Kunti Devi vs Sudershan Singh

Dr. Bharat Bhushan Parsoon, J.—Vide impugned order (Annexure P-6) allowing application under Order XLI Rule 27 CPC, Ashwani Kumar, attesting witness of the Will dated 1.4.1999 was permitted to be examined, the court below came to the conclusion that examination of witness Ashwani Kumar was even otherwise required for advancing the cause of justice and ends of justice warranted that he should be examined. In short, the court felt that this evidence is essential for just decision of the case.

Challenging this order in the revision petition, plea of the petitioners is that when this witness had been given up by the respondents-defendants themselves, they could not have been allowed to examine this witness. It is claimed that the respondents-defendants wanted to fill up lacuna in their case.

Plea of the respondents, on the other hand, is that the court had nowhere denied examination of Ashwani Kumar and it was rather the volitional act of the respondents-defendants that they before the lower court had given up witness Ashwani Kumar on the plea that he was won over by the opponents. It is claimed that since proving of a Will requires at least one attesting witness to be examined, the respondents-defendants are even running a risk that his testimony may go against them, he being a witness won over, by the opponents but since for proving the Will, his examination is necessary, the Appellate Court had rightly allowed it for just decision of the case.

Counsel for the petitioners-plaintiffs citing Sohan Singh and Another Vs. Amrik Singh and Others, has urged that if a witness once had been given up, he cannot be allowed to be examined during the course of second appeal.

Court which hears regular second appeal is not a court of facts. It is a court of law. So far as court of first appeal is concerned, it continues to be a court of fact as first appeal is continuation of the suit and matters of facts may be agitated before such court as a matter of legal right. In this authority, additional evidence was disallowed in Second Appellate Court but in our case, such evidence has been allowed in the First Appellate Court.

Counsel for the respondents citing Ashok Kumar Vs. Aman Kumar and Others, has urged that such evidence is permissible to be led additionally even if it is to fill up a lacuna. At this stage, reference may be made to para 4 and 5 of this authority which itself is based on a verdict of Hon''ble Supreme Court of India. The said text of the judgment is reproduced as below:

"4. A wide discretion has been conferred by the Code to refuse or to accept the additional evidence. I am fortified by my this view, from the judgment delivered by the Apex Court in the case of Mahavir Singh and Others Vs. Naresh Chandra and Another, wherein it was observed as under :-

"Section 107 CPC enables an appellate court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order 41 Rule 27 CPC. The principle to be observed ordinarily is that the appellate court should not travel outside the record of the lower court and cannot take evidence on appeal. However, Section 107(d) CPC is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are bound to exist. The court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right to the admission of such evidence and the matter is entirely in the discretion of the court, which is, of course, to be exercised judiciously and sparingly.

While further elaborating the section, the Apex Court in the aforesaid case elaborated the words "to enable it to pronounce judgment" as used in Order 41 Rule 27(b) CPC the ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of the court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence, therefore, the old perception stating that no additional evidence could be accepted for filling up the lacuna has been removed by the Apex Court in Mahavir Singh''s case (supra), rather it observed that words "or for any other substantial cause" must be read with words "requires", it means that the court could exercise its power of accepting the additional evidence when it requires for any substantial cause."

Looking from yet another angle, once the court passing the impugned order has itself concluded that the evidence sought to be produced, being substantial cause is required for just decision of the suit, the case comes under Order XLI Rule 27(1)(b) which for ready reference is reproduced as below:

"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."

Keeping in view the entirety of facts and circumstances, no ground is made out to interfere with the impugned order dated 19.11.2012. Thus, affirming the same, this petition being without any merit, is dismissed.