing the said documents before the trial Court. It is to be borne in mind that a Court of Law before entertaining the reception of additional documents, the party concerned must satisfy that they could not place those documents at the appropriate forum viz., before the trial Court and further, there ought to be a bona fide effort in not filing the said documents before the trial Court. An acceptable reason must be placed before the Court of Law for not placing the relevant documents at the appropriate time and that at the appellate stage, the parties cannot be allowed to place the documents as additional evidence. 13. The object of Order 41 Rule 27(1)(aa) is that a person, who for reasons assigned therein has not been in a position to produce the evidence before the trial Court, must be enabled to produce the same before the appellate Court. Indeed, Section 107(d) of the Civil Procedure Code enables the appellate Court to take additional evidence or to require such evidence to be taken subject to the conditions being specified as per Order 41 Rule 27 of Civil Procedure Code. Section 107(d) of Civil Procedure Code is undoubtedly an exception to the general rule. 14. As per Order 41 Rule 27(b) of Civil Procedure Code, the admissibility of additional evidence will depend, not upon the relevancy to the issue before the Court of evidence sought to be admitted, or upon the fact whether or not the Petitioner had the opportunity of adducing evidence at some earlier stage, but upon whether or not the appellate Court requires the evidence to enable it to pronounce judgment or for any other substantial case as per decision Re Premchand, [(1894) ILR 21 Calcutta 484]. 15. Moreover, Order 41 Rule 27 is not primarily meant to allow a party who has been unsuccessful before the trial Court or lower Court to breach up the weakness his/her case and to fill up the gaps before the appellate Court. The settled proposition of law is that additional evidence can only be permitted under specified circumstances and not as a matter of routine. A petition as per Order 41 Rule 27 of Civil Procedure Code cannot be permitted to bring something on record, which is by law, considered to be a part of record. 16. It is to be pointed out that whether evidence is adduced by means of an affidavit. A petition as per Order 41 Rule 27 of Civil Procedure Code cannot be permitted to bring something on record, which is by law, considered to be a part of record. 16. It is to be pointed out that whether evidence is adduced by means of an affidavit. Such affidavit should state the basis of knowledge or source of information and in this regard, the ingredients of Order 19 Rule 3 of Civil Procedure Code are to be clearly made mention of. The fundamental principle of reception of additional evidence is that the individual seeking permission of additional evidence ought to establish that with the best efforts such additional evidence could not have been let in at the initial stage. The next one is that the party aggrieved by the admission of additional evidence must have an opportunity to rebut such additional evidence. The additional evidence must be relevant for the determination of subject matter of controversy/dispute. 17. This Court worth recalls the decision of the Hon'ble Supreme Court in Smt.ShantiDevi (since dead represented by L.Rs.) and others V. Ram Narain (since dead represented by L.Rs.) and others, [AIR 2004 Rajasthan 232], at page 237 in paragraph 14, wherein it is held as follows: "14.That takes us to the application of the appellants made under Order 41, Rule 27 CPC. It is stated in the application that has been filed on July 24, 2003, that Praveen Kumar, one of the appellant who is the son of original defendant lat Ratan Lal, had gone to Jhunjhunu, of which place they are original inhabitants and while he was taking stock of old record of his father, he came across original sale deed dated April 23, 1965 which pertains to the purchase of a room of the suit property from Chhote Lal by later Ratan Lal. Considering that it may have some relevancy to the suit property, Praveen Kumar brought the said document with him and placed before his counsel Sh. B.P. Agarwal on July 23, 2003. As the said document was highly relevant, it was decided to place it on record. The respondents in the reply to the application averred that Ratan Lal died in 1971 and it is curious enough that after a lapse of 32 yeras, Praveen Kumar had gone to take stock of the old record of his father. As the said document was highly relevant, it was decided to place it on record. The respondents in the reply to the application averred that Ratan Lal died in 1971 and it is curious enough that after a lapse of 32 yeras, Praveen Kumar had gone to take stock of the old record of his father. The respondents further stated that the appellants had no property at Jhunjhunu and Ratan Lal had been carrying on business in Jaipur for the last 50 years. Ratan Lal, Shanti Devi and Vinay Kumar all died in Jaipur. Thus the whole contention of the appellants appear to have been made with ulterior motive." 