Allahabad High Court
Anil Mehrotra vs Additional Session Judge Court No.15 ... on 17 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 2576
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 24 Case :- RENT CONTROL No. - 64 of 2015 Petitioner :- Anil Mehrotra Respondent :- Additional Session Judge Court No.15 Lucknow And Ors. Counsel for Petitioner :- Vijay Krishna Counsel for Respondent :- H.N. Tiwari,Jagdish Prasad Vaish,Nagendra Pratap Singh,Shiwa Kant Tiwari Hon'ble Irshad Ali,J.
1) Heard Sri N.K. Seth, learned Senior Counsel assisted by Sri Vijay Krishna, learned counsel for the petitioner and to Sri Shiwa Kant Tiwari, learned counsel for respondent Nos.2 to 5.
2) By means of the present writ petition, the petitioner is challenging the order passed by respondent No.1 dated 27.05.2015 permitting the additional evidence to be adduced at appellate stage in the shape of sale deed.
3) Factual matrix of the case is that respondent Nos.2 to 5 filed release application under Section 21(1)(A) of U.P. Act No.13 of 1972 against the petitioner for vacating the premises of 308/55 Jauhari Mohalla, Chowk, Lucknow. The petitioner filed written statement denying the title of respondent Nos.2 to 5 and asserted that the premises is owned by Sri Radha Krishna Mandir (Lala Shyam Lal Girdhari Lal Agarwal) and the rent is being paid to the Manager of the Jankidas Puran Chand Trust and in support thereof, filed rent receipt issued by the trust.
4) The respondent Nos.2 to 5 filed affidavit and the petitioner also filed his affidavit. The prescribed authority after leading evidence and recording statement, allowed the release application against the petitioner vide order dated 31.07.2014.
5) Feeling aggrieved, the petitioner filed appeal under Section 22 of U.P. Act No.13 of 1972 before the District Judge, Lucknow, which has been admitted and transferred to the Court of Additional District Judge, Court No.15, Lucknow for disposal. The respondent Nos.2 to 5 filed an application for taking copy of the sale deed as additional evidence under Order 41 Rule 27 CPC. The Additional District Judge vide impugned order dated 27.05.2015 allowed the application, which has been impugned in the present writ petition.
6) Submission of learned Senior Counsel for the petitioner is that under the provisions of Order 41 Rule 27 CPC, there are exceptions, which have not been explained in the application that how the fact in regard to sale deed came into knowledge of respondent Nos.2 to 5 and due to non disclosure of this fact, the order passed on the application is illegal. The appellate court has also not recorded finding on the point of Order 41 Rule 27(aa) CPC and has proceeded to allow the application. Thus, the submission is that without explaining the due diligence in not bringing on record the additional evidence, the application would not have been allowed. In support of his submission, he placed reliance upon following judgments:
(i) Rajkali Vs. State of U.P. and others; 2014 (1) JCLR 494, paragraph Nos.4, 7, 8 and 9, (ii) Kailash Chandra Vs. Additional District Judge, Sitapur; 2013 (2) ARC 797 and the last judgment has been produced, which was noticed by the Additional District Judge while passing the impugned order i.e. Union of India Vs. Ibrahim Uddin and another; 2012 (8) SCC 148, para 36, 39 to 46, 48, 52 and 53.
7) On the other hand, learned counsel for respondent Nos.2 to 5 submitted that in the application moved under Section 41 Rule 27 CPC, it has been disclosed that the respondents applied for certified copy of the sale deed and after obtaining it, they moved the application for taking as additional evidence.
8) He further submitted that the Additional District Judge has recorded finding in regard to due diligence in regard to non filing of sale deed at the trial stage, therefore, his submission is that there is no illegality or infirmity in the order under challenge by the petitioner.
9) He next submitted that Hon'ble Supreme Court in the case of Union of India (Supra) has considered the ingredients required permitting additional evidence to be adduced at appellate stage and taking notice of that, the judgment was passed by the Additional District Judge by recording cogent reasons, thus, the writ petition being misconceived is liable to be dismissed.
