Judgment:
Harbans Lal, J.
1. This civil second appeal under Order 42 Rule 1 r/w Section 100 CPC is directed against the judgment and decree dated 4.4.2002 passed by the learned Addl. Distt. Judge No. 3, Ajmer in Civil Regular Appeal No. 12/02 whereby the appeal has been dismissed and the judgment and decree dated 8.12.1987 passed by the learned Munsiff (East), Ajmer city in COS No. 476/75 has been confirmed.
2. Briefly stated the relevant facts necessary for the decision of this appeal are that the plaintiff respondent filed a suit for eviction and arrears of rent against the appellant-defendant on twin grounds of default in payment of rent and subletting of suit premises without the permission and consent of the plaintiff. The appellant-defendant contested the suit by filing a written statement denying all the averments made in the plaint and further pleading that the premise let out comprised of three rooms and two 'tibaras' and not two room and two 'tibaras' as pleaded by the plaintiff. It was also pleaded that monthly rent of Rs. 85/- was inclusive of electricity and water charges. There was no default in payment of rent. The premises were sub-let with the permission and consent of the plaintiff. The trial Court framed 8 issues stemming from the pleadings of the parties, recorded their evidence and after hearing them decreed the suit on 8.12.1987 holding that the defendant had committed default in payment of rent but declined to pass decree of eviction on this ground giving him benefit of first default. The defendant was also found to have sub-let the suit premises without permission and consent of the plaintiff and the suit was decreed for eviction on this ground. The defendant preferred an appeal against the aforesaid decree.
3. During the pendency of the appeal, he filed an application under Order 41 Rule 27, Order 13 Rule 2 r/w Section 151 CPC on 21.4.1989 for taking on record additional documentary evidence. A copy of the application was got furnished to the learned counsel for the plaintiff respondent. The matter was fixed for its reply and arguments and thereafter it came to be adjourned from time to time. The reply to the application was filed on 28.7.1990 and a copy of which was got furnished to the learned counsel for the appellant-applicant. The matter was fixed for the disposal of the application, but it was adjourned from time to time. Ultimately without disposing of the said application, the appeal itself was ordered on 2.4.1992 to be listed on 2.5.1992 for hearing. The appeal was then adjourned from time to time for about 5 years. Ultimately, it was heard on 31.3.2002 and vide impugned judgment and decree dated 4.4.2002 the appeal was dismissed without any orders on the aforesaid applications. The first appellate court framed two points for determination :
(1) Whether the disputed property included one more room in the tenancy of the defendant and the rent of Rs. 85/- p.m. was inclusive of water and electricity changes;
(2) Whether the plaintiff had given permission to the defendant to sub let the rented premises.
(4). Both these points have been decided against the defendant appellant by the first appellate court giving detailed, cogent and valid reasons for its conclusion.
5. After hearing the learned counsel for the appellant exparte on the admission of this second appeal, it was admitted on 10.5.2002. The following substantial questions of law were formulated ;
1. Whether findings of the learned appellate court stand vitiated on account of non consideration of application under Order 41 Rule 27 and Order 13 Rule 2 read with Section 151 CPC whereby the appellant defendant had sought to produce on record additional evidence ?
2. Whether the findings of the learned Appellate Court are sustainable in eye of law which are in violation of established principles of law that the application under Order 41 Rule 27 CPC has to be considered at the time of final disposal of the appeal ?
3. Whether when it was pleaded in the suit that monthly rent was inclusive of electricity charges only, evidence of the plaintiff landlord that it was inclusive of water charges also could have been relief upon?
4. Whether where it was admitted by the landlord that he permitted tenant to open Nala in the suit premises, could not it be presumed that the sub-tenancy was either with the permission of the landlord or was acquicised/attorned by the landlord in favour o the Sub-tenant?
6. I have heard learned counsel for the parties and have also carefully perused the judgments of the courts below as well as the record and authorities cited at the bar.
7. Learned counsel for the appellant has first argued on the basis of cases of Ishwar Dass Jain (dead) through LRs. v. Sohan Lal (Dead) by LRs. (1), and Kulwant Kaur and Ors. v. Gurdial Singh Mann (Dead) by LRs. and Ors. (2), that there are two situations in which interference in findings of fact is permissible; first, when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion; second, where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence with which if it was omitted, an opposite conclusion was possible. He has contended that in either of these two situations, a substantial question of law would arise. There are no and cannot be two opinions about the principle of law laid down in these authorities. According to him these parameters are fully satisfied in this appeal, so as to warrant interference of this court in the second appeal.
