Himachal Pradesh High Court
Dev Raj And Others vs Mahant Rajinder Gir And Others on 11 May, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 650 of 2005.
Reserved on: 07.05.2016.
.
Decided on: 11.05.2016.
Dev Raj and others ......Appellants.
Versus
Mahant Rajinder Gir and others. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
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For the appellant(s): Mr. Chander Shekhar Sharma, Advocate.
For the respondents: Mr. K.D.Sood, Sr. Advocate, with Mr. Dhananjay Sharma,
Advocate, for respondent No. 2.
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Justice Rajiv Sharma, J.
This regular second appeal is directed against the judgment and decree of the learned District Judge, Hamirpur, H.P., dated 1.10.2005, passed in Civil Appeal No. 18 of 2004.
2. "Key facts" necessary for the adjudication of this regular second appeal are that the appellants-plaintiffs (hereinafter referred to as the plaintiffs), have instituted a suit for declaration with consequential relief of permanent prohibitory injunction against the respondents-defendants (hereinafter referred to as the defendants) on the averments that defendant No. 1 was the owner-in-possession of the land, as detailed in the plaint. The defendant No. 1 had rented out/leased the suit land in favour of the plaintiffs before 1986. They were paying the rent to defendant No. 1 for use and occupation of the suit land. They have constructed shops over the suit land.
The suit land was transferred in favour of defendant No. 2. It is further averred that they were tenants in possession over the suit land. Defendant ::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 2 No. 2 since August, 1999 has threatened to dispossess them from the suit land and demolish their shops. The defendant No. 2 was sought to be .
restrained from interfering with the possession of the plaintiffs over the suit land and decree of permanent prohibitory injunction was sought. In case defendant No. 2 was successful in dispossessing the plaintiffs from the suit land, a decree for possession was sought.
3. Defendant No. 1 has admitted the claim of the plaintiffs. He of stated that he was owner-in-possession of the suit land. He had rented out the suit land to the plaintiffs. He has denied the ownership of defendant No. rt 2 over the suit land. Defendant No. 2 has also resisted the suit. Defendant No. 2 has stated that earlier defendant No. 1 was owner of the suit land, however, with the enforcement of H.P. Hindu Public Religious Institutions and Charitable Endowments Act, 1984 (hereinafter referred to as the Act), defendant No. 2-Baba Balak Nath Trust was created. The right, title or interest, if any, of defendant No. 1 in the suit land stood transferred in favour of defendant No. 2. Defendant No. 2 denied the possession and tenancy of the plaintiffs under defendant No. 1. The plaintiffs were ranked trespassers.
The plaintiffs were not entitled to any relief, much less to the discretionary relief of permanent injunction.
4. The plaintiffs filed replication. The issues were framed by the learned Civil Judge (Jr. Divn.) Barsar, Distt. Hamirpur on 15.2.2001. He dismissed the suit on 13.1.2004. The plaintiffs, feeling aggrieved, preferred an appeal against the judgment and decree dated 13.1.2004. The learned ::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 3 District Judge, Hamirpur dismissed the same on 1.10.2005. Hence, this regular second appeal.
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5. The regular second appeal was admitted on the following substantial question of law on 16.3.2006:
"1. Whether the findings of the trial Court and first appellate Court that the plaintiffs were inducted tenants after the taking over of the temple under the H.P. Hindu Public Religious of Institutions and Charitable Endowments Act, 1984 are dehors the evidence on record?"
6. Mr. Chander Shekhar Sharma, Advocate, appearing on behalf of rt the appellants, on the basis of the substantial question of law framed, has vehemently argued that the judgment impugned is based on conjectures and surmises. He also argued that his clients have proved their tenancy. The vesting of land in favour of defendant No. 2 under the H.P. Hindu Public Religious Institutions and Charitable Endowments Act, 1984 will change the status/title/possession of the plaintiffs as tenants. His clients had been issued electricity and water connections and were also issued receipts by defendant No. 1. On the other hand, Mr. K.D.Sood, Sr. Advocate, has supported the judgments and decrees passed by both the courts below.
