PC :
1. The Appeal, in which the Chamber Summons has been taken out, arises from a decision of a learned Single Judge dated 15 December 2010 dismissing a Miscellaneous Petition seeking : (i) revocation or annulment of an order dated 20 November 2003 authorizing and permitting the Respondent to continue as an Administrator of the estate of E.F.Dinshaw; and (ii) the appointment of a fit and proper person as an Administrator. The appeal has been admitted and is placed on board for hearing and final disposal. The Chamber Summons has been taken out under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 (`the Code') for allowing the Appellant to produce additional evidence consisting of fifteen documents of which a list has been appended as a schedule to the Chamber Summons.
2. When the Chamber Summons came up for hearing on 1 August 2012, this Court noted in its order that save and except for a bald averment in paragraphs 13 and 15 of the affidavit-in-support to the effect that the Appellant had come in possession of "certain crucial information" subsequent to the dismissal of the Miscellaneous Petition, no basis had been indicated to establish [as required by Order XLI, Rule 27(1)(aa)] that notwithstanding the exercise of due diligence, such evidence was not within the knowledge of the Appellant and/or could not after the exercise of due diligence be produced by it at the time when the decree appealed against was passed. The Court, inter alia, observed as follows:
"... ... In paragraph 13 of the Affidavit-in-support of the Chamber Summons it has been stated that the Appellant became aware of "certain crucial information" after the dismissal of Misc. Petition No.70 of 2010 and thereafter came into possession of the documents listed in the Schedule. In paragraph 25 of the Affidavit-in-support there is a bald averment corresponding to the provisions of clause (aa) of sub-rule (1) of Rule 27 of Order 41. Order 41 Rule 27(1) (aa) allows the Appellate Court to permit the production of evidence or a document where the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge and/or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. The statutory requirement that has been set out in clause (aa) has to be established to the satisfaction of the Court. A mere recital of the provision would not amount to establishment of facts. ... ..."
However, this Court was of the view that the ends of justice would be subserved if an opportunity were granted to the Appellant to file a further affidavit. The Court observed as follows:
"... ... in order to furnish an opportunity to the Appellant to substantiate the case within the meaning of Order 41 Rule 21(1)(aa) we are of the view that the ends of justice would be met if an opportunity is granted to the Appellant to file a further Affidavit in support of the Chamber Summons, establishing the basis on which it has been stated that notwithstanding the exercise of due diligence, the evidence now sought to be produced was not within the knowledge of the Appellant or could not, after the exercise of due diligence be produced by him at the time when the order of the learned Single Judge was passed. We also note the contention of the Counsel appearing on behalf of the Appellant that the Appellant would independently also seek to bring the case within the purview of clause (b) of sub-rule (1) of Rule 27 of Order 41. The Respondent contends to the contrary. We keep all the rights and contentions open at this stage and simply adjourn the hearing of these proceedings with a view to furnish an opportunity to the Appellant to substantiate its case by filing a better Affidavit. ... ..."
Following the order of this court, a further affidavit has been filed by the Appellant on 22 August 2002. The Respondent has filed a reply while the Appellant has filed a rejoinder.
3. Before we deal with the Chamber Summons, it will be necessary to revisit some of the basic principles that govern the exercise of the jurisdiction under Order XLI, Rule 27 of the Code. Order XLI, Rule 27 of the Code provides as follows:
"ORDER-XLI : Â Â Â Â Â Â Â Â Â APPEALS FROM ORIGINAL DECREES :
Rule 27 : Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
Section 107 of the Code empowers the Appellate Court to take additional evidence or to require such evidence to be taken, subject to the conditions and limitations as may be provided. Order XLI, Rule 27 provides these conditions and limitations.
