Punjab-Haryana High Court
Shri Naresh Chandra And Anr. vs Shri Mahavir Singh And Ors. on 12 July, 2000
Equivalent citations: (2000)126PLR671
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT V.M. Jain, J.
1. This is a revision petition against the order dated 24.12.1999 passed by the District Judge, dismissing the application dated 20.10.1999 filed by the plaintiffs-appellants under Order 41 Rule 27 read with Section 151 CPC.
2. The facts which are relevant for the decision of the present revision petition are that the plaintiffs Naresh Chandra etc. had filed a suit for specific performance of the agreement to sell dated 30.1.1995 and for delivery of vacant possession and also declaration against defendants Mahavir Singh etc. In the said suit, it was alleged by the plaintiffs that defendant No. 1 Mahavir Singh was the absolute owner of the land measuring 102 Kanals and 14 marlas detailed in the plaint and that he entered into a written agreement to sell dated 30.1.1995 with plaintiff No. 1 Naresh Chandra for the sale of a part of the suit land measuring 5 acres detailed in the plaint @ Rs. 99 lacs per acre and the total consideration was Rs. 4,95,,00,000/-. It was alleged that at the time of said agreement, a sum of Rs. 11.00 lacs was paid as advance money on 30.1.1995 and a receipt was duly executed by defendant No. 1 in favour of plaintiff No. 1 and the balance consideration of Rs. 4,84,00,000/- (inadvertently written in words in the said agreement as Rupees Four crores eighty four thousand only) was to be received by the vendor from the vendee at the time of registration of the sale deed. It was alleged that the actual physical vacant possession of the suit land was to be delivered by the vendor to the vendee at the time of registration of the sale deed. It was alleged that the vendor was to obtain various sanctions/permissions before executing sale deed in favour of vendee. It was further alleged that as per the agreement, the vendor was to execute the sale deed in favour of the. vendee within a period of four months from the said date. It was alleged in the suit that in pursuance of the said agreement to sell dated 30.1.1995, defendant had submitted on 7.8.1995 application before the Income Tax Department for obtaining necessary permission/clearance for the sale of the said land and the said application was signed by plaintiff No. 1 and defendant No. 1 and copy of the agreement to sell dated 30.1.1995 alongwith other documents was attached alongwith the said application and the necessary permission was granted by the Income Tax department vide letter dated 26.5.1995 and on receipt of the said letter, plaintiff No. 1 wrote letter dated 29.5.1995 to defendant No. 1 informing about the grant of necessary approval and requesting defendant No. 1 to take immediate steps for obtaining other necessary permission etc. for the purpose of executing sale deed. It was alleged that thereupon defendant No. 1 applied to the concerned authorities for obtaining necessary certificate etc. and also attached copy of the agreement and defendant No. 1 had also sworn an affidavit dated 27.6.1995 giving the details of 5 acres of land agreed to be sold. It was alleged that thereafter necessary permission was granted vide endorsement dated 19.7.1995. It was alleged that in pursuance of the said agreement to sell dated 30.1.1995, plaintiff No. 1 had been negotiating for an agreement with plaintiff No. 2, a multinational company, for rendering advisory services and spent huge expenses in consequence of the agreement to sell. Plaintiff No. 1 at the request of defendant No. 1 had also purchased stamp papers in favour of plaintiff No. 2, being the nominee of plaintiff No. 1, of the value of Rs. 61,87,500/- and also got the sale deed ready thereon in favour of plaintiff No. 2 for its execution by defendant No. 1 but inspite of all this, defendant No. 1 failed to execute the sale deed and on 15.3.1996, defendant No. l completely refused to perform his part of the contract even though plaintiff No. 1 had always been ready and willing to perform his part of contract and was still willing to perform his part of contract and had even got stamp papers worth Rs. 61,87,500/purchased and had also got sale deed prepared thereon. It was further alleged that plaintiffs were ready to deposit the balance sale consideration of Rs. 4,84,00,000/- by way of demand draft in the court as and when directed to do so. However, defendant No. 1 failed to execute the sale deed in terms of the said agreement. Initially, the suit was filed only against defendant No. 1, but on coming to know from the written statement filed by defendant No. 1 that he had transferred the suit land in favour of his sons (defendants 2 and 3) by way of civil court decree dated 14.9.1995, the plaintiffs amended the suit and impleaded defendants 2 and 3 in the said suit and it was alleged that the decree dated 14.9.1995 passed in civil suit No. 727 of 1995 titled as Rajinder Kumar and Ors. v. Mahavir Singh was illegal and void and was liable to be set aside and was not binding on the rights of the plaintiffs.