10) Having heard the rival contentions advanced by learned counsel for the parties, I perused the material on record as well as the impugned order under challenge in the writ petition and the judgments relied upon by learned counsel for the petitioner.
11) To resolve the controversy involved in the present writ petition, the provisions contained under Order 41 Rule 27 CPC is being quoted below:
"27. Production of additional evidence in Appellate Court - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due deligence, such evidence was not witin 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."
12) On perusal of the provisions referred herein above, it is apparent on the face of it that there are three contingencies, which are required to be taken into consideration while accepting the additional evidence.
13) The judgments relied upon by learned Senior Counsel for the petitioner on the point involved in the matter are as under:
(i) Rajkali Vs. State of U.P. and others (Supra) :
"4. The second relief claimed in this writ petition is against the impugned order dated 10.07.2013, whereby the appellate court has dismissed the application 19Ga of the appellant petitioner filed under Order XLI Rule 27 of the Code of Civil Procedure. Learned counsel for the petitioner has submitted that although there is no mention of the sale deed dated 27.01.2006 in the plaint nor nay relief has been sought against the said sale deed, the additional document which the petitioner appellant wanted to bring on record under order XLI Rule 27 of the Code of Civil Procedure has direct relation with the unregistered agreement of sale of 1999, which was assailed in the suit itself. He therefore, states that by rejection of the application Under Order XLI Rule 27 of the Code of Civil Procedure, the court below has committed an illegality. He does not dispute that the appeal is still pending.
7. The second ground for which the application under Order XLI Rule 27 of the Code of Civil procedure has been rejected is that the Khatauni which is sought to be brought on record relating to the sale deed of 2006 does not find mention in the plaint and there is no recitation about the sale deed of 2006 in the plaint as such the Khatauni based thereupon has no relevance in the present appeal, hence cannot be admitted in evidence. It has also been recorded that only such document can be taken as an additional evidence at the appellate stage which enable the court to effictively decide the real controversy between the parties. However, since there is no pleading relating to the sale deed of 2006 then the Khatauni relating thereto cannot be admitted in evidence.
8. No error can be found in the view taken by the appellate court in the impugned order dated 23.08.2008, whereby the application 19Ga of the appellant petitioner under Order XLI Rule 27 of the Code of Civil Procedure has been rejected. There is no merit in this writ petition. It is accordingly dismissed.
9. No order is passed as to costs."
(ii) Kailash Chandra Vs. Additional District Judge, Sitapur (Supra):
"The scrutiny of said provision indicates that the parties to appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate Court except under three circumstances; (i) when the Trial Court whose decree is under challenge in appeal has refused to admit evidence which ought to have been admitted, (ii) when the party seeking additional evidence, establishes before the appellate Court that in spite of exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him before the Trial Court and (iii) when the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial clause.
The case of petitioner at the most can be examined under exception no. (ii) as given above.
Learned counsel for petitioner has laid great stress on his argument that once he had pleaded before the Trial Court about the said evidence and the said evidence could not be produced, he should be allowed to produce the said evidence at the stage of appeal.
The scope of Order XLI Rule 27 of the Code has been examined in detail by the Apex Court in the case of Union of India Vs. Ibrahim Uddin and Another (supra) wherein the Apex Court has categorically held that in case there is inadvertence on the party of any party or there was inability to understand the legal issue involved or due to wrong advice of a pleader or negligence of a pleader or that a party did not realize the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
It is to be observed that the appellate Court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. It is the onus on the part of the party who wants to rely on evidence to prove it at the relevant time. In case a party has failed to discharge the onus, the Court cannot in such a case permit the said party to improve his case by producing additional evidence.
In the case of Vimal Chand Ghevarchan Jain and others (supra), reliance on which has been placed by learned counsel for petitioner, the Apex Court has no doubt observed that once the written statement was permitted to be amended the additional evidence pursuant thereto was also permitted to be adduced. The first appellate Court had a duty to properly appreciate the evidence in the light of the pleadings of the parties. It is true that when a pleading is amended, it takes effect from the date when the original one is filed.