4. The general principle which Order XLI, Rule 27 of the Code enunciates is that parties to an appeal shall not be entitled to produce additional evidence, oral or documentary. However, the provision carves out an exception in Clauses-(a), (aa) and (b) in specified situations where the Appellate Court may allow such evidence or documents to be produced or a witness to be examined. The Appellant, in other words, has no right to insist upon additional evidence being produced at the stage of appeal. The discretion which is conferred upon the court has to be exercised in consonance with the parameters which have been enunciated in the statute. Hence, it is only where a clear case is established within an exception carved out to the general rule, that an application for production of additional evidence at the appellate stage can be allowed. Clause(a) which consists of the first exception to the Rule is where a Court whose decree is appealed has refused to admit evidence which ought to have been admitted. That, admittedly is not involved in these proceedings. The second exception is contained in Clause(aa) which was brought on the statute by the Amending Act of 1976. Under Clause(aa), a party seeking to produce additional evidence has to establish that:
(i) notwithstanding the exercise of the due diligence, such evidence was not within his knowledge; or (ii) after the exercise of due diligence, the additional evidence could not be produced by him at the time when the decree appealed against was passed. The first part of Clause(aa) is based on the absence of knowledge despite the exercise of due diligence. The second part of Clause(aa) deals with nonproduction of additional evidence before the Trial Court despite the exercise of due diligence. The exercise of due diligence is the common element underlying both the parts of clause (aa). Litigating parties must exercise due diligence when they pursue their remedies at trial. If a party has not been diligent in producing evidence at the trial, its indolence cannot be overcome by producing evidence in appeal. The requirement of the existence of diligence is a carefully engrafted condition which attaches to the exception carved out by clause (aa). Clause(b) is the third exception which confers upon the Appellate Court the power to require a document to be produced or any witness to be examined to enable it to pronounce a judgment or for any other substantial cause. The power which is conferred by Clause(b) is one which is vested in the Appellate Court where the Court requires a document to be produced or a witness to be examined to enable it to pronounce its judgment. The Appellate Court may also allow an application for additional evidence for any other substantial cause.
5. The interpretation of the provisions of Order XLI, Rule 27 of the Code is not res-integra. In State of U.P. Vs. Manbodhan D. Srivastava (AIR-1957-SC-912), the Supreme Court observed as follows:
" ... ... It is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps. Of course, the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the parties. ... ..."
These principles were reiterated by a Constitution Bench of the Supreme Court in K.VenkataramiahVs. A.Seetharama Reddy and others (AIR-1963-SC-1526), where the Court held as follows:
"10. Section 107 of the Code of Civil Procedure empowers the appellate court "to take additional evidence or to require such evidence to be taken", "subject to such conditions and limitations as may be prescribed." Rule 27 of O.41 of the Code of Civil Procedure prescribes the conditions and limitations in the matter. The rule first lays down that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. It then proceeds to lay down two classes of cases where the appellate court may allow additional evidence to be produced. One class is where the Court appealed from has refused to admit evidence which ought to have been admitted. The other class is where the appellate court requires such additional evidence for itself â either to enable it to pronounce judgment or for any other substantial cause. The second class of the rule requires that when additional evidence is allowed to be produced by an appellate Court the Court shall record the reason for its admission."
6. The Supreme Court, while dealing with the expression `substantial cause' within the meaning of Clause-(b) of Rule 27 of Order XLI, noted that there may be a case where even though the Court finds that the Court is able to pronounce its judgment and it cannot strictly say that it requires additional evidence "to enable it to pronounce the judgment", it still considers that in the interest of justice something which remains obscure should be filed up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under Rule 27(1)(b) of the Code.
7. The subject has been revisited and summarized in a recent judgment of the Supreme Court in Union of India Vs. Ibrahim Uddin and another (2012)8-SCC-148). The Supreme Court has emphasized that as a matter of general principle, an Appellate Court should not travel outside the record of the Lower Court and take evidence in appeal. However, order XLI, Rule 27 "enables the Appellate Court to take additional evidence in exceptional circumstances". In that context, the Supreme Court held as follows:
"36. The Appellate Court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself."
The Supreme Court has emphasized that where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. Allowing a party to produce evidence at the appellate stage is clearly an exception and as the Supreme Court held:
"39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal.
40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal."