8. Learned counsel for the appellant has then very strainuously argued that the learned court below has committed grave illegality in not deciding the application filed by the appellant and the same has vitiated the findings of the learned court below and has rendered the findings perverse and un-sustainable in law. In this regard reliance has been placed on the case of 'Uda Ram and Ors. v. Sedhya and Ors.' (3), 'Kalyan Singh v. Mazid Gatiwaly' (4), 'Smt. Jamna and Ors. v. Bhuwana' (5), 'Hanuman Mal v. Jaskaran and Ors.' (6), 'Mohan Das v. Bachan Lal' (7). He has submitted that the matter deserves to be remitted back to the first appellate court with the direction to first decide the application under Order 41 Rule 27 and Order 13 Rule 2 r/w Section 151 CPC and then to decide the appeal afresh.
9. Learned counsel for the respondent has on the other hand while supporting the concurrent findings of fact and law recorded by the learned courts below has argued that the application in question was neither pressed before the learned court below nor the application was even primafacie entertainable as the necessary grounds on which additional evidence could be allowed to be taken on record were not made out before the court below. He has also argued that the documents which are sought to be taken on record are either inadmissible into evidence or are not relevant to the decision of the appeal. The appellant has also not shown as to how these documents are in any way relevant to the issues involved in the case. He has also argued that the first two substantial questions of law as formulated in this appeal at the time of its admission pertain to non-consideration of the aforesaid application. But the application is exfacie not entertainable and has been filed and not pressed only with the oblique motive of raising the plea before this court regarding non-consideration of the application. He has also argued that substantial questions Nos. 3 and 4 as formulated by this court at the time of admission of the appeal are purely questions of fact and cannot be said to be questions of law in any way and this court cannot go into the findings of fact even if they are erroneous. In this regard reliance has been placed on the case of 'Bholaram v. Ameerchand' (8). 'Ms. Labanya Neogi (through L.Rs.) v. W.B. Engineering Co.' (9) and 'Smt. Satya Gupta @ Madhu Gupta v. Brijesh Kumar' (10).
10. I have given by anxious and thoughtful consideration to the rival submissions made at the bar.
11. It appears that the main thrust and plank of the arguments of the learned counsel for the appellant is that the learned first appellate court having failed to decide the application under Order 41 Rule 27 and Order 13 Rule 2 r/w Section 151 CPC has committed grave illegality and jurisdictional error, therefore, there is a substantial question of law involved in this case so as to warrant interference of this court in second appeal.
12. It is not in dispute and is rather an admitted fact that the appellant sub-et the rented premises. The application under Order 41 Rule 27 and Order 13 Rule 2 r/w Section 151 CPC which was filed by the appellant during the pendency of the first appeal was not decided by the learned court below. It also cannot be disputed that the said application was not pressed before the learned court below at the time of hearing of the first appeal and the attention of the court below has not drawn to the fact that no order was passed on the aforesaid application and the same was still pending, which requires to be decided along with the decision of the appeal. It would not be out of place to mention here that it has not been stated in the memo of appeal filed in this court that the aforesaid application was pressed before the court below or the attention of the court below was drawn to the factum of the aforesaid application being pending without orders. In para 4 of the memorandum of appeal, it has been stated that true and exact copy of the application dated 29.4.1989 (which appears to be inadvertently written in place of 21.4.1989) along with the documents sought to be produced on record is being submitted and is marked as Schedule 'A' which may be treated as part and parcel of the appeal, but no such true and exact copy of the application and the documents have been filed and marked as Schedule 'A' till date. It is thus apparent that this fact has been wrongly mentioned in the memorandum of appeal. The appellant does not appear to be vigilant and keen in this court as well. When the application filed by and on behalf of the appellant before the learned court below was not pressed and its attention was not drawn to the application being pending, the court below cannot be said to be solely responsible for not deciding the said application. It was also the duty of the appellant or his learned counsel to press the said application and to draw the attention of the learned court below that the application was still pending. The appellant having not done so cannot be permitted to take advantage of his own negligence.
13. It would be apposite to extract Rule 27 of Order 41 CPC here, which ,is as under :-
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 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.
14. The law of taking additional evidence on record, at a appellate stage has been reiterated by the Hon'ble Apex Court from time to time.
15. In the case of 'Arjan Singh v. Kartar Singh' (11), the provisions of Order 41 Rule 27 CPC have been considered elaborately and it has been held that the said provisions are applicable only when such inherent lacunae or defect become apparent while examining the case and not applicable where the discovery is made outside the court of fresh evidences and application has been made to import it. The truth test is to allow the application is that the court has been able to pronounce the judgment on the material available before it without taking into consideration the additional evidence sought to be produced while deciding the said case. The Hon'ble Supreme Court has placed reliance upon two judgments of Privy Council in Kessowji v. G.P.P. Railway (12), and Persottam v. Lal Mohan (13).