3. The suit filed by the plaintiffs was contested by defendants. In the written statement filed by defendant No. 1, to the amended plaint, it was alleged that the suit of the plaintiffs was based on the false and forged documents. It was alleged that defendant No. 1 had agreed to sell lesser area to plaintiff @ Rs. 99.00 lacs per acre, giving the details of the area agreed to be sold, but the plaintiff No. 1 made material additions in the agreement to sell which had completely changed the nature and contents of the said document. A comparison with the photostat copy of the agreement to sell which was supplied by plaintiff 1 to defendant 1 with the original agreement to sell would show that unauthorised additions had been made. It was alleged that unauthorised additions/alterations had been made by plaintiffs without knowledge and consent of defendant No. 1 and since the suit was based on false and forged documents, the plaintiffs were not entitled to the discretionary relief of specific performance of the agreement to sell and it was alleged that while making additions/alterations the plaintiffs had included certain killa numbers while defendant No. 1 at no point of time had agreed to sell and even otherwise the said land was adjacent to Gurgaon-Mehrauli road and if that land is sold to plaintiffs then the. remaining land of defendant No. 1 would have no access from any side. It was alleged that plaintiff No. 1 had got signatures of defendant No. 1 on several blank forms for the purpose of obtaining necessary permission from various government departments and he had filled in the blank forms according to his own convenience. It was further alleged that the suit land was the joint Hindu family property and defendant No. l was not the absolute owner of the same and the other members of the joint Hindu family namely defendants 2 and 3 on the basis of their legal right in the property in dispute had obtained the decree for declaration in their favour that they were owners in possession of the suit land. It was alleged that the suit for specific performance was not maintainable and even otherwise plaintiff No. 1 had failed to perform his part of agreement within the specified period. It was alleged that at the time of signing the agreement to sell by defendant No. 1 there were certain spaces which were left blank which were filled by plaintiff No. 1 in his own handwriting according to his own convenience. It was alleged that defendant No. 1 had not agreed to sell 5 acres of land and thus the sale consideration of Rs. 4,95,00,000/- was not agreed to be paid as price of the land. It was, however, admitted that Rs. 11-00 lacs were received as earnest money. It was alleged that plaintiff No. 1 had obtained signatures of defendant No. 1 on various forms for obtaining necessary clearance certificates etc. from the Income Tax Department. Plaintiff No. 1 got the blank forms typed as per his own convenience. It was denied that defendant No. 1 had sworn any affidavit dated 27.6.1995 giving details of the 5 acres of land. It was further alleged that the judgment and decree dated 14.9.1995 were legal and valid. Defendants 2 and 3 in their written statement also pleaded that the judgment and decree dated 14.9.1995 in their favour were legal and valid.
4. The plaintiffs filed replication to the written statements filed by the defendants. On the pleading of the parties, the learned trial court framed various issues and additional issues. Both the parties led evidence in support of their respective contentions. During the pendency of the suit, the handwriting and finger print expert on behalf of the defendants had inspected the original documents and had also taken photographs and had submitted his report. Similarly, the finger print expert appearing on behalf of the plaintiffs had also inspected the record and had taken photographs and had submitted his report. The original document i.e. agreement in question was also sent to the Forensic Science Laboratory, Madhuban and the said Laboratory had also submitted its report. After the conclusion of the evidence and after hearing both sides, the learned trial court vide judgment and decree dated 24.4.1999 dismissed the suit of the plaintiffs. Aggrieved against the said judgment and decree of the trial court, plaintiffs filed appeal before the District Judge. The appeal was admitted to a regular hearing.
5. During the pendency of the appeal before the District Judge, plaintiffs-appellants filed an application dated 20.10.1999 under Order 41 Rule 27 read with Section 151 CPC. In the said application, it was alleged that the matter essentially involved in the appeal was as to whether any addition/alteration/erasur had been made in the agreement to sell Exhibit PW 6/A, the onus of which was on defendants. It was further alleged that the original agreement to sell Exhibit PW 6/A and the purported photocopy mark RX produced by defendant No. 1 were examined by the experts of the plaintiffs and defendants as also from Forensic Science Laboratory, Madhuban who had submitted their reports and were also produced in the witness box. It was alleged that DW-9 Gulshan Rai (Assistant Director, Documents, Forensic Science laboratory, Madhuban) in his report Exhibit DW-9/A had opined that it is not possible to decipher what was allegedly written under the existing figure 5 of page 2 of the agreement to sell Exhibit PW 6/A and also under the existing figure of Rs. 11,00,000/- and the words (Rupees Eleven lacs only) on page 3 of the said agreement. It was further alleged that DW-9 had also said that he had examined agreement to sell Exhibit PW 6/A under stereo microscope video spectrals comparator, projectine, universal comparison projector under different lighting conditions. It was alleged that blanks of the documents Exhibit PW 6/A Were filled with ball point pen and ordinary it is not possible to completely remove ball point writing by a mechanical process because the ball point ink affirmly adheres to the paper and on applying mechanical erasers, the paper fibre in the area will be disturbed and it will cause thinning of paper in that particular portion and the surface of the paper would be considerably damaged and in case the surface of the paper is not damaged, tell tale remnants of the ball point writing would be visible. It was alleged that complete absence of remnants of any previous alleged writing in the instant case would clearly show that there was no previous writing under the existing figure 5 at page 2 of the said agreement and also under the existing figure of Rs. 11,00,000/- and the words (Rupees Eleven Lacs only) at page 3 of the said agreement. It was alleged that in fact there was no previous writing under the said places in the said document.
