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Judgment
Hon''ble Rajiv Sharma, J.—Heard Mr. Umesh Kumar Srivastava, learned Counsel for the petitioner and Mr. Mohd. Arif Khan, Senior Advocate assisted by Mr. Mohd. Aslam Khan, learned Counsel appearing for the respondents.
By means of instant writ petition, the petitioners pray for quashing the impugned judgment and order dated 22.12.1986 passed by the Court of Additional Civil Judge I, Bahraich, namely, the opposite party No. 1, contained in Annexure No. 6 to the writ petition. Further, they pray for a direction to the opposite part No. 1 to restrain from proceeding with the decision of the Regular Civil Appeal No. 38 of 1986 and two connected Civil Appeal Nos. 37 of 1986 and 39 of 1986 pending before it before the decision of the writ petition.
Brief facts of the present case are that originally, Barati was the Bhumidhar of agricultural properties situated in Village Durga Purwa Dakhila, Raghunathpur, Pargana and Tahsil Nanpara, District Bahraich. During his life time, he executed a registered Will Deed dated 3.3.1982 in respect of his entire movable and immovable properties in favour of his real nephew Bindeshwari Prasad (petitioner). According to the petitioner, before execution of registered Will Deed dated 3.3.1982, he had also executed a registered Will dated 4.10.1977 in favour of the sons of the petitioner, namely, Anil Kumar, Satgur Prasad and Arjun Prasad, which was subsequently revoked by the aforesaid executor by means of registered deed of revocation dated 14.7.1979. Barati died on 12.11.1982 and after his death, the petitioner became entitled to the movable and immovable properties left by him on the basis of registered Will dated 3.3.1982 and consequently, he also entered into the possession of the entire agricultural land situated in the aforesaid village.
In the month of February, 1983, the opposite party nos.2 to 5, by exercising coercion and undue influence upon Smt. Phoolmati, widow of Barati, persuaded her and by practicing fraud upon her got 3 registered sale deeds executed in respect of the aforesaid agricultural properties inherited by the petitioner on the basis of Will dated 3.3.1982 executed by late Barati. These registered sale deeds were executed on 5th February, 1983 and 8th February, 1983 in favour of opposite party No. 2, opposite party nos.3 to 5 and opposite party nos.6 to 11. When the petitioner came to know this fact, he filed three Regular Civil Suits for cancellation of sale deeds against the aforesaid opposite parties in the Court of Munsif, Bahraich, which were contested by them. After considering the oral and documentary evidence, the trial Court dismissed the Suit vide judgment and order dated 7.3.1986. Being aggrieved, he filed Civil Appeal No. 38 of 1986. In the said appeal, the petitioner moved two applications, paper No. C-16 and Paper No. C-17. The application numbered as C-16 was moved for permitting the plaintiff-appellant to bring on record the hand writing expert''s opinion in respect to the comparison of signatures of Late Barati Lal on the registered will dated 3.3.1982 executed by the said deceased in favour of the plaintiff from the admitted signatures of the deceased on the earlier Will dated 4.10.1977 and the deed of revocation dated 17.4.1979. By means of application numbered as Paper No. C-17, moved under Order 41 Rule 27 CPC, the petitioner sought permission to adduce additional evidence before the opposite party No. 1. By this application, the petitioner sought permission to file the original registered Will dated 4.10.1977 executed by late Barati Lal and the deed of revocation dated 17.4.1979 of the said Will written by late Barati Lal, in order to get a comparison of the admitted signatures of Barati Lal on these admitted documents with his disputed signatures on the Will dated 3.3.1982 executed in favour of the petitioner. After considering the objections preferred by the opposite parties, the Appellate Court rejected both the aforesaid applications vide order dated 22.12.1986, impugned in the instant writ petition.