8. I have heard learned counsel for both the sides and have also gone through the judgments and records of the case carefully.
9. PW-1 Dev Raj deposed that the suit land was 14-15 kanal. His shop existed on Kh. No. 2302/904. The owner of the land was defendant No.
1. He was inducted as tenant by defendant No. 1. They have constructed the shops on their land. The rent was Rs. 300/- per annum. He was paying the ::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 4 rent regularly to defendant No. 1. He has constructed pucca shops on the land. In his cross-examination, he denied that the Trust was the owner of the .
land. He has now started paying rent to the Trust. They have taken the land from defendant No.1. He denied the suggestion that they were not in possession over the suit land. He admitted categorically that on receipts of Ext. PW-1/A and PW-1/B, no date has been mentioned. He was also not aware as to who scribed the receipt(s). Stated that receipts were given to him of by defendant No. 1.
10. PW-2 Charan Dass deposed that his kiosk existed on the spot.
rt The land was owned by defendant No. 1. He has taken the land on rent. He was paying rent for the kiosk. He proved receipts Ext. PW-2/A and PW-2/B. He was paying Rs. 400/- per annum as rent. In his cross-examination, he admitted that when consolidation took place, the land was transferred to the Trust. He did not know when the consolidation took place. He has taken the receipts in the year 1986, but he did not remember the date. Second receipt was obtained by him in the year 1998, but he did not know the date. He again admitted that the land has been transferred to the Trust.
11. PW-3 Parkash Chand deposed that he has also constructed the kiosk on the land. The land was owned by defendant No. 1. It was given to him on rent in the year 1985. He was paying rent of Rs. 500/- per annum.
In his cross-examination, he could not narrate the khasra number. They have never paid any rent to the Trust. It was paid to defendant No. 1. He further admitted that the land was transferred from Mahant to the Trust. He ::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 5 did not know the date of the receipt. However, it was written by defendant No. 1.
.
12. PW-4 Desh Chander testified that his shop existed on the suit land. The suit land was owned by defendant No. 1. He has taken this land in the year 1985. He was paying Rs. 600/- per annum to defendant No. 1. He placed on record receipts Ext. PW-4/A and PW-4/B. In his cross-
examination, he deposed that he has never paid any rent to the Trust. He of has taken receipt in the year 1983, but did not remember the date. He has written the receipt himself.
rt
13. PW-5 Shambhu Ram deposed that the suit land was owned by defendant No. 1. They have constructed shops on the same. There are about 30-32 shops. They were running shops since 1982. He was paying Rs. 600/-
per annum to defendant No. 1. In his cross-examination, he admitted that they have written the receipts themselves. They used to take collective receipts of 4-5 years.
14. PW-6 Nika Ram deposed that the suit land was owned by defendant No. 1. They were paying rent to defendant No. 1. In his cross-
examination, he deposed that all the shop keepers were inducted by defendant No. 1, though he has admitted that the land has been transferred from Mahant to the Trust.
15. PW-7 Lekh Ram deposed that the land was owned by defendant No. 1. The plaintiffs have constructed their kiosks over the same. They were paying rent to Mahant. In his cross-examination, he deposed that they have never paid rent to the Trust.
::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 616. PW-8 Subhash Chand has identified his signatures over map Ext.
PW-8/A. .
17. DW-1 Mehar Singh deposed that he was Special Power of Attorney of defendant No. 1 w.e.f. 1983. He has filed an affidavit. According to the affidavit, the plaintiffs were inducted as tenants over the suit land by Shiv Gir Mahant to carry on business. The plaintiffs constructed their shops/kiosks.