18. Further, this Court aptly points out the decision of the Hon'ble Supreme Court in The Official Liquidator V. Raghawa Desikachar and others, [ (1974) 2 SCC 741 ] wherein it is observed as follows: "Under clause (1)(a) of Order 41, Rule 27, the appellate court has to see whether the trial Judge has improperly rejected the request to record the evidence of the respondents and consequently whether the appellate court was justified in directing additional evidence to be recorded. Under clause (1)(b) of C.P.C. the true test is whether the appellate court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced." 19. Apart from the above, this Court cites the following decisions: (a) In Haryana State Industrial Development Corporation V. Cork Manufacturing Company [ (2007) 8 SCC 120 ] at page 122, the Hon'ble Supreme Court has held as follows: "Order 41 Rule 27 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. Lack of proper legal advice or inadvertence to produce the legal notice in evidence is not a ground to hold that there was substantial cause for acceptance of the additional evidence. Lack of proper legal advice or inadvertence to produce the legal notice in evidence is not a ground to hold that there was substantial cause for acceptance of the additional evidence. Moreover, it could not be said that non-realisation of the importance of the documents due to inadvertence or lack of proper legal advice would bring the case within the expression "other substantial cause" in Order 41 Rule 27 CPC." (b) In The Municipal Corporation of Greater Bombay V. Lala Pancham and others, AIR 1995 SC 1008, the Hon'ble Supreme Court has observed as follows: "Under O.41, Rule 27 the appellate court has the power to allow a document to be produced and a witness to be examined. But 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 does not entitle the appellate 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." (c) In Karnataka Board of Wakf V. Government of India and others, [ (2004) 10 SCC 779 ], the Hon'ble Supreme Court has held thus: "The scope of Order 41 Rule 27 CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment." (d) In Abdul Gani and another V. Shahzad and others, [1999 A I H C 3491], it is observed as follows: "The evidence which is sought to be produced before the appellate Court under R.27 of O.41 as well as the evidence which the court required to be produced before it for the just decision of the case must be shown to be in existence. Besides such evidence must be shown to be relevant and admissible. Besides such evidence must be shown to be relevant and admissible. Unless any evidence is in existence and shown to be relevant and admissible, the powers given by R.27 of O.41 C.P.C. cannot be exercised for the simple reason that this Rule does not empower the appellate Court to conduct any inquiry or investigation about the existence of any evidence. In the instant case, the documents in respect of which the application had been filed by the petitioner before the first appellate Court, were not produced as required by R.27 of O.41 C.P.C. In other words, the petitioner did not file any document worth the name along with his name purporting to be application under O.41 R.27 C.P.C. In these circumstances, the power under R.27 of O.41 C.P.C. could not be exercised by the learned District Judge." 