Himachal Pradesh High Court
M/S Jagdish Fruit Garden vs M/S Sharwan Kumar Yatin Kumar on 20 December, 2022
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO No. 170 of 2019 .
Reserved on: 16.12.2022
Decided on: 20.12.2022
M/s Jagdish Fruit Garden ...Appellant
Versus
M/s Sharwan Kumar Yatin Kumar ...Respondents
Coram:
Whether approved for reporting? 1
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Yes.
For the Appellant : Mr. Neeraj Gupta, Sr. Advocate with Mr. Ajeet Jaswal, Advocate.
For the Respondent :Ms. Poonam Gehlot, Advocate.
Tarlok Singh Chauhan, Judge Plaintiff is the appellant, who aggrieved by the judgment passed by the learned District Judge, Kullu, District Kullu in Civil Appeal No. 8 of 2018 (CIS CNR No. HPKU 01-001408- 2018) CIS Case No. (Reg. No.) 8/2018 (21/2018) whereby he set aside the judgment and decree dated 30.12.2017 passed by the learned Civil Judge, Manali, District Kullu in Civil Suit No. 87 of 2013, has filed the instant appeal.
2. The plaintiff had filed a suit for recovery, which after a proper trial was decreed by the learned Trial Court. However, 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 21/12/2022 20:32:51 :::CIS 2 the appeal filed against the same has been allowed by allowing the application filed by the defendant/respondent to adduce .
additional evidence.
3. It is vehemently contended by Shri Neeraj Gupta, learned Senior Counsel, that the judgment passed by the learned first Appellate Court is palpably wrong and, therefore, not sustainable in the eyes of law, given the fact that the defendant was granted as many as seven opportunities to lead its evidence and even then it chose to examine only the proprietor of the firm Shri Sharwan Kumar. Earlier to that the defendant had already been granted as many as seven opportunities on 30.07.2016, 24.09.2016, 22.11.2016, 21.01.2017, 22.04.2017 and 24.06.2017 and thus there was no denial of justice or prejudice being caused to the defendant.
I have heard learned counsel for the parties and have gone through the material placed on record.
4. It would be apposite to quote Order 41 Rule 27 of the CPC, which reads as under:-
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 --
::: Downloaded on - 21/12/2022 20:32:51 :::CIS 3(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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
5. At the outset, it needs to be observed that Order 41 Rule 27 of the Code of Civil Procedure (CPC) gives discretion to the appellate Court under this provision to receive and admit additional evidence is not arbitrary one but is a judicial one circumscribed by the limitations specified in that rule. If the additional evidence is allowed to be adduced contrary to the principles governing reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on record will have to be ignored.
::: Downloaded on - 21/12/2022 20:32:51 :::CIS 46. Equally settled is the proposition that the additional evidence should not be permitted at the appellate stage simply .
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. This provision does not entitle the appellate Court to lead fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing the lacunae in the evidence that the appellate Court is empowered to admit additional evidence and not for removing the lacunae in the case of the parties.
7. The Hon'ble Supreme Court in Arjan Singh v.
Kartar Singh, AIR 1951 SC 193 has observed that Order 41 Rule 27 of CPC gives discretion to the appellate Court but the discretion given to the appellate Court under this provision to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in that rule. If the additional evidence is allowed to be adduced contrary to the principles governing reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on record will have to be ignored and the case has to be decided as if such evidence is not existing.
::: Downloaded on - 21/12/2022 20:32:51 :::CIS 58. In the case of STATE OF U.P. V. MANBODHAN LAL AIR 1957 SC 9012 the Hon'ble Supreme Court has laid down .
that 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 between the parties.
r to evidence to be adduced in order to enable it to do justice
9. Again in the MUNICIPAL CORPORATION OF GREATER BOMBAY V. LALA PANCHAM AND OTHERS, AIR 1965 SC 1008, the Hon'ble Supreme Court held that under Order 41 Rule 27 of 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. This provision does not entitle the appellate Court to let him fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing the lacunae in the evidence that the appellate ::: Downloaded on - 21/12/2022 20:32:51 :::CIS 6 Court is empowered to admit additional evidence and not for removing the lacunae in the case of the parties.
.
10. From the above and other catena of decisions on Order 41 Rule 27 of CPC it can be said that at the appellate stage additional evidence can be entertained by the appellate Court if there is some lacunae in evidence on record which requires clarification by additional evidence, may be oral or documentary evidence and rsuch additional evidence is necessary for pronouncing effective judgment by the appellate Court and that it is not the right of, may be of the appellant or of the respondent to tender as of right additional evidence oral as well as documentary in appeal so as to fill in the lacunae in its case.
Lacunae in the case of party can not be permitted to be removed by the appellate Court by accepting additional evidence. On the other hand, if there is some lacunae in the evidence already on the record which requires clarification in that event, certainly the appellate Court can accept additional evidence.