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18. DW-2 Chaudhary Ram also filed an affidavit corroborating the statement of DW-1 Mehar Singh. DW-1 Mehar Singh and DW-2 Chaudhary rt Ram, in their cross-examination admitted that Mahant has never been paid rent in their presence.
19. DW-3 Mahinder Singh deposed that the suit land was owned by Baba Balak Nath Trust. The plaintiffs have never paid any rent to the Trust.
In his cross-examination, he deposed that earlier the shops were owned by Mahant and thereafter these stood transferred to the Trust.
20. DW-4 Hari Chand has also led evidence by filing affidavit. It is averred in the affidavit that the suit land was owned by the Trust. In his cross-examination, he deposed that as per the documents, the plaintiffs were neither tenants nor they were paying any rent. The Trust was created in the year 1987.
21. DW-5 Dev Raj, Temple Officer deposed that the suit land was owned by the Trust. The property was mutated in the name of the Trust vide mutation No. 1353 dated 2.1.1990. The plaintiffs have not filed any appeal against the same. The plaintiffs were never inducted as tenants.
::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 722. The plaintiffs have not stated specifically on which date, month and year they were inducted as tenants in possession of suit land by .
defendant No. 1. The only averment made is that they were in possession of the suit land as tenants before 1986. The plaintiffs have also not given the particular area, of which, they have become tenants under defendant No. 1.
The tenancy/lease has not been recorded in any revenue record. In the receipts produced by the plaintiffs, the date has not been mentioned. It has of also come on record that the plaintiffs used to obtain collective receipts after a gap of few years. In case they were paying regular rent, they should have rt obtained receipts regularly. Few witnesses have also admitted that they have prepared the receipts themselves.
23. Now, as far as issuance of water and power connection is concerned, the bills were not proved before the Courts below. The defendant No. 1 has filed Writ Petition No. 338/1987 against the State of H.P. The Writ Petition was disposed of vide judgment dated 25.4.1988. The Financial Commissioner, Art Language and Culture Department was directed to determine the claim, if any, of defendant No. 1 to the suit property. The claim of defendant No. 1 was considered and was rejected vide order dated 13.3.1999. In fact, the suit property stood vested in defendant No. 2 free from all encumbrances. The plaintiffs have failed to prove tenancy over the suit land. They have not given the date as to when they were inducted as tenants. The receipts obtained by them are also not in accordance with law.
::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 824. Defendant No. 1 has not appeared in the witness box. He was the best witness to prove the issuance of receipts etc. to the plaintiffs. The .
plaintiffs have also not produced any record of electricity bills or water bills.
25. According to the revenue record Ext. P-2, jamabandi for the year 1984-85, the land has been shown in the ownership and possession of defendant No. 1 in the remarks column, which has been shown to be vested in the Baba Balak Nath Trust. In the jamabandi for the year 1989-90, Ext. P-
of 3, defendant No. 2 has stepped into the shoes of defendant No. 1 qua entry in respect of suit land. The same entry was reiterated in jamabandi for the year rt 1994-95. The plaintiffs were never recorded in possession of the suit land/shops. The mutation was attested in favour of defendant No. 2 vide mutation No. 1353 dated 2.1.1990. The case of defendant No. 1 was that he was owner but has failed to prove ownership of the suit land on the basis of revenue record.
CMP No. 1123 of 2005.
26. The plaintiffs have also moved an application under Order 41 Rule 27 CPC bearing No. 1123 of 2005. The plaintiffs have placed on record the photographs depicting that they have constructed shops/kiosks over the suit land. They have also placed on record copies of electricity bills. The purpose of application under Order 41 Rule 27 CPC is not to fill up the lacunae in the evidence. These receipts should have been produced before the Courts below during the trial of the suit. They were also required to prove that despite due diligence they could not place the water and electricity bills before the trial Court and the first Appellate Court.
