Matter is taken in the revised cause list.
None present on behalf contesting respondent.
Heard Sri R.S. Pandey, learned counsel for petitioner, learned Standing Counsel and perused the record.
By means of the present writ petition, the petitioner has challenged the order dated 21.10.1991 (Anneuxre No. 7) passed by VIIth Additional District Judge, Faizabad in Civil appeal No. 170/89 (Shreedhar Vs. Angad Singh and others) as well as order dated 26.11.1991 passed in Civil Appeal No. 170 of 1989 by respondent No. 1.
Fact in brief as submitted by learned counsel for petitioner are that initially Sri Angad Singh and others/plaintiffs filed a suit for cancellation of sale deed ( registered as Regular Suit No. 84 of 1982), when the same was pending before trial court an application under Order VI Rule 17 C.P.C. for the amendment in the written statement has been moved by the defendants/respondents, dismissed by order dated 22.05.1986. Aggrieved by the said fact, a civil revision No. 90 of 1986 filed in the court of District Judge, Faizabad, by an order dated 23.09.1988 dismissed.
Subsequently, the Trial Court decreed the suit by means of the judgment and decree dated 15.11.1991 (Annexure No. 4). So, an appeal has been filed (registered as Civil Appeal No. 170/89 (Shreedhar Vs. Angad Singh and others).
During the pendency of the appeal, an application under Order 41 Rule 27 allowed by order dated 22.10.1991 by respondent No. 1.
Thereafter, the petitioners moved an application (numbered as paper No. 54-C) for summoning of certain documents, rejected by order dated 26.11.1991, hence present writ petition has been filed.
In view of the abovesaid factual background, Sri R.S. Pandey, learned counsel for petitioner has assailed the impugned order dated 22.10.1991 passed by respondent No. 1 on the ground that once the application for amendment moved by the defendants/respondents at the trial stage has been rejected by order dated 22.05.1986 thereafter a revision (revision No. 90 of 1986) dismissed by judgment and order dated 23.09.1988. Accordingly, the impugned action on the part of respondent No. 1 allowing the application under Order 41 Rule 27 is an action which is wholly void ab initio and the same cannot be done because as there is no pleading by the respondent for the said purpose, thus, the impugned order is beyond the scope of the provisions as provided under Order 41 Rule 27(1)(aa) C.P.C. In support of his contention, he rely on the judgment given by Supreme Court in the case of Ram Sarup Gupta (Dead Vs. Bishun Narain Inter College and others, AIR 1987 SC 1242, (specially on paragraph Nos. 6 and 7), so the impugned orders are liable to be set aside.
In order to decide the controversy involved in the present case, it is appropriate to go through the provisions as provided under Order 41 Rule 27(1) C.P.C. quoted hereinbelow:-
"Rule 27- Production of additional evidence in Appellate Court-- (1) The parties to an appeal shall not been titled 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, or [(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."
In Order 41 Rule 27(1)(b) there are two important ingredients namely 'requires and 'for any substantial justice' in order to invoke the said provision.
Thus, as per the said provision of "the requirement must be of the court and not of any party to the suit. When the court is of opinion that without fresh evidence it cannot pronounce judgment and perform its functions, then and then only will it be allowed.
The rule is clearly not intended to allow a litigant who had been unsuccessful in the lower court to patch up the weak parts of his case and to fill up the omission in appeal. Additional evidence can be admitted only where the Appellate court requires it, i.e. finds it needful, to enable it to pronounce judgment, or for any other substantial cause. In either case it must be the court that requires it. The legitimate occasion for the exercise of this discretion is when on an examination of the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the court, of fresh evidence, and an application is made to import it. It may well be that the defect, but the requirement must be the requirement of the court upon its appreciation of the evidence as it stands (See. Arjan Vs. Kartar, 1951 SCR 258).
Now reverting to the facts of the present case, while passing the judgment in question by the O.P. No. 1 has given the following findings:-
"समस्त तथ्यों को विचार करने के पश्चात में इस निष्कर्ष यार हुईं की विवादित तथ्य की प्रभावी रूप से सिस्तरित करने के लिए अपेअलार्थी द्वारा प्रस्तुत अभिलेखों की प्रविष्टी पत्रावली पर किया जाना न्याय सांगत है उत्तरदाता को छातिपुर्ति से पूर्णतया समायोजित किया जा सकता है क्योंकि इन अभिलेखों से उत्तरदाता के अधिकारों यार कोई प्रतिकूल असर नहीं परेगा और उत्तर्दाताको इन अभिलेखों को प्रयुत्तरित करने का पूर्ण अवसर प्राप्त हैं |"
In view of the abovesaid findings, the action on the part of O.P. No. 1 thereby allowing the application under Order 41 Rule 27(1)(b) is for proper adjudication of the dispute involved in the present case hence there is neither illegality nor infirmity committed by the appellate court in the matter in question.
Accordingly, the submission as made in the present case that the impugned action on the part of O.P.No. 1 thereby passing the order in question is illegal and arbitrary as initially the application for amendment moved by the contesting defendants/respondents before the trial court has been rejected thereafter the revision has been filed which too was dismissed, so at the appellate stage O.P. No. 1 should not have allowed the application for taking additional document etc. as per the provisions as provided under Order 41 Rule 27 (1)(aa) is wholly misconceived as in the present case the said provision has not been invoked by the O.P. No. 1 in allowing the application in question. Thus, the petitioner cannot derive any benefit from the argument as advanced on his behalf or on the reliance as placed by his counsel in the case of Ram Sarup Gupta(dead) (Supra), as the same is not applicable on the facts and circumstances of the present case, so rejected.
In the result, the writ petition fails and is dismissed.
No order as to costs.
Order Date :- 23.7.2012 Ravi/