11. In the case of Union Of India vs Ibrahim Uddin, (2010) 8 SCC 148, (Paras-36 to 41), Hon'ble Supreme Court reiterated the principles of Order XLI Rule 27, C.P.C. laid down by it in its earlier decisions in the case of K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526; The ::: Downloaded on - 21/12/2022 20:32:51 :::CIS 7 Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008; Soonda Ram & Anr. v.
.
Rameshwaralal & Anr., (1975) 3 SCC 698: AIR 1975 SC 479; Syed Abdul Khader v. Rami Reddy & Ors., (1979) 2 SCC 601 : AIR 1979 SC 553, Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798, State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912; S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101 and held as under:
"36. 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.
37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party ::: Downloaded on - 21/12/2022 20:32:51 :::CIS 8 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.
38. 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.
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 ::: Downloaded on - 21/12/2022 20:32:51 :::CIS 9 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.
41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment."
(Emphasis supplied by me)
12. In the case Malyalam Plantations Ltd. vs. State of Kerla, (2010) 13 SCC 487, (Para-17), Hon'ble Supreme Court considered the scope of Order XLI Rule 27 C.P.C. and held as under:
"It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the ::: Downloaded on - 21/12/2022 20:32:51 :::CIS 10 lacunae or to patch up the weak points in the case. Adducing additional evidence is in the interest of .
justice. Evidence relating to subsequent happening or events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the Appellate stage in order to enable other party to remove certain lacunae present in that case."
(Emphasis supplied by me)
13. 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 ::: Downloaded on - 21/12/2022 20:32:51 :::CIS 11 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).
14. 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).
15. 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 ::: Downloaded on - 21/12/2022 20:32:51 :::CIS 12 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) ].
16. 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).
17. 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 ::: Downloaded on - 21/12/2022 20:32:51 :::CIS 13 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.
18. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.
19. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the Court of further appeal to see, if the discretion under this rule has been properly exercised by the Court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory ::: Downloaded on - 21/12/2022 20:32:51 :::CIS 14 and not mandatory, if the reception of such evidence can be justified under the rule.
.
20. The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate Court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.
21. Judged in the light of the aforesaid exposition of law, as observed above, the defendant was afforded more than ample opportunities to lead its evidence and even then it had chosen to examine only the proprietor of the firm. What prevented the defendant from producing other witness(s), if any, is not at all forthcoming. If at all Sharawan Kumar was unwell, as alleged, then what prevented the defendant from examining the other proprietor of the firm, namely, Yatin Kumar or any other witness for that matter.
22. Thus, the grounds raised in the application filed before the learned first appellate Court for producing additional ::: Downloaded on - 21/12/2022 20:32:51 :::CIS 15 evidence is nothing but an after thought to fill up the lacunae and cover up its own lapses.
.
23. In the application filed by the petitioner for leading additional evidence, it has been averred in para-2 as under:-
2. That the appellant seeks leave to produce additional evidence/documents on record which are extremely necessary and important to be taken on record for the proper adjudication of the matter and for the matter to be decided on merit.
24. Thereafter the following averments are contained in para-4 of the application, which reads as under:-
4. That the appellant despite exercise of the diligence could not produce the said documents when the decree appealed against was passed due to the fact that case was listed for evidence on 18/05/2015 but before that date appellant had suffered from LEFT HERPES ZOSTER OTICUS (RAMSAY HUNT SYNDROME) on 15/04/2015, due to which not only his right side of this body was paralyzed but also his memory was deeply affected thus he neither could pursue the matter with his lawyer nor could he give the above said documents to be filled in the Court. It is further pertinent to mention that the problem is still not completely cured. (copy of the medical record is appended herewith.::: Downloaded on - 21/12/2022 20:32:51 :::CIS 16
25. The combined reading of paras 2 and 4 (supra) would go to indicate that the application filed by the respondent is .
essentially one under Order 47 Rule 27AA, but then the respondent has not been able to establish that there has been due diligence on its part, more particularly, when it is not its case that the documents as sought to be produced were not within its knowledge and the only explanation for non-production of the same is contained in para-4 (supra) of the application.
26. To say the least, it is nothing but an after thought.
The production of the evidence has nothing to do with the so-
called illness of the respondent and the application otherwise does not fulfill the requirement of Order 47 Rule 27AAA.
27. What makes the matter still worse is the fact that even the learned first appellate Court has not recorded any satisfaction with regards to the application being in compliance with the aforesaid provisions.
28. The first appellate Court had framed two points for determination, which read as under:-
1. Whether application under Order XLI, Rule 27 CPC bearing CMP No. 47 of 2019, is to be allowed?
2. If point no. 1 is answered in affirmative, whether the impugned judgment and decree dated 30.12.2017, passed by the learned Trial Court in Civil Suit No. 87 of 2013, is sustainable?::: Downloaded on - 21/12/2022 20:32:51 :::CIS 17
29. Point No. 1 was thereafter decided by according following reasons:-
.
