Patna High Court - Orders
Bibi Aisha Begam & Ors vs Bibi Shahnaz Begam & Anr on 3 March, 2015
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
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IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.333 of 1992
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1. Bibi Aisha Begam wife of Syed Zaffar Hasnain @ Lal Babu, deceased
2. Syed Iftekhar Ahmad @ Saheb
3. Syed Imteyaz Ahmad @ Chhotey, both sons of Syed Zaffar Hasnain @
Lal Babu, deceased, residents of Mohalla-Gyan Babu Chowk P.S. &
P.O. Motihari in the town and District of East Champaran.
4. Bibi Shahjahan Begam daughter of Syed Zaffar Hasnain @ Lal Babu,
deceased wife of Syed Md. Hassan @ Chand Babu resident of village-
Mathurapur P.S. Turkaulia, Distt-East Champaran at present, Mohalla-
Gyan Babu Chowk, Rani Kothi, P.O & P.S. Motihari Town, Distt-East
Champaran
Defendants .... .... Appellant/s
Versus
1. Bibi Shahnaz Begam wrongly describing herself as daughter of Syed
Zaffar Husnain @ Lal Babu, deceased, wife of Jamil Akhtar @ Jawed,
resident of Mohalla Buchar Toli, Motihari Town, P.O. & P.S. Motihari,
Distt-East Champaran.
....... Plaintiff .... .... Respondent/s
2. Bibi Shamima Khatoon wife of Md. Shafique, Resident of Mohalla
Miscott Motihari Town, P.O & P.S. Motihari, Distt-East Champaran
......... Defendant........Respondent
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Appearance :
For the Appellant/s : Mr. Raj Kishore Prasad
Mr. Neeta Chaudhary
Mr. Sanjay Priya
Mr. Anjani Kumar Sharan, Advocates
For the Respondent/s : Mr. Rajendra Narain, Sr. Advocate
Mr. Uma Kant Sukla, Adv
Mr. Pandit Jee Pandey, Adv.
Mr. Virendra Kumar, Adv.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
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57 03-03-2015Defendants are appellants while plaintiff is respondent.
2. The Court is engaged in hearing argument at the end of appellants/defendants for the last so many days and during course thereof, while referring the evidence adduced on behalf of respondent/plaintiff together with the evidence, adduced on behalf of appellants/defendants over the vital issue relating to identification of the Respondent/plaintiff that too in the background of aberration by the learned trial court in properly exercising application of Section 165 of the Evidence Act, at an appropriate stage of trial leaving a gorge and on account thereof, Court felt assistance of respective counsel whether at the present moment application of Order XLI Rule 27 (1) (b) will be justifiable? Both the parties have properly assisted the Court by their lucid arguments coupled with relevant citations.
3. For better appreciation of requirement in terms of Order XLI Rule 27 (1) (b) of the CPC, the facts of the case have to be taken note of.
4. Furnishing pedigree of the family at the foot of the plaint Respondent/Plaintiff (henceforth plaintiff) shown herself to be daughter of Syed Zafar Husnain @ Lal Babu who died leaving behind heirs shown thereunder including plaintiff, as well as properties so detailed under different schedules of the plaint 3 wherein plaintiff has got share as per Mahomedan Law and so asked for partition, which the appellants/defendants (hereinafter defendants) declined as the plaintiff married with Javed against the will and wish of defendants who are none else than mother, brother and sister of the plaintiff.
5. Appellants/defendants, after their appearance, filed WS wherein apart from other grounds, it has also been pleaded that Sahnaz Hussain was daughter of late Sayed Zaffar Hussain, who gone missing and since thereafter, is traceless. The present plaintiff, claiming as Shahnaz Begam is not the daughter of Syed Zaffar Husnain @ Lal Babu rather is an imposter. After having the respective pleadings on record, documents filed on behalf of respective parties, framing of issues, while the evidence of plaintiff, PW-39 was going on, an amendment was sought for in the WS wherein it has specifically been averred that while plaintiff has come in the dock to depose, the defendant has occasion to see the plaintiff and then, they came to know that plaintiff is a stranger to the family whose real name is Rabal Bai whose mother‟s name is Most. Sagaro and is a resident of Bokano Village and is a dancer. She has been used as an imposter at the end of Jawed to grab the property taking the misfortune of the family as boon.