20. In the instant case, the Certificate of Marriage is dated 06.10.1960 in respect of S.Kanagasabai and V.Vasanthakumari. The said Kanagasabai has seen in the Certificate of Marriage is none else than the father of the Respondent/Husband. The other name V.Vasanthakumari found in the Certificate of Marriage dated 06.10.1960 is the wife of Respondent/Husband's father. The certified copy of Petition O.P.No.534 of 2002 on the file of the Family Court, Chennai filed by the Respondent/Husband against the Appellant/Wife relates to the relief of judicial separation prayed for by the Respondent /Husband as per Section 10 of the Hindu Marriage Act, 1995. The said O.P.No.534 of 2002 on the file of the Learned Principal Judge, Family Court, Chennai has been dismissed on 26.08.2002. These two documents sought to be projected on the side of Petitioner/Appellant/ Wife to be received as additional evidence are not relevant for determination of the disputes/controversies in F.C.O.P.No.1835 of 2002 and as such, the same cannot be accepted as additional evidence. Moreover, why these two documents have not been diligently filed by the Family Court in O.P.No.1835 of 2002, inspite of the best efforts of the Petitioner/Appellant. No wonder, the ingredients of Order 41 Rule 27 of Civil Procedure Code are an exception to the general rule. When these two documents as referred to earlier are not necessary for effective adjudication of the present Civil Miscellaneous Appeal, then, these are not to be admitted in Appeal as additional evidence, in our considered opinion of this Court. No wonder, the ingredients of Order 41 Rule 27 of Civil Procedure Code are an exception to the general rule. When these two documents as referred to earlier are not necessary for effective adjudication of the present Civil Miscellaneous Appeal, then, these are not to be admitted in Appeal as additional evidence, in our considered opinion of this Court. All the more the additional evidence sought to be produced on the side of the Petitioner /Appellant are not relevant for deciding the Civil Miscellaneous Appeal before this Court. Even in the absence of Certificate of Marriage dated 06.10.1960 and the certified copy of Petition in O.P.No.534 of 2002 on the file of Family Court, Chennai, this Court is in a position to pronounce Judgment in Civil Miscellaneous Appeal on the materials available before it. 21. In the present case, the Petitioner/Appellant had adequate opportunity to produce the additional evidence in the proceedings in O.P.No.1835 of 2002 on the file of II Additional Family Court Judge, Chennai, but the Petitioner has not availed the opportunity to produce the additional evidence. Indeed, the Petitioner/Appellant has only marked Ex.R.1-Notice dated 13.11.2002 in O.P.No.1835 of 2002, but has not examined herself as a witness. The mere assertions in M.P.No.1 of 2011 that the Petitioner/Appellant has not been in a position to prove that inspite of her due diligence, she could not produce the additional documents in questions before the trial Court will not suffice and at the appellate stage in final hearing of the Civil Miscellaneous Appeal before this Court, there is no sufficient material ground on which the additional evidence must be admitted for the consideration of the issues involved in the Appeal. As such, this Court, exercising its judicial discretion, is not permitting the Petitioner/ Appellant to produce the additional evidence as a matter of right and in that view of the matter, M.P.No.1 of 2011 is dismissed. 22. Though the order of the Family Court in O.P.No.1835 of 2002 dated 12.05.2008, the names of witnesses P.W.3 and P.W.4 are annexed in the list of witnesses examined, in reality, only P.W.1 and P.W.2 have been examined by the Family Court. 22. Though the order of the Family Court in O.P.No.1835 of 2002 dated 12.05.2008, the names of witnesses P.W.3 and P.W.4 are annexed in the list of witnesses examined, in reality, only P.W.1 and P.W.2 have been examined by the Family Court. As such, creeping in of the names of P.W.3 and P.W.4 as witnesses being cited in the list of witnesses examined by the Family Court in O.P.No.1835 of 2002, either inadvertently or by way of accidental omission, will not in any way heighten or advance the case of the Petitioner/Appellant to call for the records in O.P.No.1835 of 2002 from the file of II Additional Family Court Judge, Chennai. The order of the Family Court in O.P.No.1835 of 2002 dated 12.05.2008 does not refer to the evidence of P.W.3 and P.W.4 also. Therefore, the accidental error or inadvertent mistake committed by the Family Court at the time of preparing the list of witnesses examined and annexing the same in the Judgment is of no avail to the Petitioner/Appellant. Viewed in that perspective, M.P.No.2 of 2011 to call for the records in O.P.No.1835 of 2002 is devoid of merits and accordingly, M.P.No.2 of 2011 is dismissed. In the result, M.P.Nos.1 and 2 of 2011 are dismissed. No costs.