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2017 DIGILAW 406 (TRI)

Purnima Rani Deb v. Chitta Ranjan Das, S/O. Haralal Das

2017-11-18

T.VAIPHEI

body2017
JUDGMENT & ORDER : Having heard Mr. A.Nandi, the learned counsel for the applicant-appellant, and Mr. P. Gautam, the learned counsel for the insurer-respondent No. 2, this application is devoid of merit and is liable to be rejected. 2. The applicants preferred an appeal from the judgment dated 25-2-2011 of the Motor Accident Claims Tribunal, Court No. 3, West Tripura, Agartala in Title suit (MAC) No.93 of 2007 declining to pass any award in their favor on the ground of their failure to adduce evidence. It may be noted that not a single document was produced by the applicants in the course of trial. Subsequently, this belated application was filed by them seeking leave under Order 41, Rule 27 of the Civil Procedure Code to produce a bunch of documents such as the copy of the FIR, charge sheet, registration certificate, etc. The application is vehemently opposed by the learned counsel for the insurer by contending that the grounds pleaded by the applicants for the belated filing of those documents do not come within the purview of Order 41, Rule 27 of the Code, and the application, which does not satisfy the ingredients of the said rules, is liable to be dismissed. 3. Before proceeding further, the provisions of Order 41, Rule 27 of the Code may be reproduced 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. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 4. A plain reading of the provisions extracted above leaves no room for doubt that the parties to an appeal are not entitled to produce additional documents, oral or documentary, before an appellate court unless (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or (b) the party seeking to produce the 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 for any other substantial cause. The appellate court requires any documents to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. It is a settled law that additional evidence can only be permitted in certain circumstances and not as a matter of course. When the reasons put forth by the applicant to satisfy the court to receive documents are found to be unsatisfactory, the application for production of additional documents shall have to be rejected. 5. It is against the backdrop of the aforesaid legal principles that I propose to examine the submissions of the learned counsel for the applicants. From paragraphs 2 and 3 of the application, it is evident that it was only at the time of hearing that the applicants prayed time for collecting documents. The Tribunal rejected the prayer. It may be noticed that the applicants did not give any reason for not collecting the said documents prior to the hearing or at the time of the hearing. Again, even at the time of filing the appeal, the said documents were not collected; no reason for the omission was assigned either. This is definitely not a case where notwithstanding the exercise of due diligence, such evidence was not within their knowledge or could not, after the exercise of due diligence, be produced by them at the time when the decree appealed against was passed. Clauses (a) and (b) are admittedly not applicable. This is definitely not a case where notwithstanding the exercise of due diligence, such evidence was not within their knowledge or could not, after the exercise of due diligence, be produced by them at the time when the decree appealed against was passed. Clauses (a) and (b) are admittedly not applicable. As for what is “for any other substantial cause”, the law is well-settled by now that it means it is the court that must require the additional evidence for some substantial cause. 6. In Radhakishan v. Khurshid Hussein, 47 IA 11, the Privy Council refused to allow the record of a previous suit to be admitted when its omission was due to the negligence of the party and their Lordships were able to pronounce the judgment without it. No case is made out by the applicants either to come within the purview of “for any other substantial cause”. Clause (b) will become applicable only when the appellate court finds itself unable to pronounce judgment after the hearing owing to a lacuna or defect in the evidence as it stands and will admit it only when confronted with such situation. The conditions referred to above are neither here nor there in this application. Moreover, the alleged vehicular accident took place as early as 2004 and by this time, the evidence must have disappeared; it is now too late in the day to agitate the grievances of the applicants. 7. For the reasons stated in the foregoing, there is no merit in this application, which is hereby rejected. The parties are, however, directed to bear their respective costs.