6. In the said application, under Order 41 Rule 27 read with Section 151 CPC, it was further alleged by the plaintiffs-appellants that they had now come to know that there are certain systems available with Forensic Science laboratory, Government of N.C.T., Delhi, namely Document Center System, Polyview and other systems with the help of which it can be conclusively determined as to whether any mechanical erasur has been made and if so, whether such erasur is "under" or "around" the original writing. It was alleged that said systems were not available to any of the 3 experts who had examined the original document in the present case and that the plaintiffs-appellants had learnt about this only recently i.e. few days back. It was also alleged that consequently, the present application was being filed before the said Court as an appeal is continuation of the suit and all powers which can be exercised by the trial court can also be exercised by the appellate Court. It was further alleged that the examination of the agreement to sell Exhibit PW 6/A by the Forensic Science Laboratory, Government of N.C.T. Delhi or from any other government Forensic Science Laboratory having sufficient instruments/apparatus for detection of erasurs, as stated above, is essential for the just decision of the case and for enabling the court to pronounce the judgment and for doing complete justice between the parties. It was alleged that such examination would further the cause of justice and would not cause any prejudice to the defendants-respondents. Details of certain facts which were allegedly evident on the face of the record were also given in the application, alleging therein that those facts would convince the court that further enquiry was warranted on the facts and circumstances of the present case by way of additional evidence.
7. In the application for additional evidence, it was further alleged that photocopy of the agreement to sell was submitted by plaintiff No. 1 and defendant No. 1 jointly in the office of the Income Tax Department, New Delhi on 7.2.1995 i.e. within 9 days of the execution of the agreement to sell dated 30.1.1995 and the necessary permission was granted by the Income Tax Department on 26.5.1995. It was alleged that a comparison of the said photocopy of the agreement to sell with the original document would show that the original document was tampered with by the defendants or their expert after the same was filed in the trial court. Under these circumstances, the original record from the office of appropriate authority of the Income Tax department may be summoned by way of additional evidence under Order 41 Rule 27 read with Section 151 CPC and the photostat copy of the agreement to sell contained therein may be got compared with the original agreement to sell Exhibit PW 6/A either by the court itself or by any Government Forensic Science Laboratory, other than Forensic Science Laboratory, Madhuban, at the expenses of the appellants. It was alleged that it was extremely essential that the original agreement to sell Exhibit PW 6/A, the alleged photocopy of the same produced by defendant as Mark RX and the photocopy of the said agreement filed by plaintiff No. 1 and defendant No. 1 jointly in the office of Income Tax department on 7.2.1995 may be got examined/compared from any Government Forensic Science Laboratory at the expenses of the appellants so as to arrive at an appropriate and just conclusion.
8. The aforesaid application of the-plaintiffs-appellants under Order 41 Rule 27 read with Section 151 CPC was contested by defendant-respondent No. 1 by filing written reply dated 17.11.1999, alleging therein that the said application had been filed by the plaintiffs-appellants simply to delay the disposal of the case. It was further alleged that this evidence, which is sought to be produced by way of additional evidence, could be adduced by plaintiffs-appellants in the trial court and no reasons have been given as to why this evidence was not led in the trial court. It was alleged that application was highly belated. It was alleged that erasur in the agreement is evident and what was written underneath is not of much importance because erasing in the agreement to sell and writing fresh on the same erased space is an act of forgery. It was alleged that plaintiffs appellants by moving the said application for additional evidence wanted to examine all the documents by Forensic Science Laboratory, Government of N.C.T., Delhi or by any other Government Forensic Science Laboratory having sufficient instruments/examination apparatus for detection of erasure which amounts to asking the Court to make detailed inquiry as to whether the said facilities are available in any laboratory and then to send the documents to the said Laboratory. It was further alleged that no case was made out for sending the disputed documents to any Government Forensic Science Laboratory for examination/report. It was further alleged that no case was made out for summoning file from the Income Tax department containing photocopy of agreement to sell as it was the plaintiff No. 1 or his representative who was pursuing the matter with the income tax authorities.
9. The plaintiffs filed rejoinder to the said written reply. The plaintiffs also filed written submission in support of the application. The learned District Judge after hearing both sides and after perusing the record dismissed the application of the plaintiffs under Order 41 Rules 27 read with Section 151 CPC, vide order dated 24.12.1999. It is against this order of the learned District Judge that the plaintiffs-appellants have filed the present revision petition in this Court.