16. Considering the aforesaid provisions, five judges bench of the Hon'ble Supreme Court in 'K. Venkataramiah v. A. Seetharama Reddy and Ors. (14), has held as under:
'The appellate court has power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other substantial cause.' There may well be cases where even though the court finds that it is able to pronounce judgment even though the court finds that it is able to pronounce the judgment on the basis of record as it is and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner.'
17. The Hon'ble Supreme Court has held in Natha Singh and Ors. v. The Financial Commissioner, Taxation' (15), that 'unless additional evidence is necessary to pronounce the judgment, it should not be permitted to adduce as the discretion given to the appellate court to receive and admit additional evidence is not arbitrary one but it is judicial one circumscribed by the limitation specified in Order 41 Rule 27 of the Code.'
18. Reiterating the same view in 'Land Acquisition Officer v. H. Narayanaiah etc. (16), the Apex Court has further observed that for allowing the application, the appellate court must record reasons to show that it had considered the requirement of Order 41 Rule 27 of the Code so that it may be examined as to how the appellate court found the admission of such evidence to be necessary for some substantial reasons and if it finds necessary to admit it, an opportunity should be given to the other side to rebut any inference arisen by leading other evidence.
19. In Syed Abdul Khadar v. Rami Reddy and Ors. (17), the Hon'ble Apex Court after considering large number of earlier judgments held that the provisions of Order 41 Rule 27 of the Code did not confer a right on the party to adduce additional evidence but if the court hearing the appeal requires any document so as to enable it to pronounce judgment, it has jurisdiction to permit additional evidence to be adduced.
20. In 'Smt. Pramod Kumari Bhatia v. Om Prakash Bhatia and Ors.' (18), the Hon'ble Apex Court has held that there can be no justification to entertain the application under Order 41 Rule 27 CPC at a belated stage and it deserves to be rejected on this count alone.
21. In 'Shiva Jirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Ors.' (19), the Apex Court has held that if the application unnecessarily prolongs to disposal of the case and not directly connected with the immediate issue, it deserves, rejection. Party filing such an application has to establish that with the best of efforts such additional evidence could not have been adduced at the first instance. Secondly, the party affected by the admission of additional evidence should have an opportunity to rebut such additional evidence and thirdly that the additional evidence was relevant for determination of issues.
22. In 'Mahavir Singh and Ors. v. Naresh Chandra and Anr.' (20), the Apex Court considered the issue elaborately and observed as under :
'Principle to be observed ordinarily is that the appellate court should not travel outside the record of the lower Court and cannot take evidence in appeal. However, Section 107(d) CPC is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are found to exist. The court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the Court, which is, of course, to be exercised judiciously and sparingly.'
23. In 'N. Kamalam (dead) and Anr. v. Ayyasamy and Anr.' (21), the Hon'ble Supreme Court has held as under :-
'Needless to record that the courts shall have to be cautious and must always act with great circumspection in dealing with the claims for letting in additional evidence particularly, in the form of oral evidence at the appellate stage and that too, after a long lapse of time. In our view, a plain reading of Order 41 Rule 27 would depict that the rejection of the claim for production of additional evidence after a period of 10 years from the date of filing of the appeal cannot be termed to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted.'
24. In 'P. Purushottam Reddy and Anr. v. Pratap Steels Ltd. (22), the Apex Court examined where the High Court had remanded the case to the trial court to take additional evidence and decide the case afresh. The court came to the conclusion that such a view was not permissible in the facts of that case. Thus, the order of remand was setaside.
25. When the application filed before the learned court below is considered in the light of the guidelines and law laid down in the afore-mentioned authorities of the Hon'ble Apex Court, it would be evident that in the application dated 21.4.1989 it has been mentioned that the enclosed documents are quite essential for the decision of the appeal and their taking on record will assist in the disposal of the case and the same would be proper for decision. It has been further stated that these documents could not be produced earlier due to mistake and because some of them could not be traced. The documents sought to be produced are beyond doubt and their taking on record would not cause any harm to the respondent whereas the applicant would suffer irreparable harm if the same are not taken on record. It has further been stated in the application that if the court comes to the conclusion that the appellant was negligent for not producing these documents earlier, the same can be compensated by cost. This application has been made by one Suraj Karan as power of Attorney holder of the appellant defendant.
26. It its reply, it has been stated categorically that the applicant has not given any reasonable cause or reason for not producing these documents before the trial court. It has also been alleged that through this round about way, the appellant wants to get his evidence reopened which was closed.
