Ashok Kumar Sharma vs State of Uttaranchal and Others

Rajesh Tandon, J.—Heard the learned Counsel for the parties.

By the present writ petition the Petitioner has prayed for the issue of a writ in the nature of certiorari quashing the order dated 17-2-2004 passed by the learned District Judge, Hardwar in Civil Appeal No. 99 of 2001, Smt. Radha Panti v. Ashok Kumar annexure 5 to the writ petition.

The factual matrix of the case are that on 22-4-1996, the Petitioner and Respondent No. 3 were married. On 25-5-1998 a suit for divorce u/s 13 of the Hindu Marriage Act was filed by the Respondent No. 3 in the Court of Civil Judge (S.D.) on the ground of cruelty. In the aforesaid suit the Petitioner has filed a counter claim u/s 9 of the Hindu Marriage Act.

The Petitioner has submitted that the suit filed by the Respondent No. 3 was dismissed and the counter claim of the Petitioner was allowed on 11-12-2001. Aggrieved by the order dated 11-12-2001, appeal being civil appeal No. 99 of 2001 was preferred before the District Judge, Hardwar.

On 28-5-2002 during the pendency of the appeal the Respondent No. 3 has moved an application under Order 41 Rule 27 CPC for adducing additional evidence. A perusal of the copy of the application shows that Respondent No. 3 wanted to produce certified copy of the written statement filed in proceedings u/s 498 IPC and Section 3/4 of Dowry Prohibition Act. The reply of the aforesaid application was filed by the Petitioner stating therein that the application is liable to be rejected as the documents sought to be produced were in the knowledge of Respondent No. 3 and as such there is no application of Order 41 Rule 27 CPC However, in paragraph 6 of the objection, the Petitioner has stated that he is filing a copy of the same as annexure-1 and the statement of Smt. Radha Pant made u/s 246 Code of Criminal Procedure as annexure-2. Further in paragraph 10 of the objection, the petition has stated that proceedings u/s 498A IPC and 3/4 Dowry Prohibition Act is still pending and evidence is going on. The learned District Judge, Hardwar has referred the aforesaid two annexures in his order and has directed the Petitioner that these two annexures may be taken back unless they are admitted in evidence. The learned District Judge has considered that the proceedings u/s 498A IPC is pending and the evidence in those proceedings is sought to be filed and as such he has allowed the application under Order 41 Rule 27 in order to do substantial justice between the parties.

The counsel for the Petitioner has argued that additional evidence can be accepted only in accordance with the provisions of Order 41 Rule 27 Code of Civil Procedure. He has referred the provision of Order 41 Rule 27 of the Code of Civil Procedure:

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) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or

(bb) 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

(b) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined.

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

The learned Counsel for the Petitioner has relied upon the judgment in the case Sri Narain Das Vs. IInd Addl. District Judge, Moradabad and another, . It was a case where before the Court there was no application of Clause (b) of Order 41 Rule 27 Code of Civil Procedure. The Court has observed as under:

None of the parties had contended neither the court had observed that the Court had required the alleged document to be produced in order to enable it to pronounce the judgment or for any other substantial cause. Here in this case, Clause (b) has not been resorted to, therefore, it is not necessary to refer, to the said clause for out present purpose.

However, the facts of the case of Narain Dass (supra) are also different in as much as the Will, which was sought to be filed was referred to and was pleaded in the Written statement and was also mentioned in the oral evidence but no explanation was given as to under what circumstances the Appellant was prevented from filling of the will in the evidence. Moreover the Will in question was an old document. The case, therefore, is distinguishable and is not applicable to the facts of the present case.

In the present case proceedings u/s 498A IPC are still pending and has nexus with the present case u/s 13 of the Hindu Marriage Act and therefore, in order to decide the appeal u/s 13 of the Hindu Marriage Act, evidence in the case u/s 498-A IPC has been considered to be relevant by the District Judge. I find no infirmity in the order passed by the learned District Judge while permitting the Appellant to lead additional evidence. More so, when the Petitioner himself has filed these two documents as annexures to the objections. Although the same were not taken on record by the learned District Judge on the ground that the same will be admitted as additional evidence in accordance with the provisions of Order 41 Rule 27.