10. Notice of motion was issued.
11. At the start of the arguments, the learned counsel appearing for the plaintiffs-petitioners placed on record a certificate dated 17.1.2000 issued by the Director Incharge of the Forensic Science Laboratory, Government of N.C.T. of Delhi with regard to the facilities available with the said Laboratory for the examination of the disputed documents. A copy of the said certificates was supplied to the counsel for the respondents.
12. I have heard the learned counsel for the parties and have gone through the record.
13. At the outset, the learned counsel appearing for respondents raised a preliminary objection with regard to the maintainability of the present revision petition. It was submitted that the appellate Court having refused to allow the plaintiffs - petitioners to produce additional evidence in appeal, no revision was maintainable in this court against the order refusing to allow the plaintiffs to produce additional evidence. Reliance was placed on Gurdev Singh and Ors. v. Mehnga Ram and Anr., JT 1997 (7) 56 which was followed by this Court in Sher Singh and Anr. v. Mis Kashmiri Lal Chaman Lal Saraf (1998-2)119 P.L.R. 225 and Balwant Singh and Anr. v. Bishan Singh (19982)119 P.L.R. 482. On the other hand, the learned counsel appearing for the plaintiffs-petitioners submitted before me that since the appellate court had dismissed the application for the production of additional evidence, there was no bar to the filing of the revision petition by the plaintiffs-petitioners in this Court. It was submitted that all the cases relied upon by the learned counsel for respondents pertain to the cases where the additional evidence was allowed by the appellate court.
14. After hearing the counsel for both sides and perusing the record, in my opinion, the preliminary objection raised by the learned counsel for respondents is mis-conceived and is liable to be rejected. In the present case, as referred to above, the suit filed by the plaintiffs was dismissed by the trial court. The plaintiffs filed an appeal before the District Judge. During the pendency of the appeal, the plaintiffs filed an application for additional evidence. This application was dismissed by the learned District Judge. Aggrieved against the said order of the learned District Judge, the plaintiffs filed the present revision petition in this court, challenging the order of the learned District Judge vide which the application filed by the plaintiffs-petitioners for production of additional evidence was dismissed. From a reading of Section 115 CPC, it could not be said that no revision is competent against such an order passed by the District Judge in appeal. The question as to whether this Court should exercise its revisional powers under Section 115 CPC is a different matter, depending upon the facts and circumstances of the each case. However, on the face of it, it could not be said that no revision petition is competent against the order passed by the District Judge dismissing the application for additional evidence filed by the plaintiffs during the pendency of the appeal. The authority JT 1997(7) SC 56 (supra), relied upon by the learned counsel for the respondents, in my opinion, would have no application to the facts of the present case. In the reported case, the learned Additional District Judge at the final hearing of the appeal had felt that the additional evidence was required to be produced as requested by the appellants by way of examining of a handwriting expert. The High Court vide impugned order exercising jurisdiction under Section 115 CPC took the view that the order of the appellate court could not be sustained. It was under those circumstances that it was held by their lordships of the Supreme Court that approach of the High Court in revision at that interim stage, when the appeal was pending for final hearing before the Additional District Judge, was not justified and the High Court should not have interfered with the order which was within the jurisdiction of the appellate Court. It was further held by their lordships that if the order passed by the appellate court was wrong on merits, it would always be open for the respondents to challenge the same in accordance with law if an occasion arises to carry the matter in second appeal, after an appellate decree is passed but at the interim stage, the High Court should not have felt it convinced that the order was without jurisdiction. The law laid down by their lordships of the Supreme Court in the said authority, in my opinion, would have no application to a case where the appellate court had refused to allow additional evidence during the pendency of the appeal in as much as in that eventuality, if the appeal is finally decided against the party seeking production of additional evidence and if the aggrieved party files second appeal in the High Court, the aggrieved party would have again to seek production of additional evidence, either by challenging the order vide which the application for additional evidence was rejected by the first appellate court or by moving a separate application in the High Court for production of additional evidence. On the other hand, if the additional evidence is allowed by the first appellate court and ultimately the appeal is decided against the party who was opposing the production of additional evidence, that party would have the occasion to file second appeal in the High Court and also to challenge the order of the first appellate court allowing the production of additional evidence and if the High Court is convinced, while hearing second appeal that no case was made out for the first appellate court to have allowed the production of additional evidence, the High Court would have the power to set aside that order of the first appellate court and to ignore the evidence which was produce by the other party by way of additional evidence in the appeal. For the same reasons, the other two authorities, (1998-2)119 P.L.R. 225 and (1998-2)119 P.L.R. 482 (supra) relied upon by the learned counsel for the respondents would also have no application to the facts of the present case.