6. So, from the WS it is apparent that though presence of Shahnaz Begam to be daughter of Syed Zaffar Husnain @ Lal 4 Babu has been admitted, however, with a story of her disappearance as well as untraceable till today. In the aforesaid background, the status of plaintiff has been de-recognized, which, at the time of her examination as PW-39, further been glisten with specific identity by way of amendment of WS, and on that very aspect, plaintiff, PW-39, was recalled to controvert the theme brought up by way of amendment in the WS.
7. It is also evident from the record that witnesses have also been examined including exhibit of documents at the side of plaintiff to support her plea, even PW-39, (plaintiff) during her examination exhibited admit card having photo affixed thereupon as Ext-14, while other witness had exhibited admission form having photo affixed thereon, Ext-32. At her end, handwriting expert has also been examined and his report is an exhibit of the record.
8. Defendants themselves have also got examined including others to disown the plaintiff to be agnation, that of theirs as well as exhibited the documents. The defendants while examining themselves as DW 432, 433 have completely negated the claim of plaintiff and deposed that she was not at all admitted to college. Though, her handwriting over relevant documents have been challenged by way of examination of handwriting expert as well as exhibit of his report. However, no photograph of Sahnaz, 5 having under consanguinity has been exhibited on their behalf.
9. Though at the time of Ext-32, plaintiff‟s presence in Court was not noticed, however, plaintiff, while examining herself as PW-39 exhibited Ext-14, Admit Card having photo over it. Detailed cross-examination was made at the end of Defendants, including over photograph. From deposition of PW-39, it is apparent that Court had not made endeavour even in terms of Section 165 of the evidence to connect the photograph with the face of the plaintiff by questioning the plaintiff, and in the background of aforesaid lapses, encloud the issue with perplexity.
10. As stated above, presence of Shahnaz Begam has not been denied to be one of the daughters of deceased, Syed Zaffar Husnain @ Lal Babu, though suggested as who escaped and is untraceable. Because of the fact that defendants had identified the plaintiff to be imposter and further, disclosed her identity as Rabal Bai and in the aforesaid background, obligation found on the defendants to substantiate the same. However, the question now remains apart from others, proper identification of plaintiff to be the daughter of Syed Zaffar Husnain @ Lal Babu. Apart from the fact that photograph over admit card, admission form are there, but its connectivity with PW-39 (plaintiff) have not been recorded by the trial court. Hence, for want of same, plaintiff Sahnaz is the same Sahnaz d/o, deceased Syed Zaffar Husnain @ 6 Lal Babu became in mess. Therefore, the Court inquired at the present moment from the respective parties whether order for DNA test can be made in terms of Order XLI Rule 27 (1) (b) of the CPC and its report could be accepted.
11. It has been submitted on behalf of appellants/defendants that none of the parties has raised their grievance nor prayed before the Court in terms of Order XLI Rule 27(a) (aa) of the CPC and on account thereof, the Court on its own motion would not be justified in directing the parties as well as to admit any kind of evidence in terms of (b) of Order XLI Rule 27
(n) (1) CPC.
12. In order to buttress such plea, it has been submitted that before examination of plaintiff, defendants were not at all in a position to know about the identity of the plaintiff and that happens to be the reason behind filing of additional WS at the stage when so alleged plaintiff came up before the Court to depose impersonating real Sahnaz who was traceless and her identity was accordingly, ascertained to a "nautch girl". Furthermore, while she had exhibited her admit card, cross-examination over photograph having affixed thereupon was made. At that very moment, it was expected at the end of the Court to have verified the same. Having failed to do so at the end of the Court, will not give any sort of relief to the plaintiff. There are so many persons having common 7 name and parentage in the world. However, being the siblings of particular individual is an obligation of the party, who seeks relief on that very score in terms of 101 of the Evidence Act.
