Kartar Chand and Another vs Sheelo Devi and Others

J.P. Singh, J.—Petitioners-Plaintiffs have filed this Revision Petition questioning Additional District Judge, Jammu's order of August 16,

2007 dismissing their application under Order 41 Rule 27 of the CPC whereby they had sought permission for one of the Appellants to appear as

witness in the case, which, according to them, they could not do because of the inexperience and inadvertence of the counsel they had engaged in

the trial court.

Petitioners' learned Counsel, Shri Bachan Lal Kalgotra, submits that being rustic villagers, the Petitioners had gone by the advice of their counsel

in not appearing as their own witness during the trial of the case because the counsel was under a misconception that the statement which one of

them had made in the suit when the Respondents had been set exparte would survive for consideration by the Court despite lifting of ex-parte

proceedings against the Respondents. And that interest of justice would warrant providing an opportunity to the Appellants to substantiate their

claim to the property in dispute by appearing as a witness in the case.

Per contra, Shri R. P. Sharma, submitted that Petitioners had taken numerous opportunities to produce their evidence in the case and their non-

appearance, being intentional, no further opportunity could be allowed to them to fill up the lacunae they had intentionally left in the case, and

additionally because the provisions of Order 41 Rule 27 of the CPC may not permit allowance of additional evidence.

I have considered the submissions made at the Bar.

Powers of the Appellate Court to pass orders for production of documents or allowance of other evidence, is circumscribed for its exercise only

in three situations contemplated by Order 41 Rule 27 of the Code of Civil Procedure. For exercising its jurisdiction under Order 41 Rule 27 of

Code of Civil Procedure, the Appellate Court is thus required to arrive at a finding about the existence of one or the other contingencies

contemplated by three clauses of Order 41 Rule 27 Code of Civil Procedure.

Conditions precedent for application of the provisions of Order 41 Rule 27(1)(a) and (1) (aa) are, however, different from those of Order 41

Rule 27(1)(b)Code of Civil Procedure In cases where provisions of Order 41 Rule 27 (a) CPC are invoked, the Appellant seeking production of

additional evidence will have to satisfy the Court that the Court from whose decree the appeal has been preferred had refused to admit evidence

which should have been admitted. In those cases where the provisions of Order 41 Rule 27(1) (aa) CPC are invoked, the Appellant seeking

permission to produce additional evidence will have to establish that notwithstanding exercise of due diligence, the evidence which he wants to

adduce, was not within hit knowledge or could not, after exercise of due diligence be produced by him during the currency of the suit.

On the other hand, when resort is contemplated to the provisions of Order 41 Rule 27(1) (b) of Code of Civil Procedure, the Appellate Court

is required under law to consider the entire evidence on record and thereafter come to an independent finding as to whether or not any document

which is sought to be produced by the Appellant or any witness(s) proposed to be examined by the Appellant, was necessary for the Appellate

Court, to pronounce judgment. Power under Order 41 Rule 27(b) of CPC may also be exercised by the Appellate Court in case it finds any other

substantial cause, to permit production of additional evidence.

Perusal of Petitioner's application indicates that the case projected by the Petitioners in their application was not covered by the contingencies

contemplated either by Rule 27(1)(a) or Rule 27(1)(aa) of Order 41 Code of Civil Procedure. The case which the Petitioners had set up in their

application was rather based on one of the grounds which they had projected in their memo of appeal which, for facility of reference reproduced

hereunder:

... The facts on record reveal that the Plaintiffs' intention was never to avoid witness box. The fact of the matter is that one of the Plaintiffs had

appeared as a witness and his statement was recorded when the case was proceeding exparte. And then the ex-parte proceedings were set aside

and the Plaintiffs proceeded further to lead evidence in the case and inadvertently the counsel for the Plaintiffs in the muffacil did not produce any

Plaintiff against as witness under the bonafide and honest impression that one of the Plaintiff has appeared, of course, without visualizing the legal

technicalities that the statement of a witness examined during separate proceedings may or may not be read in evidence. However, the Plaintiffs are

ready and prepared to appear in the case to face cross-examination of the Defendant/Respondents if the Hon'ble Court provides an opportunity to

the Appellants/Plaintiffs to be heard. And as appellate court has unfettered powers under rule 27 order 41 of the rules and particularly u/s 151

CPC to permit a party to an appeal to lead additional evidence.

However, the objection that the Appellants have not appeared as their own witnesses in the case was never raised at any stage by the

Respondent's counsel, not even during final arguments. Had the counsel for Respondents raised the objection at that stage the Appellants certainly

would have applied to the learned trial court u/s 151 CPC to permit the Appellants or any one of them to again appear in the witness box. The

learned trial Judge has taken the Appellants by surprise by invoking this almost sole ground to dismiss the case of the Plaintiffs and thus punishing

the Plaintiffs without any dereliction or negligence on their part.

As the case projeced by the Petitioners seeking permission to lead additional evidence was infact one of the grounds which they had projected

in the memo of appeal so the right course available to the 1st Appellate Court was to consider Petitioners' application at the time of consideration

of the appeal itself for final disposal. This is so because it is only at the stage of consideration of the appeal that the Appellate Court would be in a

better position to dwell on the plea which the Petitioners had projected seeking permission to lead additional evidence. Such permission could be

considered for its grant or refusal only if the Appellate Court had required any witness to be examined to enable it to pronounce judgment in the

case or if it otherwise found, any substantial cause to have been made out by the Petitioners for allowing them to appear as their own witness in the

case.

Petitioners-Plaintiffs' application has been rejected by learned Additional District Judge, Jammu on the grounds that Order 41 Rule 27 CPC

would not permit filling up of any lacunae or gap in the evidence which the Petitioners, by omitting to appear as their own witness, had left in the

case and that the application was belated because of its having been filed after about two hears of filing of the appeal.

In view of the above discussion, it is thus apparent that the 1st Appellate Court had erred in rejecting Petitioners' application on the ground that

it had been filed belatedly. This is so because the plea which the Petitioners had projected for the second time in the application under Order 41

Rule 27 CPC stood already raised by them in so many words in their memo of appeal. Rejection of Petitioners' application on the ground of delay

cannot, thus, be justified.

As Appellants' application was not covered by the contingencies contemplated by Order 41 Rule 27(1)(a) and (aa) so the Appellate Court

was required to consider it at the time when it had to take up the appeal for hearing on its merits. It has committed an error apparent on the face of

record in dismissing Petitioners application without going through the merits of the controversy raised in the suit. The order passed by the Ist

Appellate Court cannot, therefore, sustain.

For all what has been said above, allowing this Revision Petition, Additional District Judge Jammu's order of August 16, 2007 rejecting Petitioners'

application is, accordingly, set aside and it is directed that the Ist Appellate Court shall take up the Petitioners' appeal for consideration along with

their application seeking production of additional evidence and pass appropriate orders in view of the provisions of Order 41 Rule27 of the CPC

as may be warranted under law after hearing the parties on the appeal and the application.