8. Now, it is in this background of the law that it will be necessary to consider the Chamber Summons for producing additional evidence under Order XLI, Rule 27 of the Code. As we noted earlier, in the affidavit-in-support of the Chamber Summons as originally filed, there was only a bald averment to the effect that it was after the dismissal of the Miscellaneous Petition that the Appellant had become aware of crucial information and had come into possession of several documents. Clearly what is stated in the affidavit-in-support would not justify recourse to the power of the court under Order XLI, Rule 27 of the Code. Section 107(1)(d) of the Code empowers the Court, subject to such conditions and limitations as may be prescribed, to take additional evidence or to require such evidence to be taken. Under Clause(aa) of Rule 27(1) of Order XLI of the Code, a party seeking to produce additional evidence has to `establish' and that would mean establish to the satisfaction of the Court that the conditions prescribed therein, warranting the exercise of the exceptional power of the Court, have been established. A mere recitation of the language used in the statute does not constitute establishing of the conditions for the exercise of the power. The Court would in the circumstances have been justified in rejecting the Chamber Summons at the threshold. However, in the considered exercise of our discretion, we had granted an additional opportunity to the Appellant to substantiate its case. The order of this Court allowed the Appellant an opportunity to file a further affidavit establishing the basis on which it has been stated, that notwithstanding the exercise of due diligence, the evidence now sought to be produced was not within the knowledge of the Appellant or could not, after the exercise of due diligence, be produced by it at the time when the order of the learned Single Judge was passed. Whether the conditions prescribed in Order XLI, Rule 27(1)(aa) of the Court have been fulfilled is what now needs to be considered.
9. Briefly stated, the background of the case is that E.F.Dinshaw, a Parsi, U.S. citizen, died in New York on 14 March 1970 leaving behind a will dated 4 February 1970. Under the will, he conferred a life estate in favour of his sister Bachoobai Woronzow. Upon her death, the properties were to stand bequeathed to two U.S.based charities. Bachoobai was named as an executrix under the will. A provision was made for the appointment of an executor, should she predecease the testator, fail to qualify or if she were to cease to act for any reason. On 2 April 1970, probate was granted by a Court in the County of New York favouring Bachoobai. Bachoobai executed a Power of Attorney on 16 June 1970 in favour of J.B.Dubash, who, in turn, filed a testamentary petition before this Court for the grant of Letters of Administration for the use and benefit of Bachoobai until she obtained probate of the will. Letters of Administration were granted on 12 November 1971. On 1 December 1972, a Power of Attorney was executed by Bachoobai in favour of the Respondent. On 20 December 1972, a Miscellaneous Petition was filed before this Court to appoint the Respondent as an administrator of the estate of the testator in India in place and in stead of J.B.Dubash. The petition was allowed by this Court by an order dated 21 December 1972. On 2 January 1995, a development agreement was entered into between the Appellant and the Respondent in his capacity as an administrator of the estate of the deceased testator in pursuance of which an irrevocable power of attorney was executed by the Respondent. The development agreement contemplated a sharing of the gross realizations from the development of the properties between the Appellant and the Respondent in the ratio of 88:12 with a minimum guaranteed payment of Rs.75 crores. In December 2000, an Originating Summons was taken out before this Court to challenge the validity of the bequest in favour of the U.S. based charities. On 26 September 2001 Bachoobai conferred her right, title and interest in the corpus of the estate of the deceased testator in India upon the Respondent for consideration. Bachoobai is alleged to have executed a will on 17 October 2001. A learned Single Judge of this Court held on 22 October 2001 that the bequest of the immovable property in India of the deceased testator in favour of the U.S. based charities failed and/or was invalid. An appeal was filed before the Division Bench by the U.S. based charities.The appeal was withdrawn on 29 July 2003. On 1 August 2003, a memorandum of settlement was entered into between the parties to the appeal. In November 2003, the Respondent filed a Miscellaneous Petition before this Court for permission to him to continue to act as an administrator of the estate of the deceased testator in India. On 20 November 2003, a Judge's Order was passed in the Miscellaneous Petition allowing the Respondent to act as an administrator of the estate of the deceased testator. On 13 May 2008, the respondent instituted a suit against the Appellant on the Original Side of this Court for a declaration that the development agreement dated 2 January 1995 stood determined with effect from 12 May 2008 for other reliefs. On 14 June 2010, the Appellant filed a Miscellaneous Petition praying for revocation of the order of this Court dated 20 November 2003 authorizing and permitting the Respondent to continue as an Administrator of the estate of the deceased and for appointment of a fit and proper person as an administrator. The Miscellaneous Petition was dismissed by the learned Single Judge by a judgment and order dated 15 December 2010. At this stage, it would not be appropriate for this Court to opine on the merits of the judgment since that is a matter of the pending appeal. It may only be noted that the learned Single Judge has come to the conclusion that the Miscellaneous Petition for revocation was a counter blast to the suit instituted by the Respondent against the Appellant in this Court.