13. Therefore, though for the proper adjudication of the lis, the Court may desire but the said desire is to be in accordance with law. As such, the Court‟s view regarding having a DNA test of the so alleged plaintiff inconsonance with defendant and its report to be accepted in terms of Order XLI Rule 27 (1) (b) of the CPC is not at all maintainable. To support the same, referred AIR 1931 PC 143, AIR 1951 SC 193.
14. It has also been submitted that application of Order XLI Rule 27 is not meant for patching the lacunae persisting in the case of the parties as well as to create a new evidence in support of the parties. To support the same, also referred (2010) 8 SCC 633.
15. Per contra, it has been submitted on behalf of respondents/plaintiff that on account of some sort of desirability to decide the issue in its conclusiveness, the scope for additional evidence, even at the appellate stage, has been provided. The main purpose for presence of such provision is to do justice. However, it has been bifurcated in two parts. Order 41 Rule 27 (1) (a) (aa) guards the activity of the parties while Clause (b) gives an extraordinary power to the Court, to accept the evidence, if so required, in parting with the justice. That is the reason behind 8 Clause (a) (aa) contains limitation while Clause (b) lacks the same. While asking for admission of the document/examination of witnesses under Clause (a) (aa), the concerned parties have to satisfy the Court over his due diligence as well as impact of the document while under Clause (b), the Court has to form an opinion with regard to those documents, not only appears to be relevant to enable judgment rather for substantial cause also.
16. Now coming to the facts of the case, it has been submitted that had the Court, while examining the plaintiff, PW- 39 as well as exhibiting Admit Card (Ext-14) given the remark with regard to photograph whether it belonged to the person who was deposing as plaintiff or not, the present controversy would not have arisen because of the fact that there happens to be admission on the part of the defendant that Syed Zaffar Husnain @ Lal Babu had a daughter, namely, Shahnaz Begam. It has also been submitted that mother of the plaintiff, namely, Bibi Aisa Begam, one of the defendants is alive and on account thereof, the identification of plaintiff very much be ascertained by way of procuring the DNA report through Government Laboratory situated at Hyderabad. Apart from putting reliance over AIR 1931 PC 143 and AIR 1951 SC 193 cited on behalf of appellants/defendants, also referred series of decisions as reported in AIR 1963 SC 1526, AIR 1979 SC 553, AIR 2000 SC 1751 and 9 AIR 2001 SC 134.
17. Order XLI Rule 27 is in token of Section 107 of the CPC whereunder the power of appellate court has been identified. Section 107 (1) (d) speaks regarding acceptance of additional evidence, apart from others. Rule 27 is nothing but magnification of the power identifying the different categories whereunder additional evidence is to be accepted. (a) deals with the situation whereunder the trial court refuses to accept, (aa) deals with the situation whereunder the party, even on due diligence, could not be able to procure at the relevant stage of the trial while
(b) is the power vested to the Court. That means to say, by (a) (aa),
(b), three different situations have been prescribed and the aforesaid situations have properly been taken into consideration in the case of K.R. Mohan Reddy v. M/s Net Work Inc. Rep.Tr. M.D. as reported in AIR 2008 SC 579 whereunder the Hon‟ble Apex Court has held as follows:-
15. The High Court, in our opinion, failed to apply the provisions of Order 41 Rule 27 of CPC in its correct perspective. Clauses (a), (aa) and (b) of sub-rule (1) of Rule 27 of Order XLI refer to three different situations.
Power of the appellate court to pass any order thereunder is limited. For exercising its jurisdiction thereunder, the appellate Court must arrive at a finding that one or the other conditions enumerated thereunder is satisfied. A good reason must also be shown as to why the evidence was not produced in the trial Court.
