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2019 DIGILAW 1509 (ALL)

Surendra Kaur v. Vivek Gupta

2019-05-31

YOGENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : Yogendra Kumar Srivastava, J. 1. Heard Sri Vijay Mani Tiwari, learned counsel for the petitioners and Sri Pankaj Agarwal, learned counsel for the respondents. 2. The present petition seeks to challenge the order dated 16.04.2019, passed by the District Judge, Aligarh in U.P.U.B. Appeal No. 15 of 2017, Smt. Surendra Kaur and Others vs. Vivek Gupta and Others, whereby, the application filed by the petitioners-tenant (Application No. 11 Ga) seeking to adduce additional evidence under Order 41 Rule 27 C.P.C. has been rejected. 3. Learned counsel for the petitioners has placed reliance upon the Application No. 11 Ga, which had been filed in Appeal and submits that the petitioners evidence was required to be adduced for the reason that the earlier counsel did not effectively pursue the case and did not tender proper advise and as such it was necessary that the evidence be permitted to be adduced at the stage of appeal. 4. The court below has rejected the aforementioned contention by stating that additional evidence could only be taken as per the provisions under Order 41 Rule 27 of the Code of Civil Procedure, and lack of proper legal advice or inadvertence could not be a ground for adducing additional evidence. 5. Rule 27 under Order 41 of the Code of Civil Procedure enumerates the circumstances in which the appellate court may admit additional evidence, whether oral or documentary in appeal, and they are as under:- (i) Where the lower court has improperly refused to admit evidence which ought to have been admitted. (ii) Where such additional evidence was not within the knowledge of the party or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. (iii) Where the appellate court requires such evidence either to enable it to pronounce judgment, or for any other substantial cause. 6. As a general rule, in terms of sub-rule (1) of Rule 27, the appellate court is to decide an appeal on the evidence led by the parties before the trial court and is not to admit additional evidence for the purpose of disposal of an appeal. 6. As a general rule, in terms of sub-rule (1) of Rule 27, the appellate court is to decide an appeal on the evidence led by the parties before the trial court and is not to admit additional evidence for the purpose of disposal of an appeal. Section 107 (1) (d), however carves out an exception to the general rule, and empowers the appellate court to take additional evidence or requires such evidence to be taken subject to the conditions laid down in Rule 27 of Order 41. 7. In Shivajirao Nilangekar Patil and Others vs. Mahesh Madhav Gosavi and Others, (1987) 1 SCC 227 it was held that the basic principle of admission of additional evidence is that the person seeking admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance. The relevant observations in the aforementioned judgment are as follows:- "27......The basic principle of admission of additional evidence is that the person seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance. Secondly the party affected by the admission of additional evidence should have an opportunity to rebut such additional evidence. Thirdly, that additional evidence was relevant for the determination of the issue......" 8. In the case at hand, the application of the petitioners for adducing additional evidence in the appellate court would be referable to sub-rule (aa) under Order 41 Rule 27 (1). 9. The aforementioned sub-rule (aa) was introduced in terms of C.P.C. (Amendment) Act 104 of 1976 as another ground on which additional evidence may be produced in the appellate court. The intention of Rule 27 (1) (aa) is that the party who, for reasons mentioned therein, was unable to produce the evidence in the trial court, should be enabled to produce the same in the appellate court. In the event sub-rule (aa) under Order 41 Rule 27 (1) is to be applied, the onus is on the applicant to show that the ingredients or conditions precedent therein are satisfied. 10. The conditions required for application of sub-rule (aa) under Order 41 Rule 27(1) came up for consideration in the case of K.R. Mohan Reddy vs. Net Work Inc. 10. The conditions required for application of sub-rule (aa) under Order 41 Rule 27(1) came up for consideration in the case of K.R. Mohan Reddy vs. Net Work Inc. (2007) 14 SCC 257 The Supreme Court after referring to the earlier judgments in the case of State of Gujarat vs. Mahendra Kumar Parshottambhai Desai (dead) by L.Rs. (2006) AIR SC 1864 and Municipal Corporation of Greater Bombay vs. Lal Pancham, (1965) AIR SC 1008 in the context of adduction of additional evidence at the appellate stage in terms of provisions under Order 41 Rule 27 (1), held that in the event sub-rule (aa) is to be applied, the onus would be on the applicant to show that the ingredients or conditions precedent mentioned therein are satisfied, and a good reason must also be shown as to why the evidence was not produced before the trial court. The observations made in the aforementioned judgment are as follows:- "15. The High Court, unfortunately did not enter into the said questions at all. As indicated hereinbefore, the High Court proceeded on the basis as if Clause (b) of Sub-Rule (1) of Rule 27 of Order XLI of CPC was applicable. 16. It is now a trite law that the conditions precedent for application of Clause (aa) of Sub-Rule (1) of Rule 27 of Order XLI is different from that of Clause (b). In the event the former is to be applied, it would be for the applicant to show that the ingredients or conditions precedent mentioned therein are satisfied. On the other hand Clause (b) to Sub-Rule (1) of Rule 27 of Order XLI of CPC is to be taken recourse to, the appellate Court was bound to consider the entire evidences on record and come to an independent finding for arriving at a just decision; adduction of additional evidence as has been prayed by the appellant was necessary. 17. The fact that the High Court failed to do so, in our opinion, amounts to misdirection in law. 17. The fact that the High Court failed to do so, in our opinion, amounts to misdirection in law. Furthermore, if the High Court is correct in its view that the plaintiff-respondent had proceeded on the basis that the suit in its entirely based on a cheque, wherefor, it was not necessary for it to file the books of accounts before the trial Court, finding contrary thereto could not have been arrived at that the same was in fact required to be proved so as to enable the appellate Court to arrive at a just conclusion. 