Delhi High Court
Shri Ganga Ram Thr. Lrs vs Sh. Ram Chander on 3 September, 2012
Author: M.L. Mehta
Bench: M.L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) No.986/2012 with CM Nos.15303-304/2012
Date of Decision: 03.09.2012
Shri Ganga Ram Thr. LRs ...... Petitioners
Through: Mr. N.S. Dalal, Adv.
Versus
Sh. Ram Chander ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
1. This petition under Article 227 of the Constitution impugns order dated 17th August, 2012 of the PO, MACT/ADJ(N), Delhi whereby application under Order 41 Rule 27 read with Section 151 CPC of the petitioners was dismissed. The petitioners are the LRs of deceased Ganga Ram, who was defendant No.1 in the suit that was filed against him by the respondent. During the pendency of the suit, he expired and his LRs, i.e., the petitioners herein were impleaded. The said suit was decreed vide judgment dated 22nd CM(M) No.986/2012 Page 1 of 4 September, 2011. The petitioners/LRs carried the matter in appeal vide RCA No.47/11 wherein they filed application under Order 41 Rule 27 CPC for leading additional evidence including that of the Patwari and the Girdawar. The said application was dismissed vide the impugned order which is under challenge in the instant petition.
2. I have heard the learned counsel for the petitioner and perused the records.
3. It is notd that in the suit, defendant No.1 Ganga Ram had filed his affidavit of evidence, but his cross was deferred. He, however, did not appear for cross examination and consequently on 2nd May, 2006, the Trial Court ordered his affidavit of evidence not to be read in evidence. The submission of the learned counsel for the petitioner is that defendant No.1 died on 5th September, 2007 due to cancer and the petitioners were aware about his affidavit of evidence being on record and so could not tender the affidavit, as also could not examine any other witnesses. It is noted by the learned ADJ, and which is not controverted by the learned counsel for th petitioners that after the death of defendant No.1 Ganga Ram, his LRs, namely the petitioners were brought on record on 26th May, CM(M) No.986/2012 Page 2 of 4 2008. Thereafter, they got several opportunities and the matter was proceeded for arguments. They availed several opportunities for arguments and ultimately filed written submissions on 26th May, 2011. Not only that, they also sought time for filing written submissions in rebuttal to that of the plaintiff. Thereafter, they stopped appearing and the matter was reserved for judgment, which was ultimately delivered on 22nd September, 2011. The learned ADJ has noted, and rightly so, and which is also not controverted by the counsel for the petitioners that in the written submissions which was filed, the reference has been made in detail to the evidence on record, which would clearly show that they were well aware of the absence of their evidence on record. No request was made by them at any point of time since from the day of their being on record on 26th May, 2008 till the decision rendered by the Trial Court. It is only for the first time that a request was made by way of instant application for leading additional evidence. The provisions of Order 41 Rule 27 do not come to the help of the petitioners as a matter of routine or of right. Unless the case comes in any of the sub-clauses of sub-Rule (1) of Rule 27, the Appellate Court cannot entertain the CM(M) No.986/2012 Page 3 of 4 request for production of additional evidence, oral or documentary. It was not their case that the Trial Court had refused to admit their evidence, which ought to have been admitted. It is also not their case that they could not produce the evidence despite exercise of due diligence or that such evidence was not within their knowledge or could not be produced despite exercise of due diligence at the time of the decree was passed. From the proceedings, as noted above, it would be seen that they were well aware of the fact of the affidavit of evidence of Ganga Ram being on record and also that there was no other evidence led by them. They had not demonstrated exercise of any due diligence or that the evidence sought to be produced was not in their knowledge.
4. I do not see any illegality or infirmity in the impugned order. The petition has no merit and is dismissed in limine.
M.L. MEHTA, J.
SEPTEMBER 03, 2012 skw CM(M) No.986/2012 Page 4 of 4