Other judgements referred by the learned Counsel for the Petitioner are not applicable in the present case. In N. Kamalam (Dead) and Another Vs. Ayyasamy and Another, . the Apex Court has held that there should be a justice oriented approach. In 1997 AWC 231 Rais Ahmad v. Addl. District Judge the Allahabad High Court has observed that additional evidence has to be accepted in accordance to the provisions of Order 41 Rule 27 Code of Civil Procedure.

In the present case the learned District Judge has observed that the document sought to be produced by the Respondent No. 3 can be admitted as the proceedings u/s 498A IPC are still pending.

In 2002 AWC 4233 SC Wali v. Amilal the Apex Court has observed as under:

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 record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case.

Relying upon the judgment in the case Balai Chandra Hazra Vs. Shewdhari Jadav, as well as M.M. Quasim Vs. Manohar Lal Sharma and others, it has been held in the case Sudha Shankar and Prem Shankar Vs. Jagdish Lal and others, as under:

The additional evidence which is sought to be filed is in the form of public documents and its filing is necessitated on account of conclusion of the consolidation proceedings under the Act after the present appeal. The present appeal cannot effectively by decided without taking on record the documents by which rights of the Appellants in the land and other properties subject matter of agreement have come to be extinguished and new plots in lieu thereof have been allotted. As said above, there is no absolute prohibition that additional evidence cannot be received in second appeal. In view of the above facts, the application under Order XLI Rule 27 the CPC cannot be said to be mala fide. On the other hand, the filing of the additional evidence has become an absolute essentiality on account of loss of interest of the Appellants in the land. Accordingly, application under Order XLI, Rule 27, CPC is allowed and all the documents filed therewith are taken on record so that the subsequent events which occurred on account of operation of law may be evaluated.

The counsel for the Petitioner has urged that no proper application has been filed in as much as no affidavit has been filed in support of the application. In the case M.M. Quasim Vs. Manohar Lal Sharma and others, it has been held that application under Order 41 Rule 27 cannot be rejected on narrow grounds. The Apex Court has held as under:

Same is true of the High Court when it said that even if the landlord who commenced action lost all interest in the property subsequent to the passing of the decree, the decree does not become a nullity and at any rate no note of the subsequent events can be taken in the absence of a proper application under Order 41 Rule 27 Code of Civil Procedure. But next observation of the High Court that where the Plaintiff landlord''s interest in the property is extinguished subsequent to the decree by the trial Court, he does not lose his right to maintain and continue the action, is opposed to the very scheme of the Rent Act and the provisions contained in Sections 11(1)(c) and 12. Both the courts were, therefore, clearly in error in ignoring this vital piece of evidence which goes to the root of the matter and would surely non-suit the Plaintiffs.

In view of the aforesaid facts and circumstances I find no illegality in allowing the additional evidence on the ''substantial cause'' as contained in Clause (b) of Order 41 Rule 27(1) Code of Civil Procedure. Substantial cause is wide enough to include cause to substantiate averments of the Respondent No. 3 from the collateral proceedings as both the proceedings i.e. u/s 498A IPC and Section 13 of the Hindu Marriage Act are based for the same cause.

Clause (b) of Order 41 Rule 27(1) gives ample power to the Court to admit additional evidence for substantial cause. The word ''substantial cause'' is wide enough to eliminate the technicalities of law, which shall come in the way of justice-oriented approach.

However, permitting to adduce additional evidence will still necessitate the Respondent No. 3 to prove its relevance during the course of arguments which shall be subject to the objections by the Petitioner.

The learned District Judge, therefore, has rightly allowed the application under Order 41 Rule 27 Code of Civil Procedure. However, liberty is given to the Petitioner to rebut those documents.

Subject to the aforesaid observations, the writ petition is dismissed. No order as to costs.

Let this judgment be circulated amongst all the District Judges subordinate to the High Court of Uttaranchal.