Khalil vs Smt. Nisar Begum and Others

V.K. Shukla, J.—In Second appeal No. 985 of 2006, Shaukat (since deceased) v. Smt. Nisar Begum and Anr. this Court proceeded to pass following:

After respective arguments have been advanced, undisputed factual position is that in the present case trial court while proceeding to decide the suit as well as issue Nos. 1, 2 and 3 on the basis of scrutiny and evidence which was available on record and including own statement made by the Plaintiff''s witnesses, recorded categorical finding of fact that Plaintiff-Respondent No. 1 was not at all owner in possession of the property in question and further sale deed in question had not at all been executed by legal heir and representative of Palta, as it was not at all established that Nizammuddin, Jalaluddin and Khurshid were the legal heir of late Palta. The judgment of the appellate court has also been looked into. Appellate court while deciding the issue No. 2 on the basis of entries made in Municipal records has proceeded to hold that Palta was the owner of the property and has proceeded to record finding that Shaukat has the capacity of the tenant, but at no point of time, appellate court has proceeded to reverse categorical finding of fact which has been recorded that said legal heirs and representatives who executed sale deed in favour of the Plaintiff-Respondent No. 1 had no authority to execute the same and said issue has been dealt with by the appellate court by proceeding to mention that Defendant-Appellant has no authority to question the validity of the same. The view of the lower appellate court is totally erroneous on this score, inasmuch as precise case of the Plaintiff-Respondent No. 1 had been based on the said sale deed and on the basis of said sale deed they have acquired title and were entitled for possession, then this issue went to the root of the matter and in all eventuality ought to have been answered as only lawful owner is entitled for decree of eviction, in this background lower appellate court has clearly fallen in error, as such judgment and decree of lower appellate court can not be sustained.

Consequently, judgment and decree dated 26.8.2006 passed by the Additional District Judge, Court No. 13, Agra in Civil Appeal No. 381 of 1998 (Smt. Nisar Begum v. Shaukat through his heirs and legal representative No. 1/1 to 1/6 and Anr.) is set aside. Matter is remitted back to lower appellate court for deciding afresh, preferably within period of two months from the date of production of certified copy of this order.

With these observations, present appeal is allowed.

After the said judgment had been delivered, matter was taken up by appellate court, then an application was moved by the Petitioner under Order 41 Rule 27 Code of Civil Procedure, which was objected to, and thereafter, the appellate court proceeded to reject the said application on the ground that none of the prerequisite conditions provided for undertaking additional evidence was fulfilled. At this juncture, present writ petition has been filed.

Sri J.S. Pandey, Advocate, learned Counsel for the Petitioner contended that the documents in question were necessary, as it would have enabled the concerned appellate court in pronouncing the judgment in its correct perspective, as such writ petition deserves to be allowed.

Countering the said submissions, Sri Parvez Alam, Advocate, appearing for the Respondents, on the other hand contended that no good ground has been made out to interfere with the order impugned.

After respective arguments have been advanced, view point of Hon''ble Apex Court in the matter of taking additional evidence under Order 41 Rule 27 CPC at the appellate stage, including the second appellate stage is being taken note of, in the case of Eastern Railway Administration v. Bhagwan Das (D) by L.Rs. 2008 (3) AWC 2898. In the said case, Hon''ble Apex Court has taken the following view:

Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 Code of Civil Procedure, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 Code of Civil Procedure. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said rule are found to exist. The circumstances under which additional evidence can be adduced are:

(i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, clause (a) of sub rule (1) or

(ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, clause aa, inserted by Act 104 of 1976 or

(iii) 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. Clause (b) of Sub-rule (1).

It is plain that under Clause (b) of Sub rule (1) of Rule 27 Order 41 Code of Civil Procedure, with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it ''requires'' to enable it to pronounce judgment ''or for any other substantial cause''. The scope of the rule, in particular of Clause (b) was examined way back in 1931 by the Privy Council in Parsotim Thakur and Ors. v. Lal Mohar Thakur and Ors. While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows:

Under Clause(1)(b) it is only where the appellate Court ''requires'' it, (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but ''when on examining the evidence as it stands some inherent lacuna or defect becomes apparent.

Again in K. Venkataramiah v. A. Seetharama Reddy and Ors. a Constitution Bench of this Court while reiterating the afore-noted observations in Parsotim''s case (supra), pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence ''to enable it to pronounce judgment'' but also for ''any other substantial cause''. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence ''to enable it to pronounce judgment'', it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits."

On the parameters as noted down in the aforesaid judgment, the order passed by the appellate court has been perused. The Appellate court has considered the matter and has found that the case in hand does not fall within the first situation under which additional evidence can be adduced and even second situation is not being fulfilled, as the parties seeking production of additional evidence have failed to establish that notwithstanding the exercise of due diligence such evidence was not within the knowledge and notice or even after exercise of due diligence, could not be produced at the time when decree appealed against was passed.. The document sought to be produced has been referred to and it has been specifically mentioned that all these documents were in the knowledge and notice of the applicant, who sought to produce the aforesaid additional evidence, as such condition No. 2, which permits to adduce additional evidence is also not attracted. Third facet of the matter has also been considered. 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 has examined the said document and has clearly proceeded to mention that said document at the best would lead to the situation that at the time when said document had been executed, possession was there, whereas fact of the matter is that the Appellant herself has proceeded to accept Defendant No. 2 as sikmi licensee of the property in question. In this background, it has been mentioned that for proper adjudication of appeal said documents are not required, and even hibnama also does not support the claim of the Petitioner.

Once objective consideration has been done, by recording categorical finding that none of the pre-requisite terms and conditions for taking additional evidence on record,as per the parameters of Order 41 Rule 27 Code of Civil Procedure, are in existence, then this Court in exercise of its authority of judicial review cannot come to the rescue of Petitioner.

Consequently, present writ petition is dismissed.