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2015 DIGILAW 583 (UTT)

MAHIPAL SINGH v. NISHA GUPTA

2015-12-18

U.C.DHYANI

body2015
JUDGMENT U.C. Dhyani, J. (Oral) By means of present writ petition, the petitioners seek writ in the nature of certiorari quashing the impugned order dated 05.12.2015, passed by learned I Addl. District Judge, Dehradun, in civil appeal no. 71 of 2011, Mahipal Singh vs Nisha Gupta. A prayer has also been sought quashing the impugned order dated 10.09.2014, passed by learned V Addl. District Judge, Dehradun, in civil appeal no. 71 of 2011, Sri Mahipal Singh vs Smt. Nisha Gupta, and be pleased to allow application 27C of the petitioners. A further direction has been sought to direct learned lower appellate court to proceed and act in furtherance of order dated 17.10.2011 in recording of additional evidence following the provisions of order 41 Rule 28 CPC. 2. It is the case in which a sale deed filed by defendants-appellants (petitioners herein) was permitted to be taken on record, with the consent of plaintiff (respondent herein), but when the petitioners wanted to examine the executor of the sale deed, during the course of hearing, the same was denied by learned court below and, hence, present writ petition. 3. It is the submission of learned counsel for the respondent that the sale deed, which was filed by the petitioners, was executed after the judgment and decree was passed by the trial court. Learned counsel for the respondent, therefore, contends that any document, which was not before the trial court cannot be permitted to be filed before the appellate court. But, in the instant case, the said document was permitted to be taken on record with the consent of the respondent. 4. Whether any document, which was executed before the decree can be permitted to be filed, was subject matter of decision before the Hon’ble Apex Court as well as before the Division Bench of Hon’ble Allahabad High Court and Bombay High Court. 5. In paragraph no. 7 of its decision rendered in Municipal Board, Kishangarh vs Chand Mal and Company, (1999) 9 SCC 198 , Hon’ble Supreme Court has held, as under: “Since the High Court was of the opinion that subsequent events cannot be looked into by the Executing Court, it did not dispose of the application filed under Order 41, Rule 27, CPC by the appellant. The lease in favour of the respondent having been cancelled and the land in question having been included in the Municipal area, could the decree be still executed is the question which has to be answered by the Executing Court.” 6. In paragraph no. 6 of its decision rendered in the case of Raghuraj Singh vs State of U.P., [ (2010) 8 ADJ 334 (DB)], a Division Bench of Hon’ble Allahabad High Court has held, as under: “It seems that during the pendency of the instant appeals certain developments took place and subsequent to the same certain awards have been made by the reference Court with respect to certain other acquired lands which are similar to that of the appellants herein. To bring the same in the notice of this Court, the appellants have filed a supplementary paper-book alongwith an application for the same to be taken on record on 13.8.2003. It is important to mention here that this Court can take notice of such additional evidence under the provisions of Order XLI, Rule 27 of the Code of Civil Procedure, 1908. Order XLI, Rule 27, CPC provides that: 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 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 hi 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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 7. Learned counsel for the respondent, on the other hand, placed a decision of Hon’ble Bombay High Court, paragraph no. Learned counsel for the respondent, on the other hand, placed a decision of Hon’ble Bombay High Court, paragraph no. 3 of which runs as follows: “Before we proceed to analyse the impugned award, we have to address ourselves to another question as to whether under the facts and circumstances of the case this Court can, in exercising its Appellate jurisdiction admit additional evidence. The appellant herein has filed an application before this Court as Misc. Civil Application no. 387/96 whereby the appellant is seeking to produce two Awards passed by the Court below subsequent to the date of the impugned Award. One Award in Land Acquisition Case no. 88/85 dated 11th March, 1993 and another in Land Acquisition Case no. 42/88 dated 29th September, 1994. Admittedly, these Awards came into existence after the impugned Award. The learned Advocate General appearing for the State, has vehemently opposed the application and contended that a document which was not in existence at the time of the decree of the lower court cannot be allowed to be produced at the appellate stage as additional evidence under Order 41 Rule 27(1)(b) of the Civil Procedure Code……….” 8. The distinguishing feature of the instant case is that the sale deed filed by the petitioners was permitted to be brought on record before learned Appellate Court by respondent, as the same was not opposed by learned counsel for the respondent. Once a document has been permitted to be brought on record, it becomes incumbent upon that court to permit the party, who has filed that document to be examined in evidence unless there are compelling reasons for not permitting to do so. 9. At this stage of dictation, learned counsel for the parties agreed that on a single date to be fixed by this Court, the petitioners shall file the affidavit and examination-in-chief of Laxman Dass Bhatia, the vendor, and he will be cross-examined on the same day and, if, the circumstances are beyond control, then on the following day. 10. This Court records the aforesaid statement of learned counsel for the parties and fixes 12.01.2016, which is said to be a date already fixed by learned court below, for filing of the affidavit and for examination-in-chief of Laxman Dass Bhatia. 10. This Court records the aforesaid statement of learned counsel for the parties and fixes 12.01.2016, which is said to be a date already fixed by learned court below, for filing of the affidavit and for examination-in-chief of Laxman Dass Bhatia. Needless to say, that he will be cross-examined on behalf of the respondent on the same day or if, the circumstances are beyond the control, on the following day. It is made clear that the examination-in-chief shall be confined only to the execution and contents of sale deed dated 22.07.2011, and not beyond that. The order impugned is hereby set aside. 11. It is also provided, on the request of learned counsel for the respondent, that learned Appellate Court shall make an endeavour to decide the appeal at the earliest possible without inordinate delay. 12. Writ petition, thus, stands disposed of.