18. It is now a trite law that the conditions precedent for application of clause (aa) of sub-rule (1) of Rule 27 of Order XLI is different from that of clause(b). In the event the former is to be applied, it would be for the 10 applicant to show that the ingredients or conditions precedent mentioned therein are satisfied. On the other hand clause(b) to sub-rule (1) of Rule 27 of Order XLI of CPC is to be taken recourse to, the appellate Court was bound to consider the entire evidences on record and come to an independent finding for arriving at a just decision; adduction of additional evidence as has been prayed by the appellant was necessary.
19. The fact that the High Court failed to do so, in our opinion, amounts to misdirection in law. Furthermore, if the High Court is correct in its view that the plaintiff-respondent had proceeded on the basis that the suit in its entirely based on a cheque, wherefor, it was not necessary for it to file the books of accounts before the trial Court, finding contrary thereto could not have been arrived at that the same was in fact required to be proved so as to enable the appellate Court to arrive at a just conclusion.
20. The Supreme Court in State of Gujarat v.
Mahendrakumar Parshottambhai Desai(dead) by L.Rs-. (2006) 9 SCC 772 relying upon Municipal Corporation of Greater Bombay v. Lal Pancham and Ors., held as under - :
"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."
21. Appellate Court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial Court, but it will be different if the Court itself require the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the Court. But mere difficulty is not sufficient to issue such direction. While saying so, however, we do not mean that the Court at an appropriate stage would be precluded from considering the applicability of clause (b).
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18. The ambit and scope of order XLI Rule 27 CPC has been adjudicated upon by a Constitution Bench of the Hon‟ble Supreme Court in the case of K. Venkataramiah v. Seetharama Reddy reported in AIR 1963 SC 1526 wherein the judgment referred by the appellant/defendant, AIR 1931 PC 143 and AIR 1951 SC 193, have also been considered and held as follows:-
16. In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy's age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence "to enable it to pronounce judgment". The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the 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 R. 27 (1) (b) of the Code.12
17. It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. That is why in Parsotim Thakur v. Lal Mohar Thakur, 53 Ind App 254: (AIR 1931 PC 143) the Privy Council while discussing whether additional evidence can be admitted observed :
"It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examine the evidence as it stands, some inherent lacuna or defect becomes apparent."
18. As the Privy Council proceeded to point out :
"It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands."
19. We are satisfied that in the present case the High Court allowed additional evidence to be admitted as it required such evidence either to enable it to pronounce judgment or for any other substantial cause within the meaning of R. 27 (1) (b) of O. 41 of the Code. The contention that the decision of the High Court on the question of the respondent's age was vitiated by reason of it being based on inadmissible evidence, must therefore fail.
19. The principles laid down by the Constitution Bench as referred above have been taken into consideration in the case of A.P. State Wakf Board, Hyderabad v. A.I. Shia Conference (Branch) A.P. as reported in AIR 2000 SC 1751 whereunder the Hon‟ble Apex Court has held as follows:- 13
17. We are of the view that instead of dismissing the suit, the justice of the case requires that the parties are to be given an opportunity to produce evidence so as to enable this Court to render a satisfactory judgment on the issue as to whether these institutions are Shia Wakf or Sunni Wakf. In this context, the decision of this Court in K. Venkaramaiah v. A. Seetha Rama Reddy, AIR 1963 SC 1526, is apposite. In that case, this Court observed that under Order 41, Rule 27 (1) (b) of the C.P.C., whenever Court felt difficulty in deciding an issue, the Court could direct additional evidence to be adduced, treating the need for evidence as 'a requirement of the Court' for pronouncing a satisfactory Judgment. It would be "other substantial cause" in Order 41, Rule 27(1) (b). This Court in that judgment observed as follows (Paras 16, 17 and 18 of AIR) :
"In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy's age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence "to enable it to pronounce judgment". The requirement, it has to be rememberd, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Apart from this, it is well to remember that the appellate Court has the power to allow additional evidence not only if it require such evidence "to enable it to pronounce judgment" but also for "any other substantial cause", there may well be cases where even though the Court finds that it requires additional evidence "to enable it to pronounce judgment", it still considers that in the interest of justice something which can pronounce its judgment 14 in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under Rule 27(1)(b) of the Code."
