Punjab-Haryana High Court
Bhim Singh And Another vs Harbans Singh And Others on 18 November, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CR No.6999 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CR No.6999 of 2013
Date of Decision:18.11.2013.
Bhim Singh and another
....Petitioners
Versus
Harbans Singh and others
.....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether reporters of the local papers may be allowed to
see the judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Mr. Kuldip Sanwal, Advocate,
for the petitioners.
****
PARAMJEET SINGH, J.
Instant civil revision has been filed under Article 227 of the Constitution of India for setting aside the order dated 11.10.2013 passed by learned Additional District Judge, Fast Track Court, Patiala whereby application moved by respondent no.1-appellant under Order 41 Rule 27 read with Section 151 CPC for adducing additional evidence, has been allowed.
Shorn of unnecessary details, the facts relevant for disposal of Kumar Parveen 2013.11.27 14:51 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.6999 of 2013 2 the present petition are to the effect that respondent no.1 filed suit for joint possession by way of declaration against the petitioners and others. The said suit was dismissed and appeal was preferred by respondent no.1. During the pendency of appeal, respondent no.1 filed application under Order 41 Rule 27 read with Section 151 CPC for producing certified copy of mutation No.47-A of 1997 B.K in respect of inheritance of Jawahar Singh by way of additional evidence. The petitioners filed reply and contested the said application. Vide impugned order dated 11.10.2013, learned Additional District Judge, Fast Track Court, Patiala has allowed the said application. Hence, this revision petition.
I have heard learned counsel for the petitioners and perused the record.
Learned counsel for the petitioners has vehemently contended that mutation sought to be produced by way of additional evidence came into existence in 1997, but respondent no.1 had never bothered to produce the same in other litigations pending in between the parties. The learned counsel has further contended that the document sought to be produced by way of additional evidence is inadmissible in evidence and it cannot be relied upon solely to prove the nature of the property. Respondent no.1 has failed to show that he could not produce the said document despite his due diligence.
I have considered the contentions of learned counsel for the petitioners.
Kumar Parveen 2013.11.27 14:51 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.6999 of 2013 3
By moving application for leading additional evidence in appeal, respondent no.1 wants to produce certified copy of mutation No.47-A of 1997 B.K which is a public document and relates to the suit property. The provisions of Rule 27 of Order 41 read as follows:
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 diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
Order 41 Rule 27 CPC bars leading of additional evidence by the parties in appeal except in circumstances mentioned in Sub-rule 1 of Rule 27 of Order 41. Sub-rule 1 (aa) of Rule 27 of Order 41 provides that where a party who for the reasons mentioned in sub-Rule 1(aa) could not produce the evidence in trial Court, should be allowed to produce the same before the Appellate Court. Sub-rule 1(aa) envisages the conditions which must be complied with by the party seeking to produce the additional evidence, namely, that "notwithstanding the Kumar Parveen 2013.11.27 14:51 I attest to the accuracy and integrity of this document High Court, Chandigarh CR No.6999 of 2013 4 exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him" in the trial Court. It is not one of the conditions that additional evidence can be produced only by a party which must have also led some evidence in the trial Court. Such a view would amount to introducing an additional condition not contemplated by Sub-rule 1(aa). No distinction has been made by Sub-rule 1(aa) between a party that has produced some evidence in the trial Court and one that has adduced no evidence in the trial Court. All that is required is that the conditions mentioned in Sub-rule 1(aa) must be fulfilled. It is not permissible to restrict the benefit of Sub-rule 1 (aa) of Rule 27 of Order 41 CPC, to those who have adduced some evidence in the trial Court.
In view of findings recorded by learned Appellate Court and for imparting substantial justice to the parties, I do not find any illegality or perversity in the impugned order.
Dismissed.
(Paramjeet Singh) Judge November 18, 2013 parveen kumar Kumar Parveen 2013.11.27 14:51 I attest to the accuracy and integrity of this document High Court, Chandigarh