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2019 DIGILAW 664 (RAJ)

Mohar Singh v. Sarjeet

2019-02-26

VEERENDR SINGH SIRADHANA

body2019
JUDGMENT Veerendr Singh Siradhana, J. - The short controversy raised in the instant writ application, is, on the issue whether an application under Order XLI, Rule 27 CPC, is to be heard at the time of final hearing of the appeal at a stage when after appreciation of evidence on record, the court reaches the conclusion that the additional evidence was required to be taken on record or such an application could be adjudicated upon earlier. The issue raised is no more res-integra in view of law declared by Apex Court of the land in the case of M/s Eastern Equipment ans Sales Ltd. vs. ING. Yash Kumar Khanna: AIR 2008 SC 2360 ; Malyalam Plantations Ltd. vs. State of Kerala and another: AIR 2011 SC 559 and Union of India vs. Ibrahim Uddin and Another: (2012) 8 SCC 148 , wherein the Supreme Court in no uncertain terms held that in case, an application for taking additional evidence on record has been considered and allowed prior to hearing of appeal, the order being a product of total and complete nonapplication of mind, as to whether such evidence is required to be taken on record to pronounce judgment or not, remain inconsequential/in executable and is liable to be ignored. 2. In the instant case at hand, it is not disputed that the appeal instituted in the year 2002, is, still pending while the Appellate Court has adjudicated upon an application under Order XLI, Rule 27 vide impugned order dated 17th November 2017. 3. In the case of Ibrahim Uddin & Anr. (supra), on a survey of earlier opinions the Apex Court of the land, in no uncertain terms, as to stage of consideration of an application under Order XLI, Rule 27 CPC, held thus: "38. An application under Order XLI, Rule 27 Code of Civil Procedure is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. An application under Order XLI, Rule 27 Code of Civil Procedure is to be considered at the time of hearing of appeal on merits so as to find 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. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide: Arjan Singh vs. Kartar Singh and Ors. : AIR 1951 SC 193 ; and Natha Singh and Ors. vs. The Financial Commissioner, Taxation, Punjab and Ors. : AIR 1976 SC 1053 ). 39. In Parsotim Thakur and Ors. vs. Lal Mohar Thakur and Ors.: AIR 1931 PC 143 , it was held: The provisions of Section 107 as elucidated by Order XLI, Rule 27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of appeal. Under Rule 27, Clause (1) (b) it is only where the appellate Court "requires" it (i.e. finds it needful). ... The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent ", it may well be that the defect may be pointed out by a party, or that a party may move the Court to apply the defect, but the requirement must be the requirement of the court upon its appreciation of evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing, and under R.29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. The power so conferred upon the Court by the Code ought to be very sparingly exercised and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case. (Emphasis added) (See also: Indirajit Pratab Sahi vs. Amar Singh AIR 1928 P.C. 128 ) 40. In Arjan Singh vs. Kartar Singh and Ors. (supra), this Court held: ... If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent... The order allowing the Appellant to call the additional evidence is dated 17.8.1942. The appeal was heard on 24.4.1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing the judgment (Emphasis added) 41. Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/in executable and is liable to be ignored. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/in executable and is liable to be ignored. In the instant case, the application under Order XLI, Rule 27 Code of Civil Procedure was filed on 6.4.1998 and it was allowed on 28.4.1999 though the first appeal was heard and disposed of on 15.10.1999. In view of law referred to herein above, the order dated 28.4.1999 is just to be ignored. 42. The High Court while admitting the appeal had framed the following substantial questions of law: 1. Whether the judgment and decree passed by the lower appellate court is vitiated in law inasmuch as the land in dispute which was recorded in Column B-4 under Rule 6 of the Cantonment Land Administration Rule 1937 was wrongly and illegally discarded on the ground of secondary evidence in the presence of the original register maintained by the Military Estate Officer. 2. Whether the certified copy of the relevant registers maintained under the Cantonment Act are admissible in evidence and appellate court erred in law in discarding the same illegally against the relevant provisions of the Evidence Act and decreed the suit of the Plaintiff on the false pretext that there is no document was filed on behalf of the Defendant? 3. Whether the appellate court did not consider this aspect at all that the suit for declaration without possession is not maintainable is barred by the provision of Specific Relief Act. 4. Whether the lower appellate court has committed illegality while accepting the Will dated 1.3.1992 filed on 28.4.1999 without its proof by Plaintiff? The High Court admittedly did not answer any of them, though had the question Nos. 2, 3 and 4 been decided, the result would have been otherwise. Section 34 of the Specific Relief Act, 1963:" 4. Applying the principles deducible from the law declared by the Apex Court of the land in the cases referred herein above; the impugned order dated 17th November, 2017, has to be set aside and is hereby set aside. In the result, writ application succeeds and is hereby allowed. Section 34 of the Specific Relief Act, 1963:" 4. Applying the principles deducible from the law declared by the Apex Court of the land in the cases referred herein above; the impugned order dated 17th November, 2017, has to be set aside and is hereby set aside. In the result, writ application succeeds and is hereby allowed. Looking to the fact that appeal is pending since 2002; the Appellate Court would do the needful to adjudicate upon the matter as expeditiously as possible; preferably, within three months from the date a certified copy of this order is presented.