Allahabad High Court
Kailash Chandra vs Additional District Judge Sitapur on 3 July, 2013
Author: Ritu Raj Awasthi
Bench: Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?[A.F.R.] Court No. - 5 Case :- MISC. SINGLE No. - 874 of 2011 Petitioner :- Kailash Chandra Respondent :- Additional District Judge Sitapur Counsel for Petitioner :- U.S.Sahai Counsel for Respondent :- Manish Kumar,Sandeep Srivastava Hon'ble Ritu Raj Awasthi, J.
Heard Mr. U.S. Sahai, learned counsel for petitioner as well as Mr. Nipendra Mishra, learned counsel holding brief of Mr. Manish Kumar, learned counsel for opposite party no. 1 and Mr. Sandeep Srivastava, learned counsel for opposite party no. 2.
The writ petition has been filed challenging the order dated 13.1.2011 passed in Misc. Civil Appeal No. 60 of 2007 (Kailash Chandra Vs. Smt. Mohini Devi) whereby the application moved under Order XLI Rule 27 Code of Civil Procedure (for short 'the Code') for producing additional evidence has been rejected by the appellate Court.
The brief facts of the case are as under:
The petitioner claims himself to be lawful tenant of Shop No. 615/A-2, Thompsonganj Bazar, District Sitapur on the basis of inheritance from his father, late Ram Prasad who along with one Natthu Lal had taken the said shop on rent from land lady Smt. Nirmala Devi. After the death of Ram Prasad sometime in the year 1988 petitioner became joint tenant with Natthu Lal. The rent of shop was initially Rs. 8/- per month which was increased to Rs. 12/- subsequently. Natthu Lal died sometime in the year 1989-90, the shop was purchased by opposite party no. 2, the petitioner continued to be tenant of the shop. The rent of shop was increased to Rs. 50/- per month + Rs. 5/- for water tax which the petitioner said to have paid to opposite party no. 2 up to 31.1.1994. The petitioner filed a Case under Section 30 of U.P. Act No. 13 of 1972 which was allowed. Against the said order the opposite party no. 2 had filed a revision which was dismissed. The petitioner had been depositing the rent in the Court below since then and there is no default on the part of the petitioner.
The opposite party no. 2, who had purchased the house from Smt. Nirmala Devi by means of sale deed dated 19.3.1991, filed Suit No. 543 of 1999 for eviction in which it was stated that she had permitted the petitioner to stay in shop in question temporarily for three months against which the petitioner was paying Rs. 500/- per month to opposite party no. 2. It is said that the suit was filed concealing the fact of joint tenancy of Natthu Lal with Ram Prasad. In the written statement, it was specifically pleaded that petitioner had maintained a notebook which contains the signature of Natthu Lal who used to receive the rent in order to pay the same to the land lady. The said notebook is being filed as evidence. The said fact was also stated by the petitioner when he was examined as witness before the Trial Court.
Learned counsel for petitioner submitted that the aforesaid notebook was an important evidence in order to decide the controversy involved in the case and the petitioner being fully conscious had specifically pleaded about it in written statement filed before the Trial Court, however, inadvertently in spite of due diligence he could not produce the same before the Trial Court as such he had moved an application for adducing additional evidence at the stage of appeal by moving an application under Order XLI Rule 27 of the Code.
Submission is that the learned Trial Court has failed to appreciate the fact that the petitioner had specifically pleaded the aforesaid material fact in his pleadings before the Trial Court and was heavily relying on the said evidence. However, inadvertently the said evidence was not brought on record at the time of evidence before the Trial Court.
Contention of learned counsel for petitioner is that the appellate Court should have allowed the application for producing additional evidence as is permitted under law and the said evidence should have been part of the record for the purpose of adjudication of case in the right perspective.
In support of his submissions, Mr. U.S. Sahai, learned counsel for petitioner relies on the judgment of the Apex Court in the case of Vimal Chand Ghevarchan Jain and others Vs. Ramakant Eknath Jadoo; (2009) 5 Supreme Court Cases 713, particularly in paragraphs 21, 22, 23 & 24 which on reproduction read as under:
"21. It is true that the written statement was permitted to be amended. Additional evidence pursuant thereto was also permitted to be adduced. The First Appellate Court, however, had a duty to properly appreciate the evidence in the light of the pleadings of the parties. While doing so, it was required to pose unto itself the correct questions.
22. The deed of sale being a registered one and apparently containing stipulations of transfer of right, title and interest by the vendor in favour of the vendee, the onus of proof was upon the defendant to show that the said deed was, in fact, not executed or otherwise does not reflect the true nature of transaction. Evidently, with a view to avoid confrontation in regard to his signature as an attesting witness as also that of his father as vendor in the said sale deed, he did not examine himself. An adverse inference, thus, should have been drawn against him by the learned Trial Court.{[See Kamakshi Builders v. Ambedkar Educational Society & Ors. [AIR 2007 SC 2191]}.
23. The First Appellate Court, however, having regard to the amendment carried out in the written statement setting up a totally inconsistent plea from the one taken before the learned Trial Court by the respondent posed a question as to whether the respondent has discharged the burden placed on him. For the said purpose, critical analysis of the prevarication of the stand taken by the respondent from stage to stage also became relevant.