According to the petitioner, the impugned judgment and order passed by the opposite party No. 1 is illegal and without jurisdiction, in view of the fact that under the provisions of Order 41 Rule 27 of the Code of Civil Procedure, additional evidence can also be accepted by the Appellate court enabling it to pronounce complete and final judgment and such additional evidence can also be accepted for any other substantial cause. The reasons and ground adopted by the opposite party No. 1 for rejecting the application of the petitioner for permission to produce additional evidence are totally arbitrary, perverse and are not supported by the provisions of Order 41 Rule 27 of Code of Civil Procedure. Further, he states that the appeal is in continuation, the additional evidence should have been taken into consideration by the Appellate Court.
Mr. M.A. Khan, Senior Advocate rebutting the arguments of learned Counsel for the petitioners submits that no reasons have been disclosed in an application filed Order 41 Rule 27 of CPC for not bringing on record the documents during the proceedings in the Civil Court, though the Will was in the possession of the petitioner. Since the petitioner did not avail the opportunity at the time of filing Civil Suit, the same cannot be permitted to avail it at the time of appeal to fill-up the gap or lacuna. Therefore, he prays for dismissal of writ petition, as the impugned order has rightly been passed by the opposite party No. 1.
In order to adjudicate the case, provisions of Order 41 Rule 27 of CPC have to be looked into, which are as under:-
Order 41 Rule 27. 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
(aa) 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 judgment, 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.
Considered the submissions made by the learned Counsel for the parties and perused the impugned orders. When the evidence was available at the time of recording of evidence and plaintiff could have produced the same, the applications under Order 41 Rule 27 could not be allowed as it would mean allowing plaintiff to fill up gaps and lacuna of the case. Further, in absence of satisfactory reasons for the non-production of the evidence in the trial Court additional evidence should not be admitted in appeal.
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 as has been held by the Hon''ble Supreme Court reported in S. Rajagopal Vs. C.M. Armugam and Others,
In the case of Sunder Lal and Son v. Bharat Handicrats Private Ltd. [AIR 1966 SC 406], the Hon''ble Supreme Court held that the plea that the importance of the document was not realized by those in charge of the case, before the High Court would not bring the case within the expression "other substantial cause" in Order 41 Rule 27 of the Code of Civil Procedure.
In the cases of Mrs. Indira Bhalchandra Gokhale (deceased by LRs) Vs. Union of India and Another, A. Munuswami Vs. R. Sethuraman, Shri Kishore and Another Vs. Roop Kishore, it has been held that the additional evidence in appeal cannot be filed by any party to the appeal as of right.
The Hon''ble Supreme Court in the case of N. Kamalam (Dead) and another v. Ayyasamy and another [2001 (44) ALR 737], observed that incidentally, the provisions of Order 41 Rule 27 have not been engrafted in the in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal --it does not authorise any lacunae or gaps in evidence to be filled.
In paras 10 and 11 of The State of Gujarat and Another Vs. Mahendrakumar Parshottambhai Desai (Dead) by L.Rs., the Hon''ble Apex Court held as under:-
We shall first deal with the appeals preferred against the judgment and order of the High Court rejecting Civil Applications Nos,964 and 1150 of 2002 filed by the appellants herein for adducing additional evidence under Order 41 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 41 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 22.6.2000. The High Court further found that Rule 27 (1) (b) of Order 41 can be invoked only if the Court requires any documents 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 Corpon. for Greater Bombay v. Lala Pancham 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 41 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 the 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 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 on 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.
In the instant case, it has not been disputed by the petitioner that the issues were framed by the trial Court and the parties to the Suit were given opportunity to adduce oral as well as documentary evidence during the proceedings of Regular Suit by the Civil Court. The petitioner proved the execution of the will by providing the attesting witnesses of the will and also adduced other supporting evidence in respect to the attending facts and circumstances of the will. Since the petitioner had ample opportunity to produce the copy of the aforesaid will, but he chooses not to file the same. Further, in the application, no reason has been disclosed for not producing the document before the trial Court and in absence of the same, the Appellate Court has rightly rejected the application. Therefore, there is no illegality or infirmity in the impugned order.
In view of what has been discussed above, the writ petition lacks merit and is hereby dismissed. As the matter is lingering since 1983, the Appellate Court is directed to decide the appeal, in accordance with law, within a maximum period of three months, from the date of presentation of a certified copy of this order.