18. The Supreme Court in State of Gujarat vs. Mahendra Kumar Parshottambhai Desai (dead) by LRs. (2006) AIR SC 1864 relying upon Municipal Corporation of Greater Bombay vs. Lal Pancham and Others, held as under: Though the appellate Court has the power to allow a document to be produced and a witness to be examined under Order XLI Rule 27 CPC, 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 did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for purposes of pronouncement of judgment in a particular way. 19. Appellate Court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial Court, but it will be different if the Court itself require the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the Court. But mere difficulty is not sufficient to issue such direction. While saying so, however, we do not mean that the Court at an appropriate stage would be precluded from considering the applicability of Clause (b)." 11. The conditions precedent for grant of permission for production of additional evidence at appellate stage under Order 41 Rule 27 (1) (aa), were restated in the case of State of Karnataka and Another vs. K.C. Subramanya and Others, (2014) 13 SCC 468 The relevant observations made in the judgment are as follows:- "4. The conditions precedent for grant of permission for production of additional evidence at appellate stage under Order 41 Rule 27 (1) (aa), were restated in the case of State of Karnataka and Another vs. K.C. Subramanya and Others, (2014) 13 SCC 468 The relevant observations made in the judgment are as follows:- "4. However, we do not feel impressed with this argument and deem it fit to reject it in view of Order 41 Rule 27(1)(aa) which clearly states as follows: "27. (1)(a)........ (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. (b)............" On perusal of this provision, it is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum. 5. It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specifically incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed to be done at his leisure or sweet will." 12. Placing reliance upon the judgments in the case of K.R. Mohan Reddy vs. Net Work Inc. (2007) 14 SCC 257 , North Eastern Railway Admn. vs. Bhagwan Das, (2008) 8 SCC 511 , N. Kamalam vs. Ayyasamy, (2001) 7 SCC 503 and Union of India vs. Ibrahim Uddin, (2012) 8 SCC 148 the principles with regard to adduction of additional evidence at appellate stage were summarized in the case of A. Andisamy Chettiar vs. A. Subburaj Chettiar, (2015) 17 SCC 713 and it was stated that unless conditions mentioned under Order 41 Rule 27 are fulfilled, additional evidence cannot be adduced at appellate stage. The relevant extract from the judgment is as follows:- "11. The relevant extract from the judgment is as follows:- "11. Under the scheme of the Code of Civil Procedure, 1908 (for short "the Code") whether oral or documentary, it is the trial court before whom parties are required to adduce their evidence. But in three exceptional circumstances additional evidence can be adduced before the appellate court, as provided under Section 107(1)(d) read with Rule 27 of Order 41 of the Code. Rule 27 of Order 41 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. (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. (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." 12. From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfilment of either of the three conditions mentioned in Rule 27. In the case at hand, no application was moved before the trial court seeking scientific examination of the document (Ext.A-4), nor can it be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him. In the case at hand, no application was moved before the trial court seeking scientific examination of the document (Ext.A-4), nor can it be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him. Now it is to be seen whether the third condition i.e. one contained in clause (b) of sub-rule (1) of Rule 27 is fulfilled or not. 13. In K.R. Mohan Reddy vs. Net Work Inc. (2007) 14 SCC 257 , this Court has held as under: (SCC p. 261, para 19) "19. The appellate court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial court, but it will be different if the court itself requires the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the court. But mere difficulty is not sufficient to issue such direction." 14. In North Eastern Railway Admn. vs. Bhagwan Das (2008) 8 SCC 511 , this Court observed thus: (SCC pp. 515-16, para 13) "13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist." 15. In N. Kamalam vs. Ayyasamy, (2001) 7 SCC 503 , this Court, interpreting Rule 27 of Order 41 of the Code, has observed in para 19 as under: (SCC p. 514) "19.......the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal - it does not authorise any lacunae or gaps in the evidence to be filled up. The authority and jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way." 16. In Union of India vs. Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362, this Court has held as under: (SCC p. 171, para 49) "49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore 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." 13. Counsel for the petitioners has not been able to dispute the aforementioned legal position. 14. This Court may also take notice of the fact that the power of superintendence conferred under Article 227, is to be exercised most sparingly and within the parameters which have been summarized in the case of Shalini Shyam Shetty and Another vs. Rajendra Shankar Patil, (2010) 8 SCC 329 and also in the case of Radhey Shyam and Another vs. Chhabi Nath and Others, (2015) 5 SCC 423 . 15. Learned counsel for the petitioners have not been able to point out as to how the conditions precedent mentioned under Order 41 Rule 27 (1) were satisfied in their case so as to enable the additional evidence to be admitted by the appellate court, nor has been able to point out any material error or irregularity in the order passed by the court below so as to warrant interference in exercise of power under Article 227 of the Constitution of India. 16. The petition lacks merit and it is, accordingly.