Allahabad High Court
Satya Narayan vs Smt. Mohini Devi And Another on 3 January, 2018
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 7 Case :- MATTERS UNDER ARTICLE 227 No. - 8925 of 2017 Petitioner :- Satya Narayan Respondent :- Smt. Mohini Devi And Another Counsel for Petitioner :- Anil Kumar,Pravesh Kumar Counsel for Respondent :- Sumit Daga Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Prevesh Kumar, learned counsel for the defendant-appellant-tenant/petitioner and Sri Sumit Daga, learned counsel for the plaintiff-respondent/landlord.
2. This petition under Article 227 of the Constitution of India has been filed praying to set aside the order dated 28.11.2017 in U.P.U.B. Appeal No.4/2015 (Satya Narayan Vs. Smt. Mohani and others), passed by the Court of Additional District Judge/F.T.C., Court No.1, Hathras, whereby the application of the defendant-appellant/petitioner under Order XLI Rule 27 C.P.C. for taking additional evidence, was rejected.
3. The sole ground argued by learned counsel for the petitioner to attack the impugned order is that due to mistake of the counsel, copy of an order dated 24.5.1996 and a copy of written statement of case No.18/1987 could not be filed before the trial court and as such these additional evidences filed as per list 11-C were liable to be admitted in evidence but the application 11-C has been illegally rejected by the impugned order dated 28.11.2017.
4. Learned counsel for the plaintiff-respondent submits that the order in case No.18/1987 was passed much prior to institution of the release application under Section 21 of U.P. Act No.13 of 1972 and all the facts were within the knowledge of the defendant-petitioner and as such the Application 11-C has been lawfully rejected by the Appellate Court. He further submits that the allegation of mistake of counsel is wholly false and that apart even it can not be made a ground to admit additional evidence. In support of his submission he relied upon a judgment of this Court in the case of Prahlad And 7 Others Vs.Chandra Bhan And 6 Others 2017 (5) AWC 4654 and the law laid down by Hon'ble Supreme Court in Malayalam Plantations Ltd. Vs. State of Kerala, 2010 13 SCC 487 and Union of India Vs. Ibrahimuddin and another 2012(8) SCC 148 (paras 36 to 41).
5. I have carefully considered the submissions of learned counsel for the parties and perused the record of the petition before me.
6. While rejecting the application of the defendant-petitioner, the appellate court recorded the findings as under:
"voyksdu ls Li"V gS fd vihykFkhZ }kjk tks vfrfjDr lk{; nkf[ky djuk pkgk x;k gS mlesa ,d okn la[;k& 18@87 dk okn i= o izfrokn i= rFkk vkns'k fnukad 24-05-96 tks okn la[;k&18@87 dks ikfjr fd;k x;k gS] ftlls Li"V gS fd mDr okn i=] izfrokn i= o vkns'k ih0,0 okn la[;k&30@07 eas nk;j fd;s tkus ls cgqr gh iwoZ dk gS] rFkk i{kdkj Hkh yxHkx ,d leku gS] okn la[;k& 18@87 esa ih0,0 okn la[;k 30@07 ds izfri{kh lR;ujk;u ds firk ckadsyky foi{kh Fks] bl dkj.k ,sls lk{; dks fo+}ku vf/koDrk dh xyrh ;k lgh jk; u fn;s tkus ds vk/kkj ij vihyh; Lrj ij vfrfjDr lk{; nkf[ky djus dh vuqefr ugha nh tk ldrhA i=koyh ds voyksdu ls ;g Hkh Li"V gS fd voj U;k;ky; ds le{k foi{kh ds lk{; gsrq vusdksa volj iznku fd;s x;s gS] bl dkj.k ekuuh; loksZPp U;k;ky; dh mijksDr fof/k O;oLFkk 2012 ¼94½ ,,yvkj 895 ls eSa lger gWw ftlesa ekuuh; loksZPp U;k;ky; us ;g fn'kk funsZ'k fn;k gS fd fo}ku vf/koDrk dh fdlh izdkj dh ykijokgh@ vlko/kkuh ds vk/kkj ij vfrfjDr lk{; ugha fy;k tkuk pkfg;s] tgkW rd vihykFkhZ }kjk nkf[ky fof/k O;oLFkk 2016 ¼1½ lh,vkj 968 bykgkckn dk iz'u gS] esa ek= fo}ku