15. Coming on merits, the learned counsel appearing for the plaintiffs-petitioners submitted before me that in view of the certificate dated 17.1.2000 issued by the Director Incharge, Forensic Science Laboratory, the question of erasurs on the disputed documents could be determined through scientific method and this facility was not earlier available with any Forensic Science Laboratory and it was only some time in the year 1999 that this facility became available with the Forensic Science laboratory of Government of N.C.T. of Delhi. For this reason, the plaintiffs-petitioners could not get the disputed documents examined from the point of view of erasurs. It was submitted that similarly the question of embossing and indentations also could be got determined with scientific method from the said Laboratory. It was submitted that if on account of development in science, the disputed documents could be got examined from the laboratory having lights and scientific instruments/equipment to find the truth, the law of procedure would not come in the way of the Courts to allow the plaintiffs-petitioners to get the disputed document re-examined from the laboratory having latest equipment, by way of additional evidence. It was further submitted that for the same reasons if the record from the Income Tax department was summoned so as to compare the photostat copy of the agreement with the original document produced in the court, it would also advance the ends of justice and would enable the court to pronounce the judgment and to do justice between the parties, especially when it was not in the knowledge of plaintiffs-petitioners that such a facility had become available in India. It was further submitted that there would be no malafide on the part of the plaintiffs-petitioners to ask for the additional evidence and to get the matter delayed, when the plaintiffs themselves have filed the suit for specific performance and also for vacant possession of the land in question. Learned counsel for the petitioners has placed reliance on Billa Jagan Mohan Reddy and Anr. v. Billa Sanjeeva Reddy and Ors.. 1994 (4) S.C.C. 659. Reliance was also placed on Pirbhit Dayal and Ors. v. Prem Dass Chola Kishan Lal and Ors.' (1995-2)1 10 P.L.R. 119 and Gurdial Singh v. Gulshan Kumar (1999-3)123 P.L.R. 381
16. On the other hand, the learned counsel appearing for the defendants-respondents submitted before me that on the pleadings of the parties, the trial court had framed various issues and the parties had led evidence before the trial court. He further submitted that there was absolutely no reason as to why such a prayer was not made earlier either before the trial court or before the District Judge. Reliance was placed on Natha Singh and Ors. v. The Financial Commissioner Taxation, Punjab and Ors. AIR 1976 SC 1053, Smt. Chhotu v. Bijinder Kumar (1994-2)107 P.L.R. 282, Darshan Singh v. Santokh Singh (1997-2)1 16 P.L.R. 158, Amar Singh and Ors. v. Ashok Kumar (1973)7 5 PLR 761 and The Municipal Corporation of Greater Bombay v. Lala Pancham and Ors. MR 1965 SC 1008.
17. After hearing both sides and after perusing the record, in my opinion, the present revision petition must be allowed, the order dated 24.12.1999 must be set aside and the application for additional evidence under Order 41 Rule 27 read with Section 151 CPC filed by the plaintiffs-petitioners before the District Judge must be allowed.
18. The certificate 17.1.2000, issued by the Director Incharge of the Forensic Science Laboratory, Government of N.C.T. of Delhi, a copy of which was placed on record of this petition by the learned counsel appearing for the plaintiffs-petitioners, reads as under:-
"It is certified that Forensic Science Laboratory, Government of NCT of Delhi is equipped with the latest scientific instruments developed in the field of Forensic Documents for examination of erasers (mechanical or chemical to decipher the original writings), alterations, additions, interlineations, substitutions, obliterations, embossing, indentations, etc. This Laboratory is the only laboratory in the country so far to possess DOCUMENTER SYSTEM imported from M/s Projecting Limited. Heerbrugg (Switzerland which is an excellent instrument to examine the disputed documents in Visible light, Transmitted light, Oblique light, Ultra-violet light (including short way ultraviolet light not available with any instrument development so far), infra-red light upto 1000nm as well as I.R. Lumniscene and retro-reflected light. This laboratory is also in possession of another highly sophisticated instrument called Poliview System imported from M/s Rofin Australia Pty. Ltd. Victoria (Australia) which is highly useful for distinguishing great majority of inks in use in India on account of Poli-light, exciting filters, barrier filters, image enhancement system from 310 to l000nm. With the aid of these two instruments continuously in use since 1999, this laboratory has been able to successfully solve intricate Forensic document problems in the recent past which had defied solution earlier. Because of these unique facilities, this laboratory has been receiving some difficult references for examination from CBI and other State Forensic Science Laboratories.
Since this laboratory also possesses other systems like VSC-IV, Electrostatic Vacuum Box. Stereomicroscopes etc., presently this laboratory is considered to be the best equipped laboratory in the country for examination of Forensic Documents.
Sd/- (A.K. Gupta) DIRECTOR INCHARGE Forensic Science Laboratory Govt. of NCT of Delhi".
