Allahabad High Court
Latif Khan And Another vs Civil Judge, S.D., Bulandshahar And 17 ... on 29 March, 2017
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 2 AFR Case :- MATTERS UNDER ARTICLE 227 No. - 1814 of 2017 Petitioner :- Latif Khan And Another Respondent :- Civil Judge, S.D., Bulandshahar And 17 Others Counsel for Petitioner :- Govind Krishna Counsel for Respondent :- Faneesh Mishra Hon'ble Manoj Misra, J.
Heard learned counsel for the petitioners; Sri Faneesh Mishra for the respondents 2 to 8; and perused the record.
The present petition has been filed challenging an order dated 28.02.2017 passed by the Civil Judge (Sr. Div.), Bulandshahar in Civil Appeal No. 47 of 1977, arising out of Original Suit No.166 of 1972, by which petitioners' application 101 Ga 2, under Order 41 Rule 27 C.P.C., to bring additional evidence on record , has been rejected.
A perusal of the record would reveal that there were two suits inter se the parties. One was Original Suit No. 166 of 1972 for cancellation of a sale-deed dated 30.10.1969 and the other suit was Original Suit No. 574 of 1969 which related to grant of permanent prohibitory injunction in respect of the suit property. The Original Suit No. 574 of 1969 stood dismissed by both the courts below and thereafter Second Appeal No. 2873 of 1978 was also dismissed by order dated 05.02.2010. The proceedings of Original Suit No. 166 of 1972 traveled up to this Court in the form of Second Appeal No. 3150 of 1978 which came to be decided by judgment and decree dated 04.03.2013 whereby the appellate court decree was set aside and the matter was remanded back to the lower appellate court. It appears that the lower appellate court had placed complete reliance on revenue entries and therefore in the second appeal a question was framed as to whether revenue entries could determine title. This Court in Second Appeal No. 3150 of 1978 held that revenue entry could be a record relating to possession but it may not be construed as a document of title and therefore the appellate court was required to decide the matter afresh.
Pursuant to the order of remand, Civil Appeal No. 47 of 1977 was restored to its original number and the same is still pending in the Court of Civil Judge (Sr. Div.), Bulandshahar. During the pendency of this Civil Appeal No. 47 of 1977, an application 101 C2 was filed by the petitioners to bring on record number of documents suggesting that there had been some acquisition and consolidation proceeding having material bearing on the rights of the parties qua the suit property. All the said papers apparently related to proceedings undertaken before the institution of the Original Suit No. 166 of 1972 out of which Civil Appeal No. 47 of 1977 had arisen. In the said application, the petitioner made a statement that he being an illiterate person did not have knowledge of the aforesaid documents from before and therefore those documents being part of public record should be accepted on record. The respondents in appeal filed a detailed objection refuting the stand taken by the applicant.
The court below rejected the application 101 C2 by a detailed order by holding that no good ground has been disclosed by the applicant to satisfy the conditions on which additional evidence could be accepted on record, during pendency of an appeal, under Order 41 Rule 27 C.P.C.
Learned counsel for the petitioners has assailed the order passed by the court below by submitting that once it is stated in the application that the applicant was not aware of the documents from before and claims that he is a simple illiterate villager, it is a sufficient ground to accept additional evidence on record particularly when the documents are part of public record.
In support of the above contention, the learned counsel for the petitioners has placed reliance on a judgment of the apex court in Government of Karnataka v. K.C. Subramanya and others : 2014 (2) AWC 1155 to contend that where the documents were not within the knowledge of the applicant, then that is sufficient ground to take documents on record.
The learned counsel for the respondent has supported the order passed by the court below.
I have considered the submissions of the learned counsel for the parties and have perused the authority cited.
Order 41, Rule 27 of the C.P.C. provides for production of additional evidence in Appellate Court. This rule is an exception to the general principle that Appellate Court should not travel outside the record of the Lower Court. The rule lays down the conditions under which the Appellate Court is empowered to allow the additional evidence either oral or documentary to be taken on record. The rule provides that the Appellate Court is empowered to accept additional evidence if either of the specified three conditions exist. That is:-
(i) if the evidence in question was tendered in Lower Court but was improperly or illegally rejected by it; 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) where the Appellate Court itself requires the additional evidence to enable it to pronounce judgment, or for any other substantial cause.
The case at hand does not deal with condition no. (i) and in so far as condition. (iii) is concerned that, according to several pronouncements of the apex court, is for the court to consider at the time of hearing of the matter whether it requires the additional evidence to enable to it to pronounce judgment, or for any other substantial cause. Therefore, at this stage what has to be seen is whether from the allegations made in the application requirements of condition no. (ii) were satisfied.
For applicability of condition no.(ii), the applicant has to satisfy the court that despite the exercise of due diligence, either (a) such evidence was not within his knowledge; or (b) he could not produce it before the court below by the time decree was passed. Accordingly to enable the court to admit additional evidence under this clause, the applicant has to demonstrate that despite the exercise of due diligence he could not learn about the document or the evidence or could not produce the same at the earlier stage. The judgment cited by learned counsel for the petitioner nowhere holds that mere statement made in the application that the document was not within the knowledge of the applicant is sufficient to accept the document as additional evidence. The facts of each case have to be examined to ascertain whether the explanation offered is bona fide or not.
When a party's right is dependent on public record, it is expected that before setting up a claim, public record is sifted to develop a case. That is the least expected of a party. Therefore, if public record is to be brought by way of additional evidence in appeal, the party has to satisfy the court that it made efforts to find out relevant material but, despite such effort, could not discover the same and that now, by some providence or help, which should be specified, the same has been discovered. A party may however satisfy the court by disclosing that being illiterate and ignorant of his right, in absence of any legal advice, he could not produce the same earlier. But in such cases, the court has to be circumspect and must have due regard to the facts and circumstances of the case, particularly the stage at which the application has been filed, to be fully satisfied on the bona fides of the explanation. Like wise, a party may demonstrate that he had applied for extracts of public record but the same for some cogent reason, which should be specified, was not made available till the passing of judgment by the lower court.
In the instant case, the application under Order 41 Rule 27 C.P.C. filed by the applicant is completely silent as to when the applicant had derived knowledge of the aforesaid documents. Further, it does not at all disclose as to how he derived knowledge of the aforesaid documents now. More over, if those documents were part of public record, then, if the applicant had exercised due diligence, the applicant could have been well aware of those documents even before institution of the suit because, allegedly, those documents were in existence since before. The plea that applicant being illiterate could not know about it earlier does not completely satisfy the requirement to admit the same, particularly in absence of any explanation as to how and under what circumstances he came to know about the existence of those documents now. More so, because the applicant had the benefit of litigation, at three levels including the High Court, spanning across four decades by which time it is expected that he had sufficient advice from various counsels. Under the circumstances, this Court finds no good reason to interfere with the order passed by the court below, particularly when it is a detailed and well reasoned order. The petition is dismissed.
Order Date :- 29.3.2017 Sunil Kr Tiwari