POINT NO.1:
13. After hearing both the parties and going through the record carefully, I am of the considered opinion that the the application under order Order XLI, Rule 27 read with Section 151 CPC filed by the appellant is to be allowed for the reasons to be recorded hereinafter.
14. The plaintiff-respondent (has filed the suit for recovery on the ground that it has supplied the fruit consignments to the appellant-defendant in the year, 2010-11 and the price total consignment was Rs.
4,68,574/-, but despite several requests of plaintiff, defendant did not make the aforesaid payment. The defendant has taken a specific plea that there was no direct dealing between both the parties. As per defendant, one Rakesh Kumar was local agent of plaintiff and said Rakesh Kumar had contacted the defendant and Consignment of fruits was sent through Rakesh Kumar. Accordingly, sale price was also paid to said Rakesh haul-Spri Kumar, the local agent of plaintiff. Hence, the amount in question stood paid to the plaintiff through Rakesh Kumar.
15. In the light said pleadings, the issues no. 4 and 5 have been framed by the learned trial Court, which relate to the sending of fruit consignment through local agent,Rakesh Kumar and the payment le ::: Downloaded on - 21/12/2022 20:32:51 :::CIS 18 proceeds to plaintiff through said agent Rakesh Kumar. Learned trial Court has decided both these .
issues against the defendant-appellant.
16. The record is revealing that before learned trial Court, on behalf of defendant, only its proprietor, Sharwan Kumar was examined and no other evidence could be led by the defendant. Although, defendant were given several opportunities by the trial Court to adduce evidence. Here, in this appeal, defendant- appellant has stated that he remained ill and due to this reason, he was not in a position to lead relevant evidence in support of issue nos. 4&5. The defendant-appellant has filed, on record, the documents relating to his illness and these documents are pertaining to the year, 2015-16. The record of learned trial Court is revealing that defendant was given opportunity to lead evidence in the year, 2016. So, I find substance in the plea taken by appellant- defendant that due to illness, he was not in a position to lead all the relevant evidence. As the result, the plea of appellant cannot be doubted that despite due diligence, he was not in a position to lead all the relevant evidence.
17. The appellant-defendant has prayed to produce in evidence agreement, affidavit/undertaking of Rakesh Kumar by virtue of which, he accepted the responsibility of all the transactions at Manali. At the same time. appellant-defendant has intended to produce account/ledger showing the payment to ::: Downloaded on - 21/12/2022 20:32:51 :::CIS 19 Rakesh Kumar and the account of statement of PNB,Azadpur Branch of Rakesh Kumar and the .
relevant challan/bills issued during the relevant financial year. To my mind, all the aforesaid documentary evidence are necessary to adjudicate the controversy involved in the suit, especially, the plea taken by the defendant-appellant in the written- statement. I am also of the opinion that aforesaid evidence would also be relevant to decide the issue nos. 4&5,
18. The appellant-defendant could not lead the proposed evidence before learned trial court and he has prayed to lead same evidence before this Appellate Court under Order Order XLI Rule 27 CPC and for the aforesaid reasons, the aforesaid proposed evidence are necessary to adjudicate the controversy on the relevant issues, therefore, the application deserves to be allowed, but, at the same time, the appellant-defendant is liable to be burdened with costs.
19. Accordingly, the application under Order XLI, Rule 27 CPC is allowed subject to payment of costs of Rs. 5,000/-. Hence, this issue is answered in the affirmative.
30. It would be noticed that the learned first appellate Court has practically given no reason whatsoever as to how the defendant-respondent despite due diligence was not in a position to lead relevant evidence.
::: Downloaded on - 21/12/2022 20:32:51 :::CIS 2031. Before coming to such conclusion, it was incumbent upon the learned first Appellate Court to have given its findings .
and reasons after all one of the proprietor of the firm Sharawan Kumar had eventually appeared in the witness box and if he was so sick, nothing prevented the defendant from examining the other proprietor Yatin Kumar or any other witness in support of its case.
32. It is more than settled that the law comes to the aid of the vigilant and not those who sleep over their rights or those who lack diligence and adopt a callous approach.
33. In view of the aforesaid discussion and for the reasons stated above, the impugned judgment passed by the learned first Appellate Court is clearly not sustainable in the eyes of law and the same is accordingly set aside. Consequently, the application filed by the respondent under Order 41 Rule 27 is ordered to be dismissed. The parties are directed to appear before the learned first Appellate Court on 03.01.2023. The record of the case be transmitted to the concerned Court forthwith.
Parties are left to bear their own costs.
(Tarlok Singh Chauhan) Judge 20th December, 2022 (sanjeev) ::: Downloaded on - 21/12/2022 20:32:51 :::CIS