19. From a perusal of the above, it would be clear that in the said-certificate, the Director Incharge of the Forensic Science Laboratory, Govt. of NCT of Delhi had certified that the said laboratory was equipped with the latest scientific- instruments developed in the field of forensic documents for the examination of the erasurs (mechanical or chemical to decipher the original writings), additions, inter-lineation, substitutions, obliteration, embossing, indentations etc. It was further certified in this certificate that this laboratory was the only laboratory in the country so far to possess DOCUMENTER SYSTEM, which is an excellent instrument to examine the disputed documents in visible light, transmitted light, oblique light, ultra-violet light (including shortwave ultraviolet light not available with any instrument developed so far), infra-red light upto l000nm as well as I.R. Lumniscene and retro-reflected light. It was further certified that by the Director of the said laboratory that the said laboratory was also in possession of another highly sophisticated instrument which is highly useful for distinguishing great majority of inks in use in India on account of Poli-light, exciting filters, barrier filters, image enhancement system from 310 of l000nm. It was also certified that with the aid of these instruments continuously in use since 1999, the said laboratory has been able to successfully solve intricate forensic document problems in the recent past which had defied solution earlier and because of these unique facilities, this laboratory has been receiving some difficult references for examination from CBI and other state Forensic Science Laboratory. It was also certified that presently, this laboratory is considered to be the best equipped laboratory in the country for examination of forensic documents.
20. It is in the light of the facilities available in the Forensic Science Laboratory, Govt. of NCT of Delhi for examination of disputed documents with the help of latest scientific equipments, referred to above that the prayer of the plaintiffs-petitioners for sending the disputed agreement of sale dated 30.1.1995 for examination by the said laboratory by way of additional evidence, is to be considered by this Court. It is no doubt true that during the course of trial, both the sides had produced their evidence in support of their respective contentions. Even the disputed agreement of sale dated 30.1.1995 was sent to the Forensic Science Laboratory, Madhuban (Haryana) for examination and the report submitted by the said laboratory was also got proved by the defendants-respondents by examining expert from the said laboratory. However, the fact remains that with the availability of latest technique/equipment to determine the question of erasurs, embossing and indentations by scientific method, should the disputed document be not sent to Forensic Science Laboratory, Govt. of NCT Delhi for examination, so as to reach at the truth of the matter especially when there were allegations/counter allegations and the defendants-respondents are not going to suffer anything because of the delay that may be caused by getting the disputed documents examined from the Forensic Science Laboratory, Govt. of NCT, Delhi, since it is a suit for possession filed by the plaintiffs and the plaintiffs are likely to suffer more in case there was delay in the disposal of the case. In any case, the delay part can be taken care of by directing the laboratory to examine the disputed documents on priority basis and similar directions can be given to District Judge to dispose of the appeal expeditiously after the report is received from the said laboratory and is proved in accordance with the law.
21. In the present case, while dismissing the application of the plaintiffs-petitioners for additional evidence especially for getting the disputed agreement to sell dated 30.1.1995 examined from the Forensic Science Laboratory, Govt. of NCT of Delhi, the learned District Judge made following observations:-
".....The plaintiffs had not opposed the application of defendant No. 1 for getting the photocopy of the agreement to sell Mark RX and original agreement to sell Exhibit PW 6/A examined on the ground that Forensic Science Laboratory, Madhuban is not scientifically equipped to render the opinion in this regard and that the documents in question should be got examined from the Forensic Science Laboratory of Govt. of NCT Delhi, which is equipped with latest system or any other Forensic Science laboratory of Government of India."
22. In my opinion, this observation made by the learned District Judge is on the face of it fallacious. As referred to above, the case of the plaintiffs-petitioners throughout was that they came to know about the latest technical facility available with the Forensic Science Laboratory, of Govt. of NCT of Delhi only recently when they moved the application under Order 41 Rules 27 dated 20.10.1999. Even the learned District Judge had noticed in the order under revision that the case of the plaintiffs was that now they had come to know about this facility being available with the Forensic Science Laboratory, Govt. of NCT of Delhi. That being the position, there would be no occasion for opposing application of defendant No. 1 for sending the disputed document to Forensic Science Laboratory, Madhuban (Haryana) at that time before the trial court on the ground that Forensic Science Laboratory, Madhuban was not scientifically equipped to give opinion or that the document should be got examined from Forensic Science Laboratory of Govt. of NCT of Delhi. If at the relevant time this facility was not available with the Forensic Science Laboratory of Govt. of NCT of Delhi or was not known to the plaintiffs-petitioners, they could not be expected to take such an objection at that time before the trial court. Even the certificate dated 17.1.2000 issued by the Director Incharge of the Forensic Science Laboratory of Govt. of NCT of Delhi clearly shows that the latest equipments were in use with the said laboratory only since 1999, meaning thereby that this facility was not earlier available with the said laboratory. Furthermore, while dismissing the application of the plaintiffs-petitioners for additional evidence, the learned District Judge made the following observations:-
".....It is not a case where the evidence existed and the existence of that evidence was not to the knowledge of the plaintiffs and despite exercise of due diligence the same could not be produced by the plaintiffs. Rather, they have after exercise of due diligence located the existence of Forensic Science Laboratory, Government of NCT Delhi, a few days back. It means that opinion of the Forensic Science laboratory, Govt. of NCT. Delhi is sought to be obtained from the side of the plaintiffs because the facility which is available with the Forensic Science Laboratory, Govt. of NCT Delhi was not available to any of the experts. This cannot be construed as sufficient cause to permit the plaintiff to lead additional evidence as sought to be prayed in the application......"
