Asa Ram vs Medh Ram alias Medh Chand and Others

Rajiv Sharma, J.—This petition is directed against the order dated 20.10.2012 passed by the learned Additional District Judge, Solan in case Civil Miscellaneous Application No. 328 (a)-S/6 of 2012. "Key facts" necessary for the adjudication of this petition are that the petitioner-plaintiff (hereinafter referred to as the "plaintiff" for convenience sake) filed a civil suit No. 160/1 of 2004 in the Court of Civil Judge (Senior Division), Nalagarh for declaration with consequential relief of permanent prohibitory injunction. Plaintiff has relied upon registered will dated 3.1.2001 in his favour. Respondent-defendant No. 1, namely, Medh Ram has relied upon will dated 7.1.2002. The civil suit was decided on 14.5.2009. Learned Civil Judge (Junior Division) dismissed the suit by holding that the plaintiff has failed to dispel the suspicious circumstances qua the "will" dated 3.1.2001 Ex.P-1 and similarly the defendants have also failed to remove the suspicious circumstances qua the "will" Ex.DW-1/A dated 7.1.2002.

The plaintiff filed an appeal before the learned Additional District Judge, Solan. Respondent-defendant No. 1 filed an application under order 41 rule 27 of the CPC for granting permission to produce the additional evidence and framing additional issues. According to the averments contained in the application, Smt. Banti had also executed "will" dated 7.2.1983. It was duly registered with Sub-Registrar, Nalagarh. He wanted to prove the "will" by calling the scribe and attesting witnesses. It was exhibited as Ex.D-2 in the suit. The plaintiff filed detailed reply to the same. According to the plaintiff the plea of third "will" was never raised by the contesting defendant in the written statement filed by him. It was also stated that none of the parties have relied upon "will" dated 7.2.1983. There was no issue on this "will". The application under order 41 rule 27 of the CPC was allowed by the learned Additional District Judge, Solan on 20.10.2012. In these circumstances, the present petition has been filed.

Mr. Sanjeev Kuthiala has vehemently argued that orders dated 20.10.2012 have been passed without taking into consideration the ingredients of order 41 rule 27 of the Code of Civil Procedure. He has also argued that the plea of third "will" dated 7.2.1983 has been taken at a very belated stage. He has further argued that this plea was never raised in the written statement filed by the contenting respondent-defendant.

What emerges from the facts enumerated hereinabove is that both the parties, i.e. plaintiff and contesting defendant have placed strong reliance on "will" Ex. P-1 dated 3.1.2001 and Ex.DW-1/A dated 7.1.2002 before the trial court. The defendant has not taken a specific stand that the "will" dated 7.2.1983 was also executed by Smt. Banti Devi. His main reliance was upon unregistered "will" dated 7.1.2002 on the basis of which mutation No. 102 was attested on 28.2.2004. The defendant has tried to fill up the lacuna at a very belated stage. If he wanted to rely upon "will" dated 7.2.1983, he could produce the scribe and marginal witnesses to prove the execution of the "will" during the trial itself. It is evident that the application has been filed by the defendant to overcome the judgment dated 14.5.2009 whereby the trial court has given the findings that the plaintiff and defendant have failed to remove the suspicious circumstances qua the "will" dated 3.1.2001 Ex.P-1 and Ex.DW-1/A dated 7.1.2002. In case the defendant had specifically relied upon the "will" dated 7.2.1983, the trial court ought to have framed the issue with regard to its execution. The first appellate court has not given any findings that the defendant could not lead evidence despite due diligence in order to prove the "will" dated 7.2.1983 by producing scribe and marginal witnesses.

Their Lordships of the Hon''ble Supreme Court in The State of Gujarat and Another Vs. Mahendrakumar Parshottambhai Desai (Dead) by L.Rs., have held as under:

We shall first deal with the appeals preferred against the judgment and order of the High Court rejecting Civil Application Nos. 964 and 1150 of 2002 filed by the appellants herein for adducing additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. The documents sought to be produced were contained in Annexure I to the applications. The applications were opposed by the respondents. It was submitted on behalf of the appellants that the applications may be treated as one under Order XLI Rule 27(1)(b) of the Code of Civil Procedure, apparently because the other provisions or the rule did not apply to the facts and circumstances of the case. The High Court noticed that a similar Civil Application being No. 4849 of 2000 had been filed earlier when this appeal had been placed for hearing before another Division Bench of the High Court, but the said application was rejected by order dated June 22, 2000. The High Court further found that Rule 27(1)(b) of Order XLI can be invoked only if the 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 instant case it was not as if the additional evidence was required by the Court to enable it to pronounce judgment and, therefore, additional evidence was sought to be adduced for "substantial cause" since serious prejudice would be caused to the appellants if the additional evidence was not permitted to be adduced. Reliance was placed on the judgment of this Court in Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay and Others, wherein this Court held that 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. The High Court referred to the earlier proceedings before various authorities and came to the conclusion that though the appellants had sufficient opportunity to bring the evidence on record,, for reasons best known to it, the State did not produce the entire evidence before the trial court and it was only 8 years after the dismissal of the suit that the applications were filed for adducing additional evidence in the appeal. The High Court, therefore, dismissed the applications for adducing additional evidence.