10. With this brief background it would now be necessary to consider as to whether the Appellant has established a case within the meaning of Rule 27(1)(aa) of Order XLI of the Code. Each of the documents would have to be considered separately:
(i) Serial no.1 of the Schedule consists of an alleged writing addressed by Bachoobai to the Respondent on 12 July 1994. The Appellant has stated in its further affidavit that the said writing is a copy of Exhibit-7 and Exhibit-1 respectively to the Written Statement and to the Counter Claim both dated 31 January 2011 of Ivory Properties and Hotels Pvt.Ltd. in Suit No.414 of 2008, being a suit filed by the Respondent against Ivory Properties and Hotels Pvt.Ltd. and others in this Court and extracted therefrom. The Appellant has stated that the said written statement and Counter Claim are of a date subsequent to the Order of the Single Judge dated 15 December 2010 and could not be produced at the time of the said order dated 15 December 2010. It is also submitted that a copy of the writing dated 12 July 1994 addressed by Bachoobai to the Respondent is a part of the Court proceedings in which the Respondent is a party.
Now it must be noted that the Appellant has, despite an opportunity that was granted by this Court, failed to satisfactorily establish that the aforesaid document was notwithstanding the exercise of due diligence, not within its knowledge or that it could not, after the exercise of due diligence, be produced by it at the time when the decree appealed against was passed. There is an omission to make any reference to the exercise of due diligence with respect to the production of this document. Nor does the Appellant establish that despite the exercise of due diligence, this document was not within its knowledge when the order of the Single Judge was passed. The failure to so establish, despite the earlier order dated 1 August 2012, is significant. Learned Senior Counsel appearing on behalf of the Appellant refers to the averments contained in paragraphs 2 and 3 of the further affidavit of the Appellant dated 22 August 2012. Both these averments, however, merely refer to the earlier affidavit dated 2 June 2011 and to the order of this court dated 1 August 2012. Clearly, in our view, the Appellant has failed to establish that the conditions which are prescribed in the exception carved out in Clause-(aa) have been fulfilled. That apart, it would be also necessary to note that in the reply filed by the Respondent, reliance has been placed on the provisions contained in Clause-6 of the development agreement dated 2 January 1995 under which the Respondent as an owner agreed to furnish to the Appellant a writing signed by Bachoobai furnishing her concurrence to the development of the property. Moreover, in paragraph 7.3 of the reply, the Respondent has stated that a copy of the writing dated 12 July 1994 was in fact handed over to Mr.G.L.Raheja and his Advocate. Though Mr.G.L.Raheja has deposed to other affidavits in the Miscellaneous Petition, he has not chosen to controvert the specific averment in the affidavit-in-reply filed by the Respondent.
(ii) Serial no.2 of the Schedule is a copy of a letter dated 24 October 2003 addressed by the Respondent to Radhakrishna Properties Pvt.Ltd. As in the case of the document at sr.no.1, the Appellant has failed to establish that the aforesaid document was not within its knowledge, notwithstanding the exercise of due diligence or that it could not after the exercise of due diligence be produced when the decree appealed against was passed.
(iii) As regards item no.3 of the Schedule, the learned Senior Counsel appearing for the Appellant stated that the Appellant does not press the Chamber Summons with respect to this item, since it forms part of the compilation produced on the record of the learned Single Judge.
(iv) Serial no.4 of the Schedule is an alleged writing dated 10 February 2011 executed by Ms.Denise Florez in Spanish. Now, in order to consider the case of the Appellant, it would be necessary to extract from the further affidavit filed by the Appellant, which states thus:
"8. ... ... I say that Respondent in his affidavit dated 10 August 2010 in the said Miscellaneous Petition No.70 of 2010 had made a vague reference to some settlement between the Respondent and the U.S. Charities viz. the Salvation Army, New York and the Society for Prevention of Cruelty to Animals, New York. I say that the Respondent had thereafter in his affidavit dated 13 September 2010 in the said Miscellaneous Petition No.70 of 2010 annexed a copy of the Memorandum of Settlement dated 1 August 2003 purported to have been entered into between the Respondent, Ms.Bachoobai Woronzow and the two U.S. Charities. ... ...