vf/koDrk dh xyrh ls fdjk;snkj dks dz; dh uksfVl dh jlhn nkf[ky ugha gks ik;h Fkh] bl dkj.k U;k;ky; }kjk uksfVl ds fnukad dk [kqyklk djus gsrq fo}ku vf/koDrk dh xyrh ds vk/kkj ij vihyh; Lrj ij lk{; fy;s tkus dk funsZ'k fn;k x;kA mDr fof/k O;oLFkk izLrqr ekeysa ls esy ugha [kkrh] bl dkj.k eSa ikrk gwW fd vihykFkhZ }kjk izkFkZuk i= 11x ds }kjk vfrfjDr lk{; vihyh; Lrj ij fy;s tkus dk izkFkZuk i= Lohdkj fd;s tkus ;ksX; ugha gS ysfdu vihykFkhZ }kjk 15d dk [k.Mu lk{; 'kiFk i= i=koyh ij nkf[ky fd;k x;k gS ftlesa i{kdkjksa dh fLFkfr dks vius ekSf[kd lk{; ds }kjk Li"V fd;k x;k gS] dks i=koyh ij fy;k tkuk mfpr ,oa lehphu izrhr gksrk gSA"
7. It is settled law that the Appellate Court should not travel outside the record of the lower court. It is also equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. However, an exception is provided in Order XLI Rule 27 CPC that additional evidence may be produced in the Appellate Court if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or 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. In the case of Ibrahimuddin and another (supra) (paras 36 to 41) Hon'ble Supreme Court interpreted the phrase "for any other substantial cause" and held that it 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. It was further held that it is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. In the absence of satisfactory reasons for non- production of the evidence in the trial court, additional evidence should not be permitted 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. 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. 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. In Shri Kishore and another vs. Roop Kishore, 2006 (62) ALR 414 this Court relied upon a judgmnet of Hon'ble Supreme Court in the case of Natha Singh v. The Financial Commissioner AIR 1976 SC 1053 and held that it is only in exceptional and extraordinary circumstances that the appellate court may, on its own, direct production of any document or witness only to enable it to pronounce the judgment or for any other substantial cause.
8. Perusal of the copy of the application of the defendant-petitioner dated 22.8.2016 filed as Annexure 3 shows that the only reason mentioned by him in the application is that his Advocate kept him uninformed of the proceedings in P.A. Case No.30/2007 and as such he could not file the aforesaid evidence. Perusal of the judgement and decree dated 24.11.2015 passed by the Prescribed Authority/Civil Judge (S.D.), Hathras, shows that before the Prescribed Authority the defendant-petitioner has filed written statement 9-C. He has also filed voluminous documentary evidences vide list 50-C. Thus, even the ground taken by the defendant-petitioner in his application for additional evidence dated 22.8.2016 that he was not informed about the proceedings of P.A. Case No.30 of 2007 by his counsel, is wholly incorrect and baseless inasmuch as the defendant-petitioner has not only filed written statement but also filed several documentary evidences before the Prescribed Authority vide list 50-C.
9. In view of the above discussion, I do not find any legal infirmity in the impugned order dated 28.11.2017 whereby the Application 11-C filed by the defendant-petitioner has been rejected. The defendant-petitioner has completely failed to make out a case for taking additional evidence in appeal. Under the circumstances, I do not find any merit in this petition. Consequently, the petition deserves to be dismissed.
10. In result, the petition fails and is hereby dismissed.
Order Date :- 3.1.2018/vkg