24. It is true that when a pleading is amended, it, subject to just exceptions, takes effect from the date when original one is filed. It is also true that the Appellate Court, in exercise of its discretionary jurisdiction and subject to fulfillment of the conditions laid down under Order XLI Rule 27 of the Code of Civil Procedure, may allow the parties to adduce additional evidence."
Mr. Sandeep Srivastava, learned counsel for opposite party no. 2, on the other hand, submitted that there is no infirmity or illegality in the order impugned as the application for producing additional evidence under Order XLI Rule 27 of the Code could not have been allowed at the state of appeal.
Submission is that Order XLI Rule 27 clearly carves out two exceptions under which additional evidence can be permitted to be adduced by the Court; they are (i) when the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted and (ii) when the party seeking additional evidence, establishes that in spite of 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.
Contention of learned counsel for opposite party no. 2 is that the case of petitioner does not fall in any of the exception clause as neither it is the case of petitioner that the learned Trial Court has refused to admit such evidence nor it is the case of petitioner that in spite of due diligence such evidence was not within his knowledge or could not after the exercise of due diligence be produced.
It is submitted by Mr. Sandeep Srivastava, learned counsel for opposite party no. 2 that the inadvertence on the part of petitioner to produce the said evidence at the relevant time could not be a ground to allow the application moved under Order XLI Rule 27 of the Code. In support of his submissions, he relies on the judgment of Apex Court in the case of Union of India Vs. Ibrahim Uddin and Another; [2012 (30) LCD 1635], particularly paragraphs 25, 26, 27, 28 & 29 which on reproduction read as under:
"25. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. 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, provision does not apply, when on the basis of 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. (Vide: K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553).
26. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, 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. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).
27. Under Order XLI , Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate 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. [Vide: Lala Pancham & Ors. (supra)].
28. 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. (Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101).
29. 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."
I have considered the submissions made by the parties' counsel.
It is admitted position between the parties that the evidence which the petitioner wanted to rely and for which application under Order XLI Rule 27 was moved before the appellate Court was fully in the knowledge of the petitioner at the time of pendency of the suit.
It is also admitted that the petitioner had pleaded in his pleadings before the Trial Court about the said evidence and wanted to produce it as an evidence before the Trial Court.
The short question involved in writ petition is as to whether the petitioner could have been permitted to produce such additional evidence at the stage of appeal or not.
In order to adjudicate the aforesaid question, it would be better to first examine Order XLI Rule 21 of the Code which on reproduction reads as under:
"Order XLI 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 clause"
The scrutiny of said provision indicates that the parties to appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate Court except under three circumstances; (i) when the Trial Court whose decree is under challenge in appeal has refused to admit evidence which ought to have been admitted, (ii) when the party seeking additional evidence, establishes before the appellate Court that in spite of exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him before the Trial Court and (iii) when 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 clause.
The case of petitioner at the most can be examined under exception no. (ii) as given above.
Learned counsel for petitioner has laid great stress on his argument that once he had pleaded before the Trial Court about the said evidence and the said evidence could not be produced, he should be allowed to produce the said evidence at the stage of appeal.
The scope of Order XLI Rule 27 of the Code has been examined in detail by the Apex Court in the case of Union of India Vs. Ibrahim Uddin and Another (supra) wherein the Apex Court has categorically held that in case there is inadvertence on the party of any party or there was inability to understand the legal issue involved or due to wrong advice of a pleader or negligence of a pleader or that a party did not realize 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.
It is to be observed that the appellate Court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. It is the onus on the part of the party who wants to rely on evidence to prove it at the relevant time. In case a party has failed to discharge the onus, the Court cannot in such a case permit the said party to improve his case by producing additional evidence.
In the case of Vimal Chand Ghevarchan Jain and others (supra), reliance on which has been placed by learned counsel for petitioner, the Apex Court has no doubt observed that once the written statement was permitted to be amended the additional evidence pursuant thereto was also permitted to be adduced. The first appellate Court had a duty to properly appreciate the evidence in the light of the pleadings of the parties. It is true that when a pleading is amended, it takes effect from the date when the original one is filed.
The appellate Court in exercise of its discretionary jurisdiction and subject to fulfillment of the conditions under Order XLI Rule 27 of the Code may allow the parties to adduce additional evidence. However, it does not mean that the application under Order XLI Rule 27 of the Code can be allowed in routine manner. The Court has to be satisfied while allowing such application as to whether the ingredients of Order XLI Rule 27 of the Code are fulfilled or not.
As such, even if the petitioner had mentioned in his pleadings before the Trial Court about the said evidence but the same was not produced at the stage of evidence, the same could not be allowed to be brought on record at the appellate stage by moving application under Order XLI Rule 27 of the Code.
In the given facts and circumstances of the case in hand, I am of the view that the application moved under Order XLI Rule 27 could not have been allowed by the appellate Court, as such, I do not find any infirmity or illegality in the order impugned.
The writ petition being devoid of merit is dismissed.
[Ritu Raj Awasthi, J.] Order Date :- 3.7.2013 Santosh/-