A.S. Anand and; K. Venkataswami, JJ.
1. Leave granted.
2. The parties were married on 21-4-1969 at Dehradun. Rahul, a son was born to the couple on 5-3-1974. It appears that the marriage was not sailing smoothly. The relationship between the parties became sour and went from bad to worse. Ultimately, on 26-8-1985, a petition for divorce was filed by the respondent-husband under Section 13(1)(i-a) of the Hindu Marriage Act, 1955. The petition was contested by the appellant and a written statement was filed. Thereafter, the respondent led his evidence. He appeared as his own witness and closed the evidence. The appellant led no evidence and her counsel made a statement that she did not want to lead any evidence. On the basis of the material on the record, the trial court found that the respondent had established his case that he had been treated with mental cruelty by the appellant and accordingly granted a decree of divorce. An appeal was filed against the judgment and decree of the trial court, dated 4-2-1995 by the appellant. The appeal came to be dismissed by the District Judge, Dehradun on 17-6-1995. The finding of the trial court that the appellant had treated the respondent with cruelty was confirmed. The appellant, thereafter filed a second appeal in the High Court of Allahabad. Along with the appeal, an application under Order 41 Rule 27 CPC was also filed seeking permission to lead additional evidence. It was pleaded by the appellant that her counsel had closed the evidence in the trial without any instructions from her and that as a matter of fact, she came to know about the statement of her counsel to close the evidence and about the decree of the trial court as well as the order of the first appellate court later on whereupon she filed the second appeal in the High Court. It was, under those circumstances, according to the appellant, that she prayed to the High Court for grant of her application under Order 41 Rule 27 CPC to lead additional evidence.
3. The High Court noticed that the appellant had not even examined herself at the trial though the respondent was cross-examined in the trial court at length. It was found that in the first appellate court no prayer was made by the appellant to lead additional evidence under Order 41 Rule 27 CPC and that the prayer for leading additional evidence was made for the first time only in the second appeal in the High Court. After a detailed discussion, the High Court found that the prayer to lead additional evidence under Order 41 Rule 27 CPC, in the facts and circumstances of the case, could not be granted, as the grant of that prayer “would virtually give a new lease of life to the litigation”. The prayer was consequently rejected. After appreciating the material on the record, the High Court culled out the findings of fact recorded by the two courts below, as follows:
“(1) There had been no cohabitation between the parties since December 1979.
(2) The wife did not receive the relatives of the husband with due warmth at Vienna and did not extend due hospitality to them.
(3) She did not visit the ancestral house of the husband even after the death of his mother although she had come to India.
(4) She had chosen to opt for Austrian citizenship without the knowledge of the husband.
(5) She had made allegations doubting the fidelity of the husband and had failed to prove the same.
(6) She had refused to accompany her husband to Vienna in 1983 after their annual vacation.”
4. The High Court agreed with the concurrent findings of fact recorded by both the courts below and after referring to a catena of authorities vide order dated 1-10-1996, dismissed the second appeal thereby upholding the finding that the appellant had treated the respondent with cruelty. Hence this appeal by special leave.
5. We have heard learned counsel for the parties.
6. Mr R.K. Jain, learned Senior Counsel appearing for the appellant, vehemently argued that the application filed by the appellant for leading additional evidence under Order 41 Rule 27 CPC ought to have been allowed by the High Court because the trial court was not justified in accepting the statement of the counsel for the appellant to close the evidence. We cannot agree. There is nothing on the record to show that the statement made by the learned counsel was without any authority. It appears that the application under Order 41 Rule 27 CPC was filed at the stage of the second appeal in the High Court only as an afterthought with a view to delay the proceedings. There is not a whisper in the application filed in the High Court that the counsel had no authority to close the evidence or that she did not know about the closure of the evidence or even the dismissal of the first appeal. The case was improved in a detailed affidavit filed in support of the application in which a plea was raised that the counsel had no instructions to close the evidence in the trial court, without any material to support the plea.
7. That apart, we find that in the facts and circumstances of the case, clauses (a), (aa) and (b) of Order 41 Rule 27 CPC are not attracted in the case. It is not the case of the appellant that the trial court had refused to examine her nor is it her case that any new fact had come to her knowledge which she did not know at the time of the trial, necessitating leading of additional evidence. Similarly, it is nobody's case that the High Court required the documents to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, thus clause (b) would also not be applicable. That being the position, no fault can be found with the High Court in rejecting the prayer of the appellant for leading additional evidence under Order 41 Rule 27 CPC.
8. We have already made a reference to the concurrent findings of fact recorded by the two courts, which have been accepted by the High Court also. On the basis of the material on the record, the conclusion arrived at by the High Court is unexceptionable. The High Court committed no error in confirming the decree of divorce, granted by the trial court and upheld by the first appellate court. We do not find any merit in this appeal, which is accordingly dismissed but without any order as to costs.