We find no error in the approach of the High Court. We have earlier noticed the long history of litigation which preceded the filing of the suit. The documents sought to be brought on record are not documents which were discovered later or came into existence after the filing of the suit. The documents are part of the Government records and they could have been produced in the suit.

Mr. Sorabjee appearing on behalf of the respondents rightly submitted that Order XLI Rule 27 of the CPC cannot be invoked by a party to fill up the lacunae in his case. The State found itself in a dilemma when confronted with two sets of documents conflicting with each other. There was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by the State or that such evidence was not within its knowledge. In fact no ground whatsoever was made out for adducing additional evidence, and the sole purpose for which the State insisted upon adducing additional evidence was to persuade the Court to accept the point of view urged on behalf of the State, since the evidence on record did not support the case of the appellants/State. Having considered all aspects of the matter we are satisfied that the High Court rightly rejected the applications filed by the State for adducing additional evidence at the stage of appeal which was intended only to fill up the lacunae in its case.

Similarly, in Karnataka Board of Wakf Vs. Government of India and Others, their Lordships of the Hon''ble Supreme Court have held that a party is not entitled to produce additional evidence unless it is shown that evidence could not be produced before the learned trial Court despite exercise of due diligence. Their Lordships have explained the scope of additional evidence under Order 41 Rule 27 as under:

In the circumstances, the learned counsel for the appellant, reiterated the claim made before the High Court that they should be permitted to adduce further evidence before the court to substantiate their claim but when the matters were pending before the Trial Court and the High Court they had ample opportunity to do so. If they had to produce appropriate documents, they could have done so and also it is not clear as to the nature of the documents which they seek to produce which will tilt the matter one way or the other. The scope of Order XLI, Rule 27, CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment. In this view of the matter, we do not think there is any justification for us to interfere with the orders of the High Court. However, in view of the arguments addressed by the learned counsel for the appellant, we have also gone into various aspects of the matter and have given another look at the matter and our findings are that the view taken by the High Court is justified. However, one aspect needs to be noticed. The High Court need not have stated that the first respondent is entitled to the relief even on the basis of adverse possession. We propose to examine this aspect.

It is settled law by now that party guilty of remissness in not producing evidence in trial court, cannot be allowed to produce it in appellate court. There must be satisfactory reasons for non-production of the evidence in trial court seeking production thereof in appellate court. Their Lordships of the Hon''ble Supreme Court in a recent judgment in Union of India (UOI) Vs. Ibrahim Uddin and Another, have held as under: 36. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramiah Vs. A. Seetharama Reddy and Others, The Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay and Others, ; Soonda Ram and Another Vs. Shri Rameshwarlal and Another, and Syed Abdul Khader Vs. Rami Reddy and Others,

The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S.K. Mohammed and Others Vs. Mohamad Iqbal and Mohamed Ali and Co.,

Under Order XLI, Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But 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 does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors. (supra)].

It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted 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 under this rule. So 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. (Vide: State of U.P. Vs. Manbodhan Lal Srivastava, ; and S. Rajagopal Vs. C.M. Armugam and Others,

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.

The words "for any other substantial cause" 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, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.

Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the Court of further appeal to see, if the discretion under this rule has been properly exercised by the Court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the rule.

The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate Court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.

It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice - delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. (Vide: State of Orissa Vs. Dhaniram Luhar, ; State of Uttaranchal and Another Vs. Sunil Kumar Singh Negi, The The Secretary and Curator, Victoria Memorial Hall Vs. Howrah Ganatantrik Nagrik Samity and Others, and Sant Lal Gupta and Others Vs. Modern Co-operative Group Housing Society Ltd. and Others,

In The The Land Acquisition Officer, City Improvement Trust Board Vs. H. Narayanaiah and Others, , while dealing with the issue, a three judge Bench of his Court held as under:

We are of the opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it an opportunity should have been given to the appellant to rebut any inference arising from its insistence by leading other evidence.

(Emphasis added).

A similar view has been reiterated by this Court in Basayya I. Mathad Vs. Rudrayya S. Mathad and Others,

A Constitution Bench of this Court in K. Venkataramiah (Supra), while dealing with the same issue held:

It is very much to be desired that the courts of appeal should not overlook the provisions of cl. (2) of the Rule and should record their reasons for admitting additional evidence..... The omission to record reason must, therefore, be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory.

(Emphasis added)

In the said case, the court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. In such a fact-situation, the order allowing such application did not vitiate for want of reasons.

Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record such application may be allowed.

To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.

Stage of Consideration:

An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find 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 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: Arjun Singh alias Puran Vs. Kartar Singh and others, and Natha Singh and Others Vs. The Financial Commissioner, Taxation, Punjab and Others,

Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Order dated 20.10.2012 is quashed and set aside. Pending application(s), if any, also stands disposed of. No costs.