::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 927. Their Lordships of the Hon'ble Supreme Court in State of Gujarat Vs. Mahinder Kumar AIR 2006 SC 1864 have held as under:
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"10. We shall first deal with the appeals preferred against the judgment and order of the High Court rejecting Civil Application Nos. 964 and 1150 of 2002 filed by the appellants herein for adducing additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. The documents sought to be produced were contained in Annexure I to the applications. The applications were opposed by the respondents. It was submitted on behalf of the appellants that the applications may be treated as one under Order XLI Rule 27(1)(b) of the Code of Civil of Procedure, apparently because the other provisions or the rule did not apply to the facts and circumstances of the case. The High Court noticed that a similar Civil Application being No. 4849 of 2000 had been filed earlier when this appeal had been placed for hearing before another Division Bench of the High rt Court, but the said application was rejected by order dated June 22, 2000. The High Court further found that Rule 27(1)(b) of Order XLI can be invoked only if the 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. In the instant case it was not as if the additional evidence was required by the Court to enable it to pronounce judgment and, therefore, additional evidence was sought to be adduced for "substantial cause" since serious prejudice would be caused to the appellants if the additional evidence was not permitted to be adduced. Reliance was placed on the judgment of this Court in Municipal Corporation of Greater Bombay vs. Lala Pancham and others : AIR 1965 SC 1008 wherein this Court held that though the appellate Court has the power to allow a document to be produced and a witness to be examined under Order XLI Rule 27 CPC, 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 did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for purposes of pronouncement of judgment in a particular way. The High Court referred to the earlier proceedings before various authorities and came to the conclusion that though the appellants had sufficient opportunity to bring the evidence on record,, for reasons best known to it, the State did not produce the entire evidence before the trial court and it was only 8 years after the dismissal of the suit that the applications were filed for adducing additional evidence in the appeal. The ::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 10 High Court, therefore, dismissed the applications for adducing additional evidence.
11. We find no error in the approach of the High Court. We have .
earlier noticed the long history of litigation which preceded the filing of the suit. The documents sought to be brought on record are not documents which were discovered later or came into existence after the filing of the suit. The documents are part of the Government records and they could have been produced in the suit.
12. Mr. Sorabjee appearing on behalf of the respondents rightly submitted that Order XLI Rule 27 of the Code of Civil Procedure of cannot be invoked by a party to fill up the lacunae in his case. The State found itself in a dilemma when confronted with two sets of documents conflicting with each other. There was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently rt made by the State or that such evidence was not within its knowledge. In fact no ground whatsoever was made out for adducing additional evidence, and the sole purpose for which the State insisted upon adducing additional evidence was to persuade the Court to accept the point of view urged on behalf of the State, since the evidence on record did not support the case of the appellants/State. Having considered all aspects of the matter we are satisfied that the High Court rightly rejected the applications filed by the State for adducing additional evidence at the stage of appeal which was intended only to fill up the lacunae in its case."
28. Similarly, in Karnataka Board of Wakf Vs. Govt. of India 2004 (10) SCC 779, their Lordships of the Hon'ble Supreme Court have held that a party is not entitled to produce additional evidence unless it is shown that evidence could not be produced before the learned trial Court despite exercise of due diligence. Their Lordships have explained the scope of additional evidence under Order 41 Rule 27 as under:
"6. In the circumstances, the learned counsel for the appellant, reiterated the claim made before the High Court that they should be permitted to adduce further evidence before the court to substantiate their claim but when the matters were ::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 11 pending before the Trial Court and the High Court they had ample opportunity to do so. If they had to produce appropriate documents, they could have done so and also it is not clear as to .
the nature of the documents which they seek to produce which will tilt the matter one way or the other. The scope of Order XLI, Rule 27, CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents of and such documents are required to enable the court to pronounce proper judgment. In this view of the matter, we do not think there is any justification for us to interfere with the orders rt of the High Court. However, in view of the arguments addressed by the learned counsel for the appellant, we have also gone into various aspects of the matter and have given another look at the matter and our findings are that the view taken by the High Court is justified. However, one aspect needs to be noticed. The High Court need not have stated that the first respondent is entitled to the relief even on the basis of adverse possession. We propose to examine this aspect."
