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2020 DIGILAW 892 (JHR)

Sr. Prasanna (CSST) v. Arbind Kumar

2020-09-15

RAJESH SHANKAR

body2020
ORDER : Rajesh Shankar, J. 1. The present writ petition has been filed for setting aside the order dated 4.12.2019 (Annexure-10 to the writ petition) passed by the learned District Judge-IV, Dumka in Civil Appeal No. 20 of 2018 whereby the application dated 25.11.2019 filed by the petitioner under Order XLI Rule 27 of CPC read with Sections 60 & 65 of the Indian Evidence Act, 1872 has been rejected. 2. The factual background of the case, as stated in the writ petition, is that the plaintiff/respondent No. 1 filed a suit being Title Suit No. 65 of 2005 for specific performance of the contract, injunction and delivery of possession. The defendant No. 1 (the respondent No. 2 herein) filed his written statement admitting the execution of the agreement for sale, however, denied the claim of the plaintiff stating that he failed to perform his part of contract by not paying the remaining consideration amount by or on 2.10.2003 i.e. within four months from the date of agreement to sale executed on 2.6.2003. During the pendency of the suit, the defendant No. 1 sold the suit property to the petitioner and as such she was also impleaded as the defendant No. 2 in the suit. The said suit was finally allowed in favour of the plaintiff vide judgment and decree dated 23.2.2018. Aggrieved thereby, the petitioner preferred an appeal being Civil Appeal No. 20 of 2018 before the learned Principal District Judge, Dumka and during the pendency of the said appeal, she filed an application under Order XLI Rule 27 of CPC read with Sections 60 and 65 of the Indian Evidence Act, 1872 seeking permission to adduce photocopy of the agreement dated 2.6.2003. However, the learned Trial Court rejected the said application vide impugned order dated 4.12.2019. Hence, the present writ petition. 3. Learned counsel for the petitioner submits that the learned Court below has rejected the said application of the petitioner without assigning any cogent reason. It is further submitted that the petitioner had explained sufficient reasons for the delay caused in filing the said document. However, the learned Court below has erroneously rejected the said application of the petitioner. 3. Learned counsel for the petitioner submits that the learned Court below has rejected the said application of the petitioner without assigning any cogent reason. It is further submitted that the petitioner had explained sufficient reasons for the delay caused in filing the said document. However, the learned Court below has erroneously rejected the said application of the petitioner. It is further submitted that the original copy of the agreement dated 2.6.2003 was in possession of the plaintiff/respondent No. 1 and as such the petitioner filed the photocopy of the same on 31.5.2017, however, the learned Trial Court neither kept the same on record nor considered it while passing the judgment and thus even after due diligence of the petitioner, the said document could not be produced by her earlier. 4. Heard learned counsel for the petitioner and perused the relevant materials available on record. Before coming to the merit of the case, it would be appropriate to go through the provisions of Order XLI Rule 27 of CPC which read as under: "Order XLI Rule 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." 5. Order XLI Rule, 27 of CPC delineates that no additional evidence shall be permitted to be produced by either of the parties in the Appellate Court. However, three exceptional situations have been provided under which the Appellate Court may allow such evidence or document to be produced or witness to be examined. Order XLI Rule, 27 of CPC delineates that no additional evidence shall be permitted to be produced by either of the parties in the Appellate Court. However, three exceptional situations have been provided under which the Appellate Court may allow such evidence or document to be produced or witness to be examined. Sub-rule 1(a) of Rule 27 CPC permits the production of evidence at appellate stage when the Court which has passed the decree, has refused to admit evidence which ought to have been permitted. Sub-rule 1 (aa) of Rule 27 provides that if even after due diligence, the party seeking to produce additional evidence had no knowledge of the same or the same could not be produced by him at the time of passing of decree, the Appellate Court may allow for production of evidence even at the appellate stage. Sub-rule 1(b) of Rule 27 gives discretion to the Court to require any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial cause. 6. On perusal of the application dated 25.11.2019 filed by the petitioner before the learned Appellate Court seeking production of additional evidence, it appears that as per the petitioner's claim, the original copy of the agreement was under the custody of the plaintiff and though the petitioner filed a photocopy of the same on 31.5.2017, it was not taken on record by the learned Trial Court and as such the said document could not be produced at the trial stage in spite of due diligence of the petitioner. The learned Appellate Court rejected the said application of the petitioner holding inter alia that a document could have been brought on record only before settlement of the issues and if the parties intended to bring it on record after settlement of the issues, they could have done so after seeking leave of the Court. The learned Appellate Court has also observed that no such leave of the Court was taken by the petitioner for filing of such document. It has further been observed that the document, which the petitioner wanted to bring on record, was a photocopy and the same having no evidentiary value as also the petitioner failed to specify as to how she came in possession of the said document. 7. It has further been observed that the document, which the petitioner wanted to bring on record, was a photocopy and the same having no evidentiary value as also the petitioner failed to specify as to how she came in possession of the said document. 7. The Hon'ble Apex Court in the case of A. Andisamy Chettiar vs. A. Subburaj Chettiar reported in (2015) 17 SCC 713 [: 2016 (1) JLJR (SC) 256] has held as under: "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 fulfillment 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. 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 v. 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. v. Bhagwan Das, (2008) 8 SCC 511 ] this Court observed thus: (SCC pp. 515-16, para 13) "13. 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. v. 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 v. 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 v. Ibrahim Uddin, (2012) 8 SCC 148 ] 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. 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 6 pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced." (emphasis in original) 8. Thus, it is a settled law that the provisions of Order XLI Rule 27 of CPC 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. The additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. 9. The contention of the petitioner has been dealt with by the learned Appellate Court, after taking into consideration the legal principles and the said application has been rejected by a reasoned order. Moreover, her claim of filing the said document at the trial stage also did not find support from the lower Court record and as such the same was not accepted by the learned Appellate Court. Further, the petitioner wanted to produce the photocopy of the agreement dated 2.6.2003 which is a secondary evidence claiming that the original of the same was in possession of the plaintiff. In view of Section 65(a) of the Indian Evidence Act, 1872, the secondary evidence may be given of the existence, condition or contents of a document when original is shown or appears to be in the possession and power of the person against whom the document is sought to be proved or of any person out of reach of or not subject to the process of the Court or of any person legally bound to produce it and when after the notice mentioned in Section 66, such person does not produce it. 10. 10. In the present case, the petitioner has failed to show that the original Court below had given notice to the plaintiff to produce the original document and he had failed to produce the same. In view of the said fact, it is evident that the petitioner has not shown due diligence to produce the said document before the learned Trial Court. 11. In view of the aforesaid legal and factual position, I do not find any infirmity in the impugned order dated 4.12.2019 passed by the learned Court below. 12. The present writ petition being devoid of any merit is, accordingly, dismissed.