Such requirement of the Court is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands."
20. In the case of Syed Abdul Khader v. Rami Reddy as reported in (1979) 2 SCC 601, the Hon‟ble Apex Court has held in the following way:-
23. It was next contended that the High Court was in error in granting CMP 2762/61 permitting the heirs of Defendants 8, 9 and 11 to produce the sale deeds which they did not produce in the trial court and after relying on the same, reversing the decree of the trial court. The High Court has given cogent reasons for granting CMP 2762/61. Order 41 Rule 27 CPC enables the appellate court to admit additional evidence in the circumstances or situation therein mentioned, one such being where 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. By a catena of decisions of this Court, it is well-established that Order 41 Rule 27 CPC does not confer a right on the party to produce additional evidence. But if the Court hearing the action requires any document so as to enable it to pronounce judgment, it has the jurisdiction to permit additional evidence to be produced. The High Court has given cogent reasons why it felt impelled to permit production of registered sale deeds so as to enable it to pronounce judgment in the matter. If the High Court considered the production of registered sale deeds essential so as to enable it to pronounce judgment, there is no reason why we should interfere with the discretionary power 15 properly exercised by the High Court in the interest of justice. Even otherwise, the High Court was justified in permitting additional evidence to be produced when it consisted of registered sale deeds.
Such additional evidence has to be read as part of the record. Once these registered sale deeds are taken into consideration, a part of the decree of the trial court granted in favour to the plaintiff awarding him possession of the land on the only ground that the sale deeds in respect of those pieces of lands were not produced, could not be maintained and the High Court rightly allowed the appeal of original Defendants 8, 9 and 11 and no exception can be taken to it.
21. In the case of North Eastern Railway Administration, Gorakhpur v. Bhagwan Das as reported in (2008) 8 SCC 511 whereunder the Hon‟ble Apex Court has held as follows:-
13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. The circumstances under which additional evidence can be adduced are:
(i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted [clause (a) of sub-rule (1)], or
(ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time 16 when the decree appealed against was passed [clause (aa), inserted by Act 104 of 1976], or
(iii) 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 [clause (b) of sub-rule (1)].
14. It is plain that under clause (b) of sub-rule (1) of Rule 27 Order 41 CPC, with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it "requires" to enable it to pronounce judgment "or for any other substantial cause". The scope of the Rule, in particular of clause (b) was examined way back in 1931 by the Privy Council in Parsotim Thakur v. Lal Mohar Thakur(AIR 1931 PC 143). While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows: (AIR p. 148) "... Under clause (1)(b) it is only where the appellate court „requires‟ it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the court to pronounce judgment or for any other substantial cause, but in either case it must be the court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but „when on examining the evidence as it stands some inherent lacuna or defect becomes apparent‟."
15. Again in K. Venkataramiah v. A. Seetharama Reddy( AIR 1963 SC 1526) a Constitution Bench of this Court while reiterating the aforenoted observations in Parsotim case(AIR 1931 PC 143) pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause".
There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the 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 17 interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.
22. In the case of Union of India v. Ibrahim uddin as reported in (2012) 8 SCC 148, the Hon‟ble Supreme Court has held as follows :-
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 the 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.
49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out 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 18 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 (AIR 1951 SC 193) and Natha Singh v. Financial Commr., Taxation (1976) 3 SCC 28
50. In Parsotim Thakur v. Lal Mohar Thakur (1931) 34 LW 76, it was held: (LW pp. 86-87) "... The provisions of Section 107, Civil Procedure Code, as elucidated by Order 41 Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and fill up omissions in the court of appeal.
... Under Rule 27, clause (1)(b), it is only where the appellate court „requires‟ it (i.e. finds it needful).... The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent'.
... It may well be that the defect may be pointed out by a party, or that a party may move the court to supply the defect, but the requirement must be the requirement of the court upon its appreciation of evidence as it stands. Wherever the court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. ... the power so conferred upon the court by the Code ought to be very sparingly exercised, and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case."