27. A perusal of the list enclosed with the aforesaid application reveals that it is a list of 25 documents but no document his entered at Sr. No. 14 in this list and thus, only 22 documents were sought to be produced in the first appellate court. A brief analysis of this list would show that the first two of these documents are photo copies of the rent receipts dated 3.5.1972 or so, whereas the suit was filed in 1975. The third document is seizure memo prepared on 21.10.1975 by the SHO P.S. Kotwali vide which the sale-deed dated 3.10.1975, the letter dated 3.10.1975, electricity bill of Vishnu Iron and Steel Factory and receipt of rent dated 12.12.1972 and electricity bill dated 3.11.1973 were seized in connection with the investigation of a criminal case being FIR No. 407/75 under Section 448 IPC P.S. Kotwali, Ajmer. 4th document is an application under Order 21 Rule 11 CPC for execution of the order dated 15.3.1982 passed by the Sub-Divisional Magistrate, Ajmer in a case for restoration of the amenities of electricity and water 5th document is a letter issued by the Munsiff cum Judicial Magistrate, Ajmer city (East), Ajmer to be S.P. Ajmer for providing police help. 6th document is a photo-copy of the order dated 15.3.2002 passed by the SDO, Ajmer. 7th document is a certified copy of the memo prepared to land over the possession of the factory, 8th document is a certified copy of the statement of Madan Lal Sub-Inspector in Criminal Case No. 2349/76, 9th document is a photo-copy of the Tehrir dated 7.8.1982 issued to the Special Nazir, 10th document is another letter dated 30.7.2003 issued to the Special Nazir. 11th document is the certified copy of the sale-deed dated 3.10.1975, 12th document is copy of form No. 1 pertaining to the assessment of tax on annual value of buildings and lands for the year 1960-61, 13th document is a carbon copy of the seizure memo dated 17.10.1975, 14th document is a copy of the notice dated 4.6.1983, 15th document is copy of the statement of Madan Lal recorded under Section 161 Cr.P.C., 16th document is copy of order dated 7.7.1983, 17th document is copy of the judgment dated 13.5.1977 in criminal case, 18th document is a copy of the order dated 6.8.1986, 19th document is a copy of the application under Section 12 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, 20th document is a copy of the application under Section 151 CPC dated 28,7.1983, 21st document is a copy of the house tax diary 1974-75, 22nd document is a copy of the registration certificate issued in the name of Bohra & Company by the office of the Assistant Director of Industries.
28. I have gone through all these documents. None of these documents is even remotely relevant to the controversy involved in the case. This apart most of these documents are either photo- copies, carbon copies for the copies of the relevant documents which are not admissible into evidence. These documents pertain to criminal litigation and the application under Section 12 of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 for restoration of basic amenities of electricity and water and these documents do not throw any useful light on the controversy involved in the appeal which was pending before the court below and now pending in this court. Therefore, the learned court below in not deciding the application has not committed any grave illegality or jurisdictional error as has been tried to be canvassed before me and no case what so-ever is made out for remand on this court.
29. No doubt, it has been held in 1992(1) WLC 416 (23), 2000 DNJ 586 (24), 1997(2) RLW (Raj.) 796 (25), 2001 DNJ 716 (26) and 2000 WLC (UC) 228 (27), that non-consideration and decision of the application under Order 41 Rule 27 CPC amounts to jurisdictional error and gives rise to a substantial question of law, but these authorities being distinguishable on facts are of no avail to the appellant in the present case where his application is on the face of it devoid of any merit and substance as none of the conditions mentioned therein are made out. The general rule is that the parties to an appeal shall not be entitled to adduce additional evidence whether oral or documentary in an appellate court and appellant has not been able to show that the court from whose decree appeal was preferred before the learned court below had refused to admit evidence which ought to have been admitted or the appellant who is seeking to adduce additional evidence has been able to establish that notwithstanding the exercise of due diligence such evidence was not within the knowledge or could not after the exercise of are diligence be produced by him at the time when the decree appealed against was passed and no case is made out that the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce its judgment or for any other substantial cause. Thus, the exception provided under Section 107(1)(d) CPC has not been made out in the instant case and, therefore, this contention of the learned counsel for the appellant having no force and merit deserves to be disallowed.
30. Thus, neither findings of the learned court below stand vitiated on account of non-consideration and non-decision of the aforesaid application nor the concurrent findings of the learned courts below are assailable on that score. Both the first two so called substantial questions of law as formulated by the court have absolutely no merit and substance in view of the fore-going discussion and deserve to be decided against appellant. Other two so called substantial questions of law being Nos. 3 and 4 are apparently questions of fact and not questions of law and, therefore, concurrent findings with regard thereto cannot be gone into in second appeal even if they are erroneous.
31. In this view of the matter, therefore, this appeal having absolutely no merit and substance deserves to be dismissed and is hereby dismissed with costs.