Karnail Singh and Others vs Shamsher Singh and Others

Ajay Tewari, J.—This petition has been filed against order of the learned First Appellate Court whereby one application for additional evidence has been allowed(even while dismissing another application for the same purpose).

The respondents had filed the suit challenging sale deed made by Jagir Singh both on the ground of fraud and impersonation as well as on the ground of competency of Jagir Singh to alienate ancestral property. The suit was dismissed. An application under Order 41 Rule 27 CPC was filed praying that revenue record for the year 1930-31 be permitted to be led in evidence since that would prove that nature of the property in the hands of Jagir Singh was ancestral. This application has been allowed by the learned Lower Appellate Court holding as follows:

...The controversy involved regarding the competency of Jagir Singh to execute the sale deed, is such that the additional evidence now sought to be adduced if allowed, will enable the Appellate Court to pronounce judgment in proper and lawful manner and will help the court to adjudicate upon the matter in dispute effectively. Thus, it will substantiate the cause of justice.

Reliance has been placed on various judgments viz. Shyam Gopal Bindal and Ors. v. Land Acquisition Officer and Anr. reported as 2010 (1) CCC 707 (S.C.); Phuman Singh and Anr. v. Hazara Singh and Ors. reported as 2009 (3) CCC 694 (P&H); Ganpat and Anr. v. Lachhman and Ors. reported as 2008 (4) CCC 298 (P&H) and Guriant Singh Major and Ors. v. Surjit Singh and Ors. reported as 2004 (3) PLR 469.

Learned Counsel has argued that firstly the application as filed did not contain the necessary ingredients as spelled out in Order 41 Rule 27-1(a) and (aa). It was not even pleaded as to why the respondent could not lead this evidence. The second limb of his argument is that by this device the respondents just wished to fill up the lacuna in their evidence. Reliance has been placed upon K.R. Mohan Reddy Vs. Net Work Inc. rep. Tr. M.D., ; Baljiner Kaur wife of Gurmit Singh v. Rajesh Kumar Son of Gurdev Singh reported as 2009 (1) PLR 554 and Rachhpal Singh v. Sohan Singh reported as 2007 (4) RCR (Civil) 166. Even though in K.R. Mohan Reddy''s case (supra) the Hon''ble Supreme Court held as follows:

The High Court, in our opinion, failed to apply the provisions of Order 41 Rule 27 of CPC in its correct perspective. Clauses (a), (aa) and (b) of Sub-rule (1) of Rule 27 of Order XLI refer to three different situations. Power of the appellate court to pass any order thereunder is limited. For exercising its jurisdiction thereunder, the appellate Court must arrive at a finding that one or the other conditions enumerated thereunder is satisfied. A good reason must also be shown as to why the evidence was not produced in the trial Court.

However, in para 21 of the said judgment the Hon''ble Supreme Court held as follows:

Appellate Court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial Court, but it will be different if the Court itself require the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the Court. But mere difficulty is not sufficient to issue such direction. While saying so, however, we do not mean that the Court at an appropriate stage would be precluded from consider the applicability of Clause (b).

In the present case a perusal of the reason weighing with the Appllate court in allowing the application shows that the appellate court recorded a finding that the additional evidence now sought to be adduced would enable him to pronounce judgment in proper and lawful manner and will help the court to adjudicate upon the matter in dispute effectively. In Baljinder Kaur''s case (supra) this Court held as follows:

...A perusal of the order dated 17.2.2005 dismissing the her application for leading additional evidence as reproduced by the appellant shows that the evidence sought to be produced by the appellant by way of additional evidence was within her knowledge but she did not produce the same earlier at the time when she was leading evidence in the trial court and no plausible explanation has been given for not producing this evidence earlier.

In that case the additional evidence which was sought to be adduced was by way of examining a handwriting expert. It cannot be denied that the report and the examination of a handwriting expert is a best opinion. In Rachhpal Singh''s case (supra), a very salient factor is that the application for additional evidence was filed before this Court in Regular Second Appeal. Even in that judgment it was held as follows:

Reliance was also placed on Gurnek singh and Anr. v. Gurbachan Singh and Ors. 1993 (1) RRR 146 : (1992) 2 PLR 205. In this case the facts of the case are quite distinguishable. In Gurnek Singh''s case an application under Order 41 Rule 27 CPC was moved before the first Appellate Court to produce the revenue record by way of additional evidence. The said application was declined. It was in the circumstances that application under Order 41, Rule 27 CPC was allowed by the High Court on the ground that the proposed additional evidence would not cause prejudice to the other side and the authenticity of the revenue record cannot be doubted.

In that very judgment paragraphs 32 and 34 are as follows:

According to the learned Counsel for the appellant the case of the plaintiff-appellant falls in Clause (b) when the Court is of the opinion during hearing of the case that if it requires any document so as to enable it to pronounce the judgment, in that eventuality it is the duty of the Court to permit the additional evidence. Reliance was made to Syed Abdul Khader Vs. Rami Reddy and Others, wherein it is observed as under:

By a catena of decisions of this Court it is well established that Order 41, Rule 27 CPC does not confer a right to the party to produce additional evidence. But if the court hearing the action requires any document so as to enable it to pronounce judgment, it has the jurisdiction to permit additional evidence to be produced. The High Court has given cogent reasons why it felt impelled to permit production of registered sale deeds so as to enable it to pronounce judgment in the matter. If the High Court considered the production of registered sale deeds essential so as to enable it to pronounce judgment there is no reason why the Supreme Court should interfere with the discretionary power properly exercised by the High Court in the interest of justice. Even otherwise the High court was justified in permitting additional evidence to be produced when it consisted of registered sale deeds. Such additional evidence has to be read as part of the record. Once these registered sale deeds are taken into consideration, a part of the decree of the trial Court granted in favour of the plaintiff awarding him possession of the land on the only ground that the sale deeds in respect of those pieces of lands were produced, could not be maintained and the High Court rightly allowed the appeal of original defendant Nos. 8, 11 and no exception can be taken to it.

Reliance was also placed on another judgment rendered in Savitri and Ors. v. Manphool and Ors. 1992 (1) RR 395 : 1992 (1) PLR 108 which is reproduced as under:

Held that the appellate court can admit additional evidence it if is required to enable to pronounce judgment. The court may be able to pronounce judgment even in the absence of additional evidence, but if the production of additional evidence can enable the Court to dispose of the appeal in a more satisfactory manner, conditions mentioned in the sub-clause will be satisfied. The expression "substantial cause" mentioned in the sub-rule confers a wide discretion on the appellate Court to admit additional evidence when the ends of justice require it. It can do so even if it can pronounce judgment on the basis of material on record. But the additional evidence must be decisive and conclusive in character and free from suspicion.

A perusal of these judgments as well as the constraint of Article 227 of the Constitution itself makes it clear that this Court can interfere only where jurisdiction has been exercised with such material irregularity as would disturb the judicial conscience. In the case in hand no such material irregularity has been pointed out. The learned Lower Appellate Court has taken care of the interest of the petitioners by allowing them also adequate opportunity to rebut the evidence which may be led on behalf of the respondents. Learned Counsel has also argued that the order also suffers from the vice that even the costs of Rs. 1000/- which have been imposed are highly inadequate. I find force in this argument.

The petition is consequently dismissed with the clarification that the respondents shall pay costs of Rs. 10,000/-before they are allowed to lead additional evidence.