(emphasis added)
23. In Wadi v. Amilal & Ors reported in (2015) 1 SCC 677, it has been held by the Hon‟ble Apex Court which are as follows:-
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4. It cannot be disputed that the correct date of death of Rupa Ram would clinch the issue and enable the Court to pronounce a satisfactory judgment in the suit. A perusal of Mutation No.49, if proved, would throw considerable light on the issue. On the question of admission of that document by the appellate court, it would be necessary to notice the relevant provision of Order 41 Rule 27 of the Code of Civil Procedure:-
"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)-(aa) * * *
(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,"
5. Now it is clear that Rule 27 deals with production of additional evidence in the appellate court. The general principle incorporated in sub-rule (1) is that the parties to an appeal are not entitled to produce additional evidence (oral or documentary) in the appellate court to cure a lacuna or full up a gap in a case. The exceptions to that principle are enumerated thereunder in clauses (a), (aa) and (b). We are concerned here with clause (b) which is an enabling provision. It says that if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be examined. The requirement or need is that of the appellate court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, clause (b) enables it to adopt that course. Invocation of clause (b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the appellant to resort to it when on a consideration of the material or record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case. 20
24. Thus, from the judgment as referred above, it is evident that Court is fully competent to admit additional evidence under Order XLI Rule 27 (1) (b) even at the appellate stage to do substantial justice also without intervention of a party. Furthermore, to remove the cloud of doubt over the issue, it has been held that where evidence has a direct and important bearing on the main issue and the interest of justice clearly rendered it imperative that it be allowed to be brought on record, then such a document can be brought up on record.
25. The Provision of Clause (b) can be resorted to notwithstanding the fact that fact of the particular case does not satisfy the requirement of Clause (a) or Clause (aa). Under Clause
(b), the admissibility of additional evidence is made to depend, not upon the relevancy or materiality to the issue before the Court of evidence sought to be admitted or upon the fact whether or not the applicants had an opportunity of adducing evidence at some earlier stage, but upon whether or not the appellate court requires the evidence to enable it to pronounce judgment or for any other substantial case. Furthermore, it is apparent that the stage has been identified that of hearing so that Court could assess the relevancy of evidence at that very moment, in the background of the fact that the evidences already present on record since before were not at all sufficient to decide the lis in its conclusiveness. 21
26. As stated above, presence of Shahnaz Begam daughter of Syed Zafar Husnain @ Lal Babu is not denied at the end of appellant/defendant. Respondent/plaintiff has filed instant suit for partition claiming herself to be daughter of Syed Zafar Husnain @ Lal Babu. Appellant/defendant had pleaded in the WS as well as gave evidence on that very score that she slipped and became traceless. While examining PW-39, plaintiff herself, WS was amended and her identity has been introduced, On recall PW- 39 controverted the aforesaid theme. Photographs having been affixed over Admit Card belonging to Shahnaz Begam has been exhibited through PW-39 herself and on account thereof, at least while she was being cross-examined, Court should have given a remark thereupon so that photograph as having been affixed over Admit Card was that of PW-39 properly being inter-connected. Another document Ext-32 is also there on this score. The Court has not be to a silent spectator rather its active involvement during trial in accordance with law is also expected. For want of aforesaid connectivity, it has become difficult to inter-connect that photograph having been affixed over Ext-14 is the photograph of PW-39, the plaintiff. Apart from this, there happens to be averment in the WS that Shahnaz Begam slipped and further the lady who filed instant suit being Shahnaz Begam has also been clarified with proper address over which, the appellant/defendant 22 have also deposed, and as the aforesaid controversy, on the ground of aforesaid deficiency still persist as well as made the issue hazy. To have conclusiveness over issue, it looks desirable to have DNA report.
