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2022 DIGILAW 153 (JK)

Oriental Insurance Co. Ltd. v. Sheela Devi

2022-04-06

SINDHU SHARMA

body2022
JUDGEMENT/ORDER : CM No. 1622/2021 1. The present application has been filed by applicant/appellant under Order 41 Rule 27 of the Code of Civil Procedure for leading additional evidence. 2. The applicant submits that the claimants (respondents herein) had concealed facts regarding the names of business which were run by the deceased during his lifetime. The claimants have only mentioned that the deceased was running Banquet Halls in Purkhoo Camp, Jammu without disclosing their names. The claimants neither put forth the names of the banquet hall being run by the deceased nor mentioned the amount that the deceased was paying in addition to Rs. 10,000/- to the claimants. 3. The applicant in order to ascertain the actual facts as stated above appointed an independent private investigator to verify the facts regarding running of business by the deceased and its present status. During the investigation, it was transpired that the businesses run by the deceased were two banquet halls namely, K.D. Palace and Hari Palace at Purkhoo, Jammu are being managed and run by the brothers of the deceased. Similarly, the other business of steel fabrication of the deceased is also managed by his brothers. It is further submitted that there is no loss of income after the death of the deceased. These facts have been concealed by the claimants. 4. Learned counsel for the applicant submits that it is only after the conclusion of the arguments in the appeal, that the applicant came to know from reliable sources that the business of the deceased is still being run by his brothers. In support of their contention, deposit receipt of the booking of Banquet Hall is annexed herewith. The income tax return placed by the claimants on record shows that the business name is M/s Mahadev Trader and NSM Steel Fabrication, Akhnoor Road, Jammu and the said firm is still running. The applicant submits that no one should be allowed to make undue enrichment, therefore, they pray that this application be allowed and the applicant be permitted to place on record the additional evidence by summoning the witnesses. 5. The respondents have vehemently objected to this application stating that the same has been filed after the arguments in the appeal had been completed and the case was reserved for judgment. 5. The respondents have vehemently objected to this application stating that the same has been filed after the arguments in the appeal had been completed and the case was reserved for judgment. It is the applicant/appellant who has filed this application only after ample opportunities were provided to the applicant during trial for leading evidence. The applicant/appellant choose not to lead any evidence during trial and, as such, is precluded from leading additional evidence which was never raised or agitated by it before the Tribunal. The claimants had filed the income tax return of the deceased and had evidence to prove the income of the deceased. It is urged that now the evidence sought to be placed has no bearing on the facts of this case. The additional evidence can be allowed on the principle of Order 41 Rule 27 of the CPC. This provision reads as under: "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." 6. The appellate Court, thus, may allow such evidence and documents to be produced or the witnesses to be examined on the contention that the court against whose decree or judgment appeal is preferred has refused to admit evidence, secondly, that despite exercise of due diligence the party seeking to produce evidence could not do so at the time when decree was passed. The Appellate Court may allow such documents, enable to produce judgment for any subsequent cause to be produced or when to be examined. None of these conditions are being satisfied by the applicant. This rule is not intended to allow litigant who has been unsuccessful before the trial Court to patch up the weak points in his case or to fill up the omissions. This Rule does not authorize the addition of evidence for the purpose of removing the lacuna and filling the gaps in evidence. The evidence of the claimants was closed on 22.02.2017, thereafter ten opportunities were granted to the applicant/Insurance Company to lead its evidence. The evidence of the Insurance Company was closed on 27.04.2018. The applicant despite being granted several opportunities did not lead any evidence or produced any witness. Thus, there was no occasion for the Tribunal to refuse or admit any evidence as no evidence was adduced. The evidence is not of that nature which could not be produced despite due diligence. The matter was heard and reserved by this Court on 09.02.2021 and the application was filed on 20.02.2021. This application is filed at a belated stage as an afterthought to enable the applicant to make out a fresh case which is not permissible. 7. The applicant had an ample opportunity to adduce the evidence before the Tribunal but chose not to do so, and the claim petition was decided. Thus this application cannot be allowed to produce evidence at this belated stage, which it could produce during trial. There is no substantial cause shown for producing the evidence. 8. In United India Insurance Company Ltd. v. Sukha Devi & Ors., 1995 ACJ 796 , it has been held that: "23. We have heard the learned counsel for the parties. We are of the opinion that the insurance company had failed to produce the permit before the Tribunal during the trial of the claim petitions. It had voluntarily closed its evidence without producing the witness or the copy of the permit from the office of the Regional Transport Authority, Dehradun. The applicant cannot be permitted to lead the evidence at this belated stage especially when the company has been held liable to indemnify the insured for the payment of the compensation. The applicant remained negligent in not examining its witnesses during the trial of the claim petitions. Therefore, these applications are dismissed." 9. The applicant cannot be permitted to lead the evidence at this belated stage especially when the company has been held liable to indemnify the insured for the payment of the compensation. The applicant remained negligent in not examining its witnesses during the trial of the claim petitions. Therefore, these applications are dismissed." 9. In Union of India & Anr. v. Jagdish Pandey & Ors., (2010) 7 SCC 689 , it has been held that: "It is a well settled rule that parties are expected to raise specific pleadings before the first forum for adjudication of the dispute. Those pleadings are the basis of the case of the respective parties even before the appellate/higher Courts. The parties would be bound by such pleadings, of course, subject to the right of amendment allowed in accordance with law. In the present case, no such amendment has been carried out even before the High Court and it will be unfair for this Court to get into the controversy of factual matrix of the case at this stage of the proceedings, particularly, when there exists no justification whatsoever on record as to why even these averments were not made before the Tribunal and not even before the High Court, despite the fact that the Tribunal had specifically made comments in this regard in its judgment. Even before this Court but for bald averments no documents, data or cogent material has been placed for appropriate adjudication of the rights of the parties." 10. Similarly in 'Satish Kumar Gupta & Ors v. State of Haryana', AIR 2017 SC 1072 , it was held that: "...20. It is clear that neither the Trial Court has refused to receive the evidence nor it could be said that the evidence sought to be adduced was not available despite the exercise of due diligence nor it could be held to necessary to pronounce the judgment. Additional evidence cannot be permitted to fill-in the lacunae or to patch-up the weak points in the case. There was no ground for remand in these circumstances." 11. In view of the aforesaid discussion, there is no merit in this application and the same is dismissed, accordingly. 12. List the main appeal on 20.07.2022.