The appellate Court in exercise of its discretionary jurisdiction and subject to fulfillment of the conditions under Order XLI Rule 27 of the Code may allow the parties to adduce additional evidence. However, it does not mean that the application under Order XLI Rule 27 of the Code can be allowed in routine manner. The Court has to be satisfied while allowing such application as to whether the ingredients of Order XLI Rule 27 of the Code are fulfilled or not.
As such, even if the petitioner had mentioned in his pleadings before the Trial Court about the said evidence but the same was not produced at the stage of evidence, the same could not be allowed to be brought on record at the appellate stage by moving application under Order XLI Rule 27 of the Code.
In the given facts and circumstances of the case in hand, I am of the view that the application moved under Order XLI Rule 27 could not have been allowed by the appellate Court, as such, I do not find any infirmity or illegality in the order impugned. "
(iii) Union of India Vs. Ibrahim Uddin and another (Supra)para 39 to 46, 48, 52 and 53:
"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. (Vide: K. Venkataramiah v. A. Seetharama Reddy, Municipal Corpn. Of Greater Bombay v. Lala Pancham, Soonda Ram v. Rameshwarlal and Syed Abdul Khader v. Rami Reddy.
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 Srivastava and S. Rajagopal v. C.M. Armugam.
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.
41. 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 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 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 rejected. (Vide: State of Orissa v. Dhaniram Luhar, State of Uttaranchal v. Sunil Kumar Singh Negi, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd).
45. In City Improvement Trust Board v. H. Narayanaian, while dealing with the issue, a three judge Bench of this Court held as under: (SCC p. 20, para 28) "28. 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. Radrayya S. Mathad.
46. A Constitution Bench of this Court in K. Venkataramiah, while dealing with the same issue held: (AIR p. 1529, para 13) "13. It is very much to be desired that the courts of appeal should not overlook the provisions of clause (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.
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 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 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.
52. Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.
53. In the instant case, the application under Order XLI Rule 27 CPC was filed on 6.4.1998 and it was allowed on 28.4.1999 though the first appeal was heard and disposed of on 15.10.1999. In view of law referred to hereinabove, the order dated 28.4.1999 is just to be ignored."
14) On perusal of the aforesaid judgments, it is well established that the additional evidence can be placed at appellate stage; if the trial court has refused to take additional evidence which ought to have been admitted, 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 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.
15) On perusal of the provisions contained under Order 41 Rule 27(aa) CPC and the judgments referred herein above, it is apparent that respondent Nos.2 to 5 have no-where disclosed the due diligence in as much as how they came to know about the sale deed and could not file the same before the trial court. No reasons whatsoever has been stated in the application, thus, the appellate court while considering the application has failed to appreciate the ingredients, which are required to be considered under Order 41 Rule 27 CPC.
16) On bare perusal of the order impugned, it is evident that the appellate court has not recorded satisfaction in allowing the application under Order 41 Rule 27 CPC.
17) After thoughtful consideration of the provisions contained under Order 41 Rule 27 CPC and the judgment placed before the Court, this Court is of the opinion that the Additional District Judge has committed manifest error of law in passing the impugned order. The Additional District Judge has failed to appreciate the ingredients under Order 41 Rule 27 (aa) CPC and has proceeded to allow the application in a very cursory manner.
18) In view of the above, the impugned order dated 27.05.2015 is hereby set aside.
19) The writ petition succeeds and is allowed.
20) The Additional District Judge, Lucknow is directed to reconsider the application filed by respondent Nos.2 to 5 and to pass appropriate order in accordance with law as per observation made above and to decide the same within a period of six months from the date of production of a certified copy of this order.
21) The parties are, however, restrained to seek unnecessary adjournments in the matter.
22) No order as to costs.
Order Date :- 17.9.2019 Adarsh K Singh