Yetendra Kumar vs Vinod Kumar and Others

Alok Singh, J.—Petitioner who is defendant in O.S. No. 128 of 2000, preferred present petition under Article 226/227 of the Constitution of India, assailing the judgment and order dated 18.10.2014, passed by the First Appellate Court whereby application moved by the defendant/appellant/petitioner herein under Order XLI, Rule 27, C.P.C. seeking permission to place on record additional documentary evidence was rejected. Brief facts of the present case, inter alia, are that respondent No. 1 filed O.S. No. 128 of 2000 against the petitioner as well as respondent No. 2 herein seeking partition of the suit property saying plaintiff has 1/3 share in the property in question. Suit was decreed by the learned Trial Court vide judgment and decree dated 23.8.2008 thereby declaring that plaintiff is the co-sharer having 1/3 share in the suit property. Preliminary decree dated 23.8.2008 was allowed to attain finality. Thereafter, proceedings were initiated for the purpose of preparation of final decree. Learned Trial Court suggested lots as per the shares of the parties, however, feeling aggrieved, defendant No. 1 petitioner herein preferred First Appeal being First Appeal No. 79 of 2012 in the Court of District Judge, Dehradun which was transferred and was being heard by IInd A.D.J., Dehradun. Appeal was admitted by the learned Appellate Court vide order dated 16.8.2012. When appeal was taken up for hearing on 30.8.2012, learned Counsel appearing for the parties assured the Appellate Court that they would assist the Court in the early disposal and shall maintain status quo during the pendency of the appeal. Vide order dated 15.10.2012 appeal was directed to be listed for 30.10.2012 for final arguments on the appeal. On 30.10.2012, appellant petitioner herein moved an application under Order XLI, Rule 27, C.P.C. seeking permission to place on record additional documentary evidence. Vide order dated 24.12.2012, learned Appellate Court was pleased to observe that application under Order XLI, Rule 27, C.P.C. would be considered with the final arguments on the appeal to find out as to whether documents sought to be produced as additional evidence would be required for the purposes of deciding the appeal/passing the judgment in appeal. Thereafter again vide order dated 6.5.2013, learned Appellate Court directed the parties to argue the appeal on merit enabling the Appellate Court to find out as to whether documents sought to be produced would be required by the Appellate Court for the fair adjudication of the appeal. Thereafter, appellant/petitioner herein approached this Court by way of Writ Petition No. 1153 of 2013 (M/S) assailing the orders dated 24.12.2012 and 6.5.2013. Coordinate Bench of this Court, vide judgment dated 5.3.2014, was pleased to dispose of Writ Petition No. 1153 of 2013 (M/S). Operative portion of the judgment dated 5.3.2014 reads as under:

"The Appellate Court is directed to consider the application paper No. 45C moved by the petitioner 3/appellants under Order XLI, Rule 27, C.P.C. at the time of hearing of appeal and pass appropriate order, in accordance with law."

In compliance of the judgment dated 5.3.2014, passed by the Coordinate Bench of this Court, application was heard and was dismissed by the Appellate Court vide impugned Order dated 18.10.2014. Again feeling aggrieved, petitioner has approached this Court by way of present writ petition.

I have heard Mr. Neeraj Garg, learned Counsel for the petitioner and Mr. B.S. Negi, learned Counsel for the respondents and have carefully perused the record.

Learned Counsel for the petitioner has vehemently argued that as per the judgment of the Apex Court in the case of Union of India (UOI) Vs. Ibrahim Uddin and Another, as relied upon by this Court in Writ Petition No. 281 of 2010 (M/S), Ram Kumar Gupta v. Yograj and another decided on 17th September, 2014, application seeking permission to place on record additional documentary evidence under Order XLI, Rule 27, C.P.C. can only be heard at the time of final hearing of the appeal and cannot be decided prior to the final hearing on the appeal.