23. In my opinion, if the latest facility was not available at the time when the parties led evidence before the trial court and if this facility became available only recently in the year 1999 and if the plaintiffs wanted to get disputed documents examined from Forensic Science laboratory of Govt. of NCT Delhi, to give more scientific opinion about the embossing and indentations etc., it could not be said that this would not be a sufficient cause to permit the plaintiffs to lead additional evidence during the pendency of the appeal. In my opinion, the entire approach of the learned District Judge in this regard, while dismissing the application for additional evidence is fallacious. In fact, the learned District Judge had refused to allow the production of additional evidence contrary to the principles governing the reception of such evidence and that being so, it would be improper exercise of discretion which would amount to failure on the part of the learned District Judge to exercise jurisdiction vested in him by law. That being so, it would require interference by this Court in the exercise of its revisional jurisdiction, especially when the order under revision, if allowed to stand would occasion a failure of justice.
24. In 1994 (4) SC 659 (supra), it was held by their lordships of the Supreme Court that if the documents are found to be relevant to decide the real issue in controversy and when the court felt that interest of justice requires that the documents may be received, exercising the power under Order 41 Rule 27 CPC, the appellate court would receive the documents and consider their effect thereof. It was further held in the said authority that when such is the position, when the documents are sought to be produced in the trial court, before the arguments are completed, normally they may be received; an opportunity given to prove them and rebuttal if any and their relevance and effect they may have, be considered in deciding the issues arising in the Controversy. It was further held that under those circumstances, the court was not justified in refusing to receive the document and the High Court also committed the same error in not considering the effect in this behalf in the right perspective. In (1995-2)110 P.L.R. 119" (supra), application for additional evidence was filed in this Court during the pendency of the Regular Second Appeal. After examining those documents, it was found by this court that the documents sought to be produced by way of additional evidence are not such documents which could be procured or manipulated. These are all copies from revenue records. The courts itself desired to look into such documents with a view to decide the controversy effectively. It was during the course of arguments that the application for additional evidence was filed. It was under those circumstances that the application for additional evidence was allowed by the High Court and the case was remanded to the first appellate court to decide the matter afresh after allowing the production of additional evidence and to produce evidence in rebuttal by the other side. In K. Venkataramiah v. A, Seetharama Reddy and others, AIR 1963 SC 1526, a Constitutional Bench of their lordships of the Supreme Court had held that under Order 41 Rule 27 CPC, the appellate court has the power to allow the additional evidence not only it requires such evidence to enable it to pronounce the judgment but also for any other substantial cause. It was further held that there may well be cases where even though the court finds that it is able to pronounce judgment on the state 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. Such a case will be one for allowing additional evidence for any other substantial cause under Order 41 Rule 27 CPC. In view of the law laid down by their lordships of the Supreme Court in AIR 1963 SC 1526 (supra), in my opinion, the learned District Judge erred in law in dismissing the application of the plaintiffs-appellants for production of additional evidence, especially when the production of the said evidence was necessary for the court to pronounce its judgment in a more satisfactory manner, and this was a case for allowing additional evidence for a substantial cause.
