Hanuman Prasad Vs. Jugal Singh - Court Judgment

Excerpt:
civil procedure code, 1908 - section 115, order 41, rule 27--additional evidence--application of petitioner-defendant for production of additional documents rejected by first appellate court--appellate court found that appeal could be disposed of without production of additional documents and also they are not relevant for disposal of appeal--held, though application under order 41, rule 27 should have been decided at the final disposal of appeal however no interference called for in revision as the whole appeal is not before revisional court.;revision dismissed - - 5. it was argued by the learned counsel for the petitioner- defendant that the documents were not in existence at the time of filing of the appeal in the year 1997 as well as at the time of judgment and decree passed by the trial court. therefore, the learned first appellate court has committed jurisdictional error with material irregularity and illegality and if the order is allowed to remain stand, there would be a failure of justice and irreparable loss would be caused to the defendant. 4000 :before we proceed further we would like to refer to the scope of an application under order xli, rule 27, c. 2907 as follows :incidentally, the provisions of order 41, rule 27 has not been engrafted in the code so as to patch up the weak points in the case and to fill up omission in the court of appeal-it does not authorise any lacunae or gaps in evidence to be filled up. therefor, when the first appellate court did not find the necessity to allow the application, we fail to understand as to how the high court could, in exercise of its power under section 115, c.d.n. joshi, j.1. the instant revision petition has been directed against the order dated 29th march, 2001 passes by the learned additional district judge no. 2, bikaner in civil appeal decree no. 78/97, where by the application filed by the petitioner-defendant under order 41 rule 27 c.p.c. has been rejected.2. with the consent of both the parties, this revision is decided finally at this stage.3. a suit was filed by the plaintiff on the ground of reasonable and bona-fide necessity against the defendant-petitioner and it was decreed and the above mentioned appeal is pending before the learned additional district judge no. 2, bikaner.4. the application under order 41 rule 27 c.p.c. was filed before the first appellate court for allowing to produce the documents, namely, a copy of the decree and the judgment, a copy of the statements of jugal singh, a copy of the will filed by the plaintiff against one gulab devi in the suit which was decided on 15.7.1999. the learned trial court rejected the application on the ground that the documents sought to be produced have no relevance and the appeal is not to be decided on the grounds mentioned in the judgment and decree passed in the case of gulab devi. the application was also rejected on the ground that the appeal could be decided without the production of those documents. this order of the learned appellate court is under challenge.5. it was argued by the learned counsel for the petitioner- defendant that the documents were not in existence at the time of filing of the appeal in the year 1997 as well as at the time of judgment and decree passed by the trial court. it was also argued that no reasons shall be assigned by the learned appellate court and the reasons assigned are not relevant for disposal of application under order 41 rule 27 c.p.c.6. as per argument of the learned counsel for the petitioner, the so called necessity of the plaintiff-decree holder cease to exist, as another property was available to the plaintiff and necessity of the plaintiff has come to an end. in the case and the suit for eviction, the ground of necessity must exist, even at the time of passing of the decree by the first appellate court. therefore, the learned first appellate court has committed jurisdictional error with material irregularity and illegality and if the order is allowed to remain stand, there would be a failure of justice and irreparable loss would be caused to the defendant.per contra, it was argued by the learned counsel for the plaintiff-non-petitioner, that the children of the plaintiff grown up and they are residing with the plaintiff. the plaintiff has retired and his mother is also residing with him, who is unable to work. therefore, this is false to say that reasonable and bona fide necessity of the plaintiff has come to end. the judgment and decree and other documents sought to be produced by the defendant are not relevant for the purposes and the defendant cannot give direction to the plaintiff about the necessity. the documents are not necessary for disposal of appeal. the first appellate court has not committed any jurisdictional error much less the material irregularity and illegality in rejection that application of the defendant.it has been held in mahavir singh and ors. v. naresh chandra and anr. reported in 2000 air scw p. 4000 :-before we proceed further we would like to refer to the scope of an application under order xli, rule 27, c.p.c, section 107 c.p.c. enables an appellate court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under order xli, rule 27 c.p.c principle to be observed ordinarily is that the appellate court should not travel outside the record of the lower court and cannot take evidence on appeal. however, section 107(d), c.p.c. 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. the scope of order xli, rule 27, c.p.c. was examined by the privy council in kesowjilssur v. g.i.p. railway (1907)ilr 31 bom. 381 in which it was looked to for taking additional evidence and that the court has no jurisdiction to admit such evidence in cases where this rule does not apply, order xli, rule 27, c.p.c. envisages certain circumstances, when additional evidence can be adduced:(i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or(ii) 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(iii) 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 causeit has been held in n. kamalam (dead) and another v. ayyasamy and another reported in 2001 air scw p. 2907 as follows :-incidentally, the provisions of order 41, rule 27 has not been engrafted in the code so as to patch up the weak points in the case and to fill up omission in the court of appeal-it does not authorise any lacunae or gaps in 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. this court in municipal corporation of greater bombay v. lala pancham : [1965]1scr542 has been candid enough to record that the requirement of the high court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. in