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2019 DIGILAW 431 (ALL)

Mohammad Irfan v. Mohammad Hashim

2019-02-18

MANOJ KUMAR GUPTA

body2019
ORDER : Manoj Kumar Gupta, J. 1. The petitioners have called in question the order dated 5.1.2019 passed by the appellate court in Civil Appeal No.15 of 2012, thereby rejecting an application Paper 32-C for admitting additional evidence. The evidence sought to be adduced is a Memorandum of oral gift allegedly executed by Nanhe to whom the suit property belonged. It was filed in support of the claim that thereby the suit property, in respect of which suit for partition was filed, was exclusively gifted to Mohd. Kasim, the deceased father of the petitioners. 2. The trial court rejected the application observing that the alleged Memorandum of oral gift could have been brought on record by the original defendant Mohd. Kasim while the suit was pending, had he exercised due diligence. It has been observed that Mohd. Kasim remained alive for almost three years after filing of the appeal, having died on 19.8.2015, but he did not bring on record the alleged Memorandum of oral gift. It has also been observed that Mohd. Kasim had not pleaded about any written Memorandum being in existence, though he set up the theory of oral Hiba in his favour. 3. Sri B.B. Paul, learned counsel for the petitioners submitted that the observation made by the appellate court in the impugned order that there was no pleading about Memorandum of oral gift is wholly perverse and based on misreading of the pleadings. He has invited the attention of the Court towards paragraph 17 of the written statement in which it is stated that Nanhe, father of the defendant made an oral gift of the suit property on 21.7.1992 in his favour in presence of witnesses and also executed a Memorandum of oral gift on the same date. According to him, the said pleading was not considered by the appellate court while rejecting the application. He further submitted that the reason for not being able to bring on record the Memorandum of oral gift when the suit was pending was clearly disclosed in the application filed under Order 41 Rule 27 CPC. It was specifically stated that while cleaning the house on 6.9.2017, the appellants managed to lay their hand over the document and when it was showed to their counsel, he advised them to file the same in appeal. It was specifically stated that while cleaning the house on 6.9.2017, the appellants managed to lay their hand over the document and when it was showed to their counsel, he advised them to file the same in appeal. According to learned counsel, the explanation furnished was sufficient to admit additional evidence under clause (aa) of sub-rule (1) of Rule 27 of Order 41. 4. He has placed reliance on the following judgments in support of his contention that additional evidence could be admitted by the court at any stage of the proceedings:- (i) AIR 1963 SC 1526 , K.Venkataramiah vs A. Seetharama Reddy (ii) AIR 1965 SC 1008 Muncipal Corporation vs Lala Pancham and others. (iii) 2010 (3) ACJ 2077 (SC), Shalimar Chemical Works Ltd. Vs. Surendra Oil & Dal Mills (Refineries) & others (iv) 2012 (3) ACJ 1665 (SC) Union of India Vs. Ibrahim Uddin 5. On the other hand, counsel for respondent no.1 Sri Yasharth submitted that the court below has rightly rejected the application, as no ground was made out for admitting the additional evidence. He submitted that had Memorandum of oral gift been in existence, the same would have been filed by the original defendant Mohd Kasim during his life time. He further submitted that Mohd. Kasim had taken self contradictory pleas in paragraphs 16 and 17 of the written statement. In paragraph 16, it was pleaded that the suit property fell to his exclusive share under a family settlement, whereas in paragraph 17, it was pleaded that it came to him exclusively on basis of oral gift executed by his father in his favour. He further tried to contend that the witnesses of the alleged Memorandum of oral gift are different from those disclosed by the original defendant during his cross-examination. 6. I have considered the submissions of learned counsel for the parties and perused the material placed on record. 7. The plaintiff-respondent instituted a suit for partition being Original Suit No.620 of 1993 claiming 1/4th share in the suit property namely House No.630 (old)/814 (new), Bahadurganj, Tilak Road, Allahabad. The suit was decreed by the trial court by judgment dated 4.10.2011. Aggrieved thereby, Mohd. Kasim, predecessor-in-interest of the present petitioners filed Civil Appeal No.15 of 2012. During pendency of the appeal, Mohd. Kasim died on 19.8.2015. The petitioners being his heirs and legal representatives were substituted in his place. The suit was decreed by the trial court by judgment dated 4.10.2011. Aggrieved thereby, Mohd. Kasim, predecessor-in-interest of the present petitioners filed Civil Appeal No.15 of 2012. During pendency of the appeal, Mohd. Kasim died on 19.8.2015. The petitioners being his heirs and legal representatives were substituted in his place. After their substitution, they filed the application in question praying for taking on record the Memorandum of oral gift allegedly executed by Nanhe in favour of their deceased father Mohd. Kasim. It is dated 1.9.1992. 8. Indisputably, the original defendant all through his life time contested the proceedings claiming exclusive right in the suit property on basis of oral gift and a Memorandum thereof executed on the same date. However, the Memorandum was not filed in the suit though it remained pending for about eighteen years. Having lost the suit, he filed the appeal in the year 2012. He remained alive till the year 2015 and even during this period, the alleged Memorandum was not brought on record. In para 17 of the written statement filed by Mohd. Kasim, he took a specific pleading that Nanhe, on the date he made oral Hiba of the suit property, also executed “a Memorandum of oral gift before the same witnesses”. However the Memorandum of oral gift, which is sought to be brought on record, as noted above, is not of the same date i.e. 21.7.1992 as pleaded, but is dated 1.9.1992. The appellate court may be wrong in observing that there is no pleading regarding execution of Memorandum of oral gift but it would not make much difference inasmuch as the Memorandum of oral gift, which is sought to be brought on record, dated 1.9.1992 was definitely not the one pleaded in the written statement. 9. Indisputably, the appellate court is invested with the power to admit additional evidence provided one or the other of the contingencies stipulated under Order 41 Rule 27 CPC is made out. This has also been so held by the Supreme Court in various decisions cited by learned counsel for the petitioners. At the same time, the power to admit additional evidence cannot be exercised to facilitate a party to fill lacunae in evidence and even where no ground is made out for exercise of such power. This has also been so held by the Supreme Court in various decisions cited by learned counsel for the petitioners. At the same time, the power to admit additional evidence cannot be exercised to facilitate a party to fill lacunae in evidence and even where no ground is made out for exercise of such power. The original defendant, as noted above, having rested his entire case on the alleged oral gift and Memorandum of gift executed in writing, was thus having full knowledge of the existence of such a document. Had he exercised due diligence, there was no reason why the same could not have been brought on record by him before the trial court. In such circumstances, this Court does not find it a fit case for interference under Article 227 of the Constitution of India. The petition lacks merit and is dismissed.