29. It is settled law by now that party guilty of remissness in not producing evidence in trial court, cannot be allowed to produce it in appellate court. There must be satisfactory reasons for non-production of the evidence in trial court seeking production thereof in appellate court. Their Lordships of the Hon'ble Supreme Court in a recent judgment in Union of India versus Ibrahim Uddin and another, (2012) 8 SCC 148 have 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 ::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 12 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 of Khader v. Rami Reddy & Ors., AIR 1979 SC 553).
37. 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 rt 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).
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. [Vide: Lala Pancham & Ors. (supra) ].
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 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 ::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 13 Srivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101).
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 of apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.
42. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It rt 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 and not mandatory, if the reception of such evidence can be justified under the rule.
43. 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 comp1iance with the requirement as to recording of reasons.
44. It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the ::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 14 justice - delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It .
introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity.
The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been of rejected. (Vide: State of Orissa v. Dhaniram Luhar, AIR 2004 SC 1794; State of Uttaranchal & Anr. v. Sunil Kumar Singh Negi, AIR 2008 SC 2026; The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity & Ors., AIR 2010 SC 1285; and Sant Lal Gupta & Ors. v. Modern Cooperative Group rt Housing Society Limited & Ors., (2010) 13 SCC 336).
45. In The Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H. Narayanaiah etc. etc., AIR 976 SC 2403, while dealing with the issue, a three judge Bench of his Court held as under:
"We are of the opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it an opportunity should have been given to the appellant to rebut any inference arising from its insistence by leading other evidence." (Emphasis added).
A similar view has been reiterated by this Court in Basayya I. Mathad v. Rudrayya S. Mathad and Ors., AIR 2008 SC 1108.
46. A Constitution Bench of this Court in K. Venkataramiah (Supra), while dealing with the same issue held:
"It is very much to be desired that the courts of appeal should not overlook the provisions of cl. (2) of the Rule and should record their reasons for admitting additional evidence..... The omission to record reason must, therefore, be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory."
(Emphasis added) In the said case, the court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. In such a fact- situation, the order allowing such application did not vitiate for want of reasons.
::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 1547. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be .
allowed to be permitted on record such application may be allowed.
48. To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document of in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate rt court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.
Stage of Consideration :
38. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court.
(Vide: Arjan Singh v. Kartar Singh & Ors., AIR 1951 SC 193; and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053)."
::: Downloaded on - 15/04/2017 20:19:55 :::HCHP 1630. The plaintiffs have failed to prove landlord-tenant relationship.
Defendant No. 1 has not appeared in the Court as a witness. There is no .
mention of dates on the receipts produced by the plaintiffs. The plaintiffs have not even mentioned the specific date as to when they were inducted as tenants. The averments made in the written statement are collusive in order to gain common object. Thus, the judgments cited by Mr. Chander Shekhar Sharma, learned Advocate appearing on behalf of the plaintiffs i.e. of Mahendra Manilal Nanavati vs. Sushila Mahendra Nanavati, reported in AIR 1965 SC 364, Bharat Singh and others vs. Mst. Bhagirathi, reported rt in AIR 1966 SC 405, Vathsala Manickavasagam and others vs. N. Ganesan and another, reported in (2013) 9 SCC 152, and Ambica Prasad vs. Mohd. Alam and another, reported in (2015) 13 SCC 13, under Section 58 as well as other provisions of the Transfer of Property Act, 1882 are not applicable in the facts and circumstances of the instant case.
31. The learned Courts below have correctly appreciated the oral as well as the documentary evidence available on record. The plaintiffs have failed to prove their tenancy over the suit land. The substantial question of law is answered accordingly.
32. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.
May 11, 2016, ( Rajiv Sharma ),
(karan) Judge.
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