paragraph no. 9 of the judgment, this court observed:.......... this provision does not entitle the high court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. it does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. in other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. the high court does not say that there is any such lacuna in this case. on the other hand what it says is that certain documentary evidence on record supports 'in a large measure' the plaintiffs contention about fraud and mala fides. we shall deal with these documents presently but before that we must point out that the power under clause (b) of sub-rule (1) of rule 27 cannot be exercised for adding to the evidence already on record except upon one of the grounds specified tin the provision.this court relying upon the decisions in mohan singh v. late amar singh : air1999sc482 and bhikha ram and anr. v. shri shantilal has held in sandhu ram v. ghasi ram reported in 2001(1) wlc (raj.) p. 596 as follows :-after hearing learned counsel for the parties, it is no doubt true that in normal circumstances, the application under order 41 rule 27 ought to have been discussed and decided at the time of hearing of appeal itself and, therefore, the order of the lower appellate court to dismiss the application before hearing the appeal cannot be sustained in view of two single bench judgments of this court which fairly cover the point in favour of the revision petition.7. regarding the revisional jurisdiction to interfere in order passed under order 41 rule 27 by this court, it has been held in mahavir singh (supra) that high court could not have interfered in revision, particularly when the whole appeal is not before it.it has been held in abdul gani and another v. shahzad and others reported in 1999 aihc p. 3491 that evidence sought to be produced must be shown to be in existence. besides such evidence must be shown to be relevant and admissible.8. keeping in view the above precedents, in the present case, such application should be decided with the appeal itself and not before and in that view of the matter, the order of the lower appellate court to dismiss the application before hearing the main appeal cannot be sustained. but, in the present case, even though the trial court ought to have decided the application for additional evidence at the time of hearing of appeal and deciding it before such time may not be sustained in the eyes of law, but while exercising the revisional jurisdiction even if the order is set- aside, the same reasons as given by the lower appellate court while dismissing the present application moved under order 41 rule 27 c.p.c. cannot be lost sight of. the lower appellate court had categorically observed that this very document is not relevant and the appeal could be disposed of without taking additional evidence on record as proposed by the petitioner. the reasons are sufficient arid would have been sufficient even to dismiss the application at the time of hearing of appeal. in the opinion of the court, even if a direction is given to lower appellate court at this stage to decide the application under order 41 rule 27 c.p.c. only on the ground that it should have been decided at the time of hearing of appeal and not before, the reasons as given in the impugned order cannot be lost sight of. it would be a futile exercise to decide the lower appellate court to decide the application at the time of hearing of the case until and unless the reasons now given can be shaken in the ultimate decision of the application.9. in the present case, it is not the case of either party that the first situation stated in order 41 rule 27 c.p.c. is attracted. so far as the second circumstance as stated in order 41 rule 27 c.p.c. is concerned, the question of exercise of due diligence would not arise. in third circumstance, as stated in order 41 rule 27 c.p.c, the appellate court may require any document to be produced or any witness to be examined to enable it to pronounce judgment or, for any other substantial cause. the expression 'enable it to pronounce judgment' has been subject of several decisions including syed abdul khader v. rami reddy : [1979]2scr424 , wherein it was held that when the appellate court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. the ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of court delivering it. it is only a lacuna in the evidence that will empower the court admit additional evidence. (see the municipal corporation of greater bombay v. lala pancham : [1965]1scr542 ). but a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. the words ' or for any other substantial cause' must be read with the word 'requires' which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply as noticed by the privy council in kesowji issur v. g.i.p. railway (supra). it is under these circumstances such a power could be exercised. therefor, when the first appellate court did not find the necessity to allow the application, we fail to understand as to how the high court could, in exercise of its power under section 115, c.p.c. could have interfered with such an order, particularly when the whole appeal is not before the court. it is only in the circumstances when the appellate court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances.10. the learned appellate court in the present case, before whom the whole appeal was, has held that the appeal could be disposed without the production of the additional evidence and it is not relevant for disposal of the appeal. therefore, in view of the judgment of the hon'ble apex court in gurdev singh v. mehnga ram : air1997sc3572 , in which the scope of exercise of power under section 155, c.p.c. on an order passed in an application filed under order xli, rule 27, c.p.c. was considered. therefore, as per the judgments of the hon'ble apex court, interference by this court under section 115 c.p.c. is not called for as the whole appeal is not before this court.11. for the reasons and discussions mentioned above, even though. i hold that the application under order 41 rule 27 c.p.c. should have been decided at the final decision of the appeal i.e. along with the appeal as to adjudicate whether the document so required was necessary for the just decision of the case, but in the circumstances mentioned above, in my opinion, it would be futile to direct the lower appellate court to decide the application once again which application according to him was dismissed on very valid reasons, particularly in revisional jurisdiction.for the reasons and discussions mentioned above, the revision petition is dismissed.