To appreciate the arguments advanced by the learned Counsel for the petitioner and dictum of the Apex Court in the case of Ibrahim Uddin (supra), I think it would be proper to refer Order XLI, Rule 27, C.P.C. which reads as under:

"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, of

(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) Whenever additional evidence is allowed to be produced, by an Appellate Court, the Court shall record the reason for its admission."

Having perused Order XLI, Rule 27, C.P.C., I have no hesitation to hold that parties seeking permission to place on record additional documentary evidence during the pendency of the appeal can be permitted to do so only in either of the three contingencies:

(i) If Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(ii) Parties 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

(iii) 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.

In other words, even if additional evidence sought to be produced during the appeal was never refused by the Trial Court to be taken on record and such additional evidence was within the knowledge of the parties seeking permission to adduce additional evidence and if Appellate Court requires such evidence just and proper for the fair adjudication of the appeal may permit the parties to produce such additional evidence during the appeal under Order XLI, Rule 27(1)(b), C.P.C.

In the case of Ibrahim Uddin (supra), Hon''ble Apex Court in paragraph Nos. 49 and 52 has held as under:

"An application under Order XLI, Rule 27, C.P.C. is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the Court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. Arjun Singh alias Puran Vs. Kartar Singh and others, and Natha Singh and Others Vs. The Financial Commissioner, Taxation, Punjab and Others, .

Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the Court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored."

Bare reading of the dictum of the Apex Court as reproduced hereinbefore would reveal that to come to the conclusion as to whether additional evidence sought to be produced during the pendency of the appeal is required to be taken on record for the fair adjudication of the appeal, such application should be heard alongwith the final argument of the appeal.

In my considered opinion, in the (iii) contingency, i.e., Clause (d) of Order XLI, Rule 27, sub-rule (1) of C.P.C., Court has to hear both the parties on the merit of the appeal and has to peruse entire Lower Court record to come to the conclusion that Court requires such additional evidence for the purpose of fair adjudication of the appeal. Meaning thereby, application under Order XLI, Rule 27, C.P.C. is required to be heard alongwith final argument on the appeal if Court is considering additional evidence under Clause (d) of Order XLI, Rule 27(1) of C.P.C. If Appellate Court having perused entire record and having heard learned Counsel for the parties has formed the opinion that additional evidence sought to be produced should not be permitted for the reasons recorded, then, of course, no jurisdictional error can be said to have been committed by the Appellate Court.

There is another aspect of the matter. When Appellate Court made up the mind that application under Order XLI, Rule 27, C.P.C. moved by the petitioner would be considered after hearing the final argument in the appeal, appellant petitioner preferred previous writ petition, however/this Court directed to hear the application prior to the taking decision finally on the appeal and, thereafter, it was heard and decided prior to final decision in the appeal. Again petitioner has filed present petition challenging the order rejecting the application. It seems that appellant/petitioner has ulterior motive not to permit the Appellate Court to decide the appeal and to keep it pending on one ground or another.

Let me now examine as to whether petitioner should be permitted to place on record additional documentary evidence during the pendency of the appeal against the final decree passed in a partition suit?

Undisputedly , preliminary decree passed in a partition suit declaring 1/3rd share of the plaintiff in the suit property was allowed to attain finality.

In my considered opinion, in a suit for partition, after passing of preliminary decree declaring the shares of the parties, different lots are prepared to be allotted to the share holders as per their shares. After hearing the parties, lots are finalized and are allotted to the share holders and they are put in exclusive possession of the lots allotted to them and, accordingly, final decree is prepared and passed. In other words, in a proceeding of final decree, only different lots are to be prepared, allotted as per the shares already declared. Petitioner is not disputing measurement and identity of the suit property to be partitioned. Therefore, documents sought to be filed in an appeal against the final decree seems to be irrelevant in view of the facts determination of the shares have already been finalized in the preliminary decree. Thus, application seeking permission to produce additional documentary evidence is misconceived. In view of the above, writ petition is totally misconceived and is dismissed.