Accordingly, given the suspicious nature of the Memorandum of Settlement, the Appellant initiated steps to unravel the truth behind the Indenture dated 26 September 2001 and the said Memorandum of Settlement to the extent possible by it. The Appellant therefore deputed its representative/attorney to see if it was possible to make a present day link to Ms.Bachoobai Woronzow's close one's family. The documents listed at Items 4, 7 and 9, 12 and 15 of the Schedule to the above Chamber Summons have only become available after this exercise."
On behalf of the Respondent it is submitted that since the alleged writing dated 10 February 2011 was not in existence on 15 December 2010 when the order of the learned Single Judge appealed against was passed, such a document would not fall within the purview of Order XLI, Rule 27(1)(aa) of the Code. Having considered this objection of the Respondent, we are unable to subscribe to the submission. As we have noted earlier, Clause(aa) of Rule 27(1) is in two parts. The first part applies where it is established that notwithstanding the exercise of due diligence, the evidence was not within the knowledge of the party seeking to produce it. The second part envisages a situation where the additional evidence could not after the exercise of due diligence be produced wien the decree appealed against was passed. That additional evidence inviting the Court's attention to a subsequent event can be produced under Order XLI, Rule 27 of the Code was enunciated in a judgment of the Supreme Court in M.M.QuasimVs. Manohar Lal Sharma and Others (AIR-1981-SC-1113). We are not inclined to circumscribe, by a process of judicial interpretation, the ambit of Rule 27(1)(aa) as suggested by the counsel for the Respondent. The judgment of a Division Bench of this Court in Cimmunidadeof Murda Vs. Additional Deputy Collector and Land Acquisition Officer (1997-BLR-646)is clearly distinguishable. In that case, in an appeal arising from a decision of the District Court in a land acquisition reference, the Appellant filed an application under Order XLI, Rule 27(1)(b) seeking to produce two awards passed by the Court subsequent to the date of the award which was in issue in appeal. It was in view of this factual background that the judgment of the Division Bench held that the document sought to be produced at the appellate stage must be in existence during the pendency of the suit or at least at the time of the passing of the decree unless the document which came into being subsequently affects the subject matter of the suit itself. We are unable to accept the submission of the Respondent that there is an absolute bar on the production of evidence which was not in existence on the date on which the decree appealed against was passed.
However, we have come to the conclusion quite independent of this that the Appellant has failed to establish a case for the production of the document at serial no.4 within the meaning of Order XLI, Rule 27(1)(aa). The case of the Appellant is, to say the least entirely vague. The Appellant seeks to assert before the Court that in view of the `suspicious nature' of the memorandum of settlement, it initiated steps to unravel the truth behind the indenture of settlement dated 21 September 2001 and that its representative contacted a close friend of Bachoobai on 10 February 2011. This, in our view, does not amount to establishing the exercise of due diligence. The Appellant has evidently gone about trying to collect evidence after the judgment of the learned Single Judge dated 15 December 2010. An Appellant cannot seek to explain its own failure to produce certain evidence before the Trial Court by stating that it was after the judgment in trial that it made an effort to and obtained additional evidence. To allow production of such evidence in appeal would be to permit the Appellant to fill up a lacuna. Parties have been in serious contest in the Miscellaneous Petition for revocation and in the suit of the Respondent. The Appellant has failed to establish that it had been diligent. As in the case of the other documents adverted to earlier, the affidavit filed by the Appellant is vague and lacks in particulars in regard to the due diligence, if any, that was exercised by the Appellant during pendency of the proceedings before the learned Single Judge when the Miscellaneous Petition was pending.
(v) Serial no.5 of the Schedule purports to be an English translation of the writing dated 10 February 2011 and must consequently stand excluded for the reasons indicated by the Court earlier, in the case of Serial no.4.
