Indian Kanoon - Search engine for Indian Law

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

Learned counsel for the Appellants placed heavy reliance on Rule 27 (aa) of Order XLI of the Code of Civil Procedure and submitted that at the time of hearing of the suit or appeal before the lower Appellate Court, the Applicants could not produce the said documents on record since the husband of Applicant No.1 died. It is stated in paragraph No.10 of the said application that due to the death of her husband, she was not able to collect all these documents and after decision of the Appellate Court, she got all these papers more specifically the original Sanad and therefore, there is no any intentional delay or latches on the part of the Applicants in producing these documents. When the counsel for the Applicants / Appellants was confronted with the query that, when the 11 SA.122.10 husband of Applicant No.1 died, he replied that the husband of Applicant No.1 died in the year 1993. The suit was filed by the Respondents herein in the year 2002. The suit was heard in the year 2003 to 2006. Except paragraph No.10 in the said application that due to the death of husband of Applicant No.1, she was not able to collect all the documents, there are no any averments in the application showing due diligence and efforts taken by Applicant No. 1 to procure those documents. The reasons stated in the application that due to death of the husband of Applicant No.1, she was not able to collect the documents, cannot be accepted. The husband of Applicant No.1 died in the year 1993 and after lapse of nine years, suit was filed. Therefore, nothing prevented Applicant No.1 from applying for said documents. Even from reading the said application, there is no any attempt on the part of the Applicants even to apply those documents at the time of pendency of the suit.

All the documents on which the Appellants to place reliance are old documents those are not the documents, which have come in existence recently. Therefore, it was possible for the Applicants -

12 SA.122.10 Appellants to procure those documents atleast to apply for the said documents at the earliest opportunity. Therefore, at the costs of repetition, it is to be observed that no any reasons are given in the application or due diligence is disclosed in the application for not applying for said documents or for procuring the said documents.

Therefore, in the fact of that case, the Apex Court allowed the prayer of the Applicants therein and remanded the matter back to the trial Court. However, as stated earlier, in the present case, the husband of Applicant No.1 died in the year 1993. The suit came to filed in the year 2002 and effective recording of evidence was in the year 2005-06. Therefore, by any stretch of imagination, it cannot be said that any due diligence is shown by the Applicant No.1 for procuring those documents. First time in the second appeal, an attempt is made to produce those documents on record.

Therefore, viewed from any angle, no case is made out to interfere in the concurrent findings recorded by the Courts below. The Applicants herein, who are the original Defendants in spite of giving sufficient opportunities, did not lead either oral or documentary 19 SA.122.10 evidence before the trial Court. Belated attempt of the Applicants to produce the documents on record at the stage of second appeal is without showing due diligence or any efforts to procure such documents. The only reason given in the application is the death of husband of Applicant No.1, which took place in the year 1993.