25. The various authorities relied upon by the learned counsel for the defendants-respondents, in my opinion, would have no application to the facts of the present case. In AIR 1976 SC 1053 (supra), it was held by their lordships of the Supreme Court that the discretion given to appellate court to receive and admit additional evidence under Order 41 Rule 27 CPC is not an arbitrary one but as a judicial one circumscribed by the limitations specified in that provision. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. It was further held in the said authority that the true test to be applied in dealing with the application for additional evidence is whether the appellate court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced. In the reported case, it was found by their lordships that they did not experience any inherent lacuna or obscurity which was required to be filled up or removed or any other difficulty in rendering the judgment on the material already on the record. However, on the facts of the present case, if the report is received from the Forensic Science Laboratory of Govt. of NCT of Delhi, after more scientific examination of disputed documents, in my opinion, it would be a case one for allowing additional evidence for any other substantial cause and that being so, the production of additional evidence could not be refused on the facts of the present case, In AIR 1965 SC 1008 (supra), it was held by their lordships of the Supreme Court that under Order 41 Rule 27, the appellate court has the power to allow a document to be produced and a. witness to be examined. But the requirement of the court must be limited to those cases where it is found necessary to obtained such evidence for enabling it to pronounce judgment. It was further held in the said authority that it does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing the 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. In the present case, the prayer of the plaintiffs-appellants before the first appellate court was to sent the disputed document to Forensic Science Laboratory of Govt. of NCT of Delhi for more scientific examination by way of additional evidence. This application was moved by the plaintiffs-appellants at their own risk. If the document had been sent to the said laboratory for more scientific examination and the report could come either side. If the report had come against the plaintiffs-appellants, they themselves would be responsible for it. If the report would have come against the defendants respondents, they would be at liberty to produce evidence in rebuttal to the additional evidence. At this stage, it could not be said that production of additional evidence would have been only for the purpose of pronouncing judgment in a particular way. That being so, no case was made out for refusing to allow the plaintiffs-appellants to produce additional evidence especially when it was required to do real justice between the parties. The authorities (1994-2)107 P.L.R. 282 (supra) and (1997-2)116 P.L.R. 158 (supra) and (1973)75 PLR 761 (supra), relied upon by the learned counsel for the defendants respondents, would also have no application to the facts of the present case, in view of the law laid down by their Lordships of the Supreme Court in AIR 1963 SC 1526 (supra).
26. In the present case, besides asking for sending the disputed documents to the Forensic Science Laboratory, Govt. of NCT of Delhi for more scientific examination and report, by way of additional evidence, the plaintiffs-appellants also made prayer for allowing the plaintiffs-appellants to summon the record from the Income Tax authorities bearing a photostat copy of the agreement to sell dated 30.1.1995 which was attached with the application moved by plaintiff No. 1 and defendant No. 1 jointly on 9.2.1995 for obtaining necessary permission from the Income Tax authorities. The learned District Judge while dismissing the application under Order 41 rule 27 read with Section 151 CPC had not adverted to the said request made by the plaintiffs-appellants before him in the said application for additional evidence. After considering the entire matter, in my opinion, it was a fit case where the plaintiff-appellants should have been allowed to summon the original record from the Income Tax authorities containing the photostat copies of the disputed documents and to get the same examined from a Government expert alongwith the original document and the photostat copy of the agreement being relied upon by the defendants-respondents. The said photostat copy of the disputed agreement would certainly throw some light on the dispute between the parties, especially when the said copy was submitted to the Income Tax authorities only a few days after the agreement in question was entered into between the parties (the agreement is dated 30.1.1995 and the photostat copy is alleged to have been submitted to the Income Tax authorities on 9.2.1995 alongwith application jointly moved by the plaintiff No. 1 and defendant No. 1 for obtaining necessary permission from the Income Tax authorities). In my opinion, the production of the said photostat copy and its examination and comparison would be necessary "for any other substantial cause", as required under Order 41 Rule 27 (1) (b) CPC. In my opinion, the learned District Judge had failed to advert himself to this aspect of the matter while dismissing the application under Order 41 Rule 27 CPC. This amounts to failure on the part of the learned District Judge to exercise a jurisdiction vested in him by law which would require interference by this Court in the exercise of its revisional jurisdiction, especially when the order of the District Judge if allowed to stand would occasion failure of justice.
27. No other point has been raised before me in this revision petition.
28. For the reasons recorded above, the present revision petition is allowed. The order dated 24.12.1999 passed by the District Judge is set aside and the application for additional evidence filed by the plaintiffs-appellants under Order 41 Rule 27 read with Section 151 CPC is allowed, subject to payment of Rs. 5000/- as costs.
29. Parties through their counsel are directed to appear before the learned District Judge on 8.8.2000 for further proceedings in accordance with law. On the said date, the plaintiffs-appellants shall tender the conditional cost to the defendants-respondents. Thereupon, the learned District Judge shall allow the plaintiffs-appellants to summon a witness from the Income Tax Department alongwith the relevant record. Thereafter, the learned District Judge shall send the original agreement to sell dated 30.1.1995 Exhibit PW 6/A to the Forensic Science Laboratory of Govt. of NCT of Delhi alongwith photocopy mark RX produced by defendants-respondents and the photocopy of the agreement, if available in the Income Tax file, referred to above, for the purposes of examination/comparison and report. On receipt of the report, the learned District Judge shall allow the concerned party to get the said report proved in accordance with law. Thereafter, the learned District Judge shall give opportunity to the defendants-respondents to produce evidence in rebuttal to the additional evidence. Thereafter, the learned District Judge shall proceed to decide the appeal in accordance with law as expeditiously as possible.
30. Before parting, it is made clear that while sending the documents to Forensic Science Laboratory of Govt. of NCT of Delhi for examination/comparison and report, the learned District Judge shall impress upon the Director Incharge to the said Laboratory to expedite the submission of the report after necessary report after necessary examination/comparison etc.