27. The suit is of the year 1985 at which time there was not proper scientific innovation regarding DNA Test and therefore, there was no question of roving at that point of time to have DNA test and report to decide the issue in its conclusiveness. Whether such scientific innovation can subsequently be taken recourse of, that has been properly dealt with in the case of Mahavir Singh v. Naresh Chandra as reported in AIR 2001 SC 134 wherein the Hon‟ble Apex Court has held as follows:-
5. Before we proceed further we would like to refer to the scope of an application under Order XLI, Rule 27, CPC. Section 107, CPC enables an appellate Court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order XLI, Rule 27, CPC. Principle to be observed ordinarily is that the appellate Court should not travel outside the record of the lower Court and cannot take evidence on appeal. However, Section 107(d), CPC is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are found to exist. The Court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the Court, which is, of course, to be exercised judiciously and sparingly. The scope of Order XLI, Rule 27, CPC was examined by the Privy Council in Kesowji Issur v. G.I.P. Railway, (1907) ILR 31 Bom 381 in which 23 it was laid down clearly that this rule alone can be looked to for taking additional evidence and that the Court has no jurisdiction to admit such evidence in cases where this rule does not apply. Order XLI, Rule 27, CPC envisages certain circumstances when additional evidence can be adduced ;
i) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(ii) 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
(iii) 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.
In the present case, it is not the case of either party that the first situation is attracted. So far as the second circumstance noticed above is concerned, question of exercise of due diligence would not arise because the concerned scientific equipment from which examination is sought to be made itself was not in existence at the time of trial and so that clause is also not attracted. In the third circumstance the appellate Court may require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The expression "to enable it to pronounce judgment" has been subject of several decisions including Syed Abdul Khader v. Rami Reddy, AIR 1979 SC 553, wherein it was held that when the appellate Court finds itself unable to pronounce judgment owing to a lacua or defect in the evidence as it stands, it may admit additional evidence. The ability to pronouce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of Court delivering it. It is only a lacuna in the evidence that will enpower the Court to admit additional evidence [See The Municipal Corporation of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008.] But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. The words "or for any 24 other substantial cause" must be read with the word "requires" which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate Court requires additional evidence, that this rule would apply as noticed by the Privy Council in Kesowji Issur v. G.I.P. Railway (supra). It is under these circumstances such a power could be exercised. Therefore, when the first appellate Court did not find the necessity to allow the application, we fail to understand as to how the High Court could, in exercise of its power under Section 115, CPC could have interfered with such an order, particularly when the whole appeal is not before the Court. It is only in the circumstances when the appellate Court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate Court passed the order on the application filed under Order XLI, Rule 27, CPC, the whole appeal was before it and if the first appellate Court is satisfied that additional evidence was not required, we fail to under- stand as to how the High Court could interfere with such an order under Section 115, CPC. In this regard, we may notice the decision of this Court in Gurdev Singh v. Mehnga Ram (1997) 6 SCC 507, in which the scope of exercise of power under Section 115, CPC on an order passed in an application filed under Order XLI, Rule 27, CPC was considered. When this decision was cited before the High Court the same was brushed aside by stating that the principle stated therein is not applicable to the facts of this case. We do not think so. The High Court ought not to have interfered with such an order.
(emphasis supplied by me)
28. Thus, I am of the view that nature of controversy so persisting on the record does attract conduction of DNA test to sort out the controversy as well as to decide the issue in its conclusiveness and is found duly within the ambit of Order XLI Rule 27(1) (b) of the CPC and is accordingly, ordered so. 25
29. Accordingly, the learned Sub-judge 1st, East Champaran at Motihari is directed to correspond with the Government Scientific Laboratory, Hyderabad for sampling, conduction of DNA Test of plaintiff with the defendant, or any one of the defendants as required by the expert in its presence on proper identification and for that, the plaintiff will have to deposit the fee as prescribed by the Government Scientific Laboratory, Hyderabad and will obtain the report in sealed cover and will transmit the same to this Court in same condition through special messenger.
30. The aforesaid exercise must be completed within three months. Office is directed to transmit the lower court file (A) only to the lower court through Special Messenger along with copy of the instant order so that all the exercise should be completed within a period of three months.
(Aditya Kumar Trivedi, J)
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