(vi) Items 6 and 11 of the schedule can be taken up together. Item-6 is a copy of an affidavit dated 31 December 2003 of Audrey C. Mody in T. and I.J. Petition No.88 of 2004. Item-11 is a certified copy of the probate proceedings in relation to the will and testament dated 17 October 2001 of Bachoobai (T. and I.J.Petition No.88 of 2004). We are inclined to allow the production of Items 6 and 11. As regards these two items, the Appellant has stated that it had by its Advocate's letters dated 15 October 2010, 2 November 2010 and 23 November 2010 called upon the Respondent through his Advocates to furnish copies of the aforesaid proceedings in their entirety. Since the Respondent failed to do so, the Appellant has stated that it had applied to this Court for certified copies of the probate proceedings on 10 December 2010. It has been stated that the certified copy of the probate proceedings was available on 25 March 2011 after the order of the learned Single Judge dated 15 December 2010 and could not be produced at the time of the order. In our view, the Appellant will be entitled to produce documents at Items 6 and 11 having regard to the provisions of Order XLI, Rule 27(1)(aa) of the Code.
(vii) Serial no.7 of the schedule is a copy of the alleged will and testament dated 4 February 1992 of Bachoobai. The Appellant has averred that it was not aware of the will dated 4 February 1992 until a meeting in February 2011 between the representative of the Appellant with a close associate of Bachoobai in New York. As in the case of the writing dated 10 February 2011 (Serial no.4), we are of the view that the Appellant in this case as well has failed to explain what steps were pursued with due diligence by the Appellant during the pendency of the proceedings before the learned Single Judge. Absolutely no averments are contained in the further affidavit to establish facts on the basis of which a case within the meaning of Order XLI, Rule 27(1)(aa) of the Code can be said to be established.
(viii) Serial no.8 of the Schedule consists of a copy of the probate proceedings in the U.S. Court in relation to the will and testament dated 11 December 2001 of Bachoobai. The objection of the Respondent at the hearing is that the Appellant is deliberately not producing a certified copy. As regards this item, learned counsel appearing on behalf of the Appellant states that the Chamber Summons is not pressed at this stage in relation to the aforesaid document but liberty may be reserved to the Appellant to take out a fresh Chamber Summons upon the Appellant producing a duly certified copy of the probate proceedings. This request is not opposed. The Chamber Summons is hence not pressed at this stage in respect of Serial no.8. Liberty is reserved as prayed keeping all the rights and contentions of both parties open.
(ix) Serial no.9 of the Schedule is a copy of Bachoobai's declaration dated 11 December 2001 regarding health care decisions and health care proxy. The items at sr.nos.12 to 15 pertain to the medical records of Bachoobai. As regards these documents, the Appellant has failed to explain what if any steps were pursued by the Appellant with due diligence, prior to the passing of the judgment appealed against. In the absence of an explanation of the steps, if any, initiated and pursued with due diligence prior to the order of the learned Single Judge, production cannot be allowed.
11. Before concluding, it is necessary for the Court to record that the Chamber Summons has been dealt with on the basis of the provisions of Order XLI, Rule 27(1)(aa) of the Code. The issue as to whether the Court would require the production of any of the documents with reference to the provisions of Clause(b) of Rule 27(1) of Order XLI of the Code is kept open to be decided by the Court during the course of the hearing of the appeal.
12. In the circumstances, production of the documents at Serial Nos.1,2,4,5,7,9 and 12 to 15 cannot be allowed at the appellate stage. The Chamber Summons is made absolute in relation to the documents set out at Serial nos. 6 and 11 of the Schedule. The Chamber Summons has not been pressed in relation to the documents at Serial Nos.3 and 8. As regards Serial No.8, liberty is granted as prayed, to the Appellant to take out a fresh Chamber Summons on the basis of a certified copy of the proceedings of the Probate Court in the U.S; keeping all the rights and contentions of the parties open. However, on the request of both the learned counsel, it is clarified that the issue of relevance and admissibility is kept open to be decided at the appropriate stage.
13. As regards those documents in respect of which the Chamber Summons is allowed, the Respondent would be at liberty to file an affidavit dealing with the documents of which production has been allowed within a period of three weeks from today. The Chamber Summons is accordingly disposed of.