(C.M. Application No. 221808 of 2013) Heard Sri Vikash Budhwar, learned counsel for appellant, Sri M.D. Singh Shekhar, learned Senior Advocate assisted by Sri Kshitij Shailendra learned counsel for respondent and perused the record.
Present appeal has been filed by the defendant-appellant, challenging the judgment and decree dated 24.04.2012 passed by Additional District & Sessions Judge, Court No. XII, Moradabad in Civil Appeal No. 101 of 2011.
Factual controversy involved in the presnt case are that M/S Hindustan Petroleum Corporation Limited is a Government of India Enterpirses having its registered office at 17 Jamshedji Tata Raod, Mumbai is engaged in refining, marketing and selling of motor spirit, high speed diesel, petroleum products etc. In order to set up its retail outlet for supply of petroleum products entered into a lease with plaintiff-respondent and taken a lease of piece of land situated at Rampur Road near Miglani Cinema, Moradabad. The said lease deed has been executed on 02.12.1999 between plaintiff-respondent and defendant-appellants w.e.f. 01.11.1997 for a period of 10 years on a rent of Rs. 5500/- per month and as per clause 3(g) of the lease deed the appellant has to exercise option for renewal of the lease by way of written request before the expiry of the term.
As per version of the appellant, he has send a letter dated 18.10.2007, but the said fact has been denied by the plaintiff-respondent taking a defence that the appellant-defendant has failed to exercise their option as per clause 3 (g) of the lease deed dated 02.12.1999, so after giving a notice under Section 106 of the Transfer of Property Act, a suit for eviction has been filed (O.A. No. 5 of 2008) before the Civil Judge (Sr. Div.) Moradabad (Badri Nath Khanna Vs. Hindustan Petroleum Corporation Limited and others) seeking the relief that defendants-appellants be evicted from the land in question and recovery of the rent tot he tune of Rs. 48,125/- along with the cost of the suit being 2500/- on 04.01.2008.
During the pendency of the matter before the trial court, an application dated 26.05.2011 supported by an affidavit of Sri Vijay Kumar, Sales Officer of Hindustan Petroleum Corporation Limited has been moved in order to bring two documents on record, namely, letter dated 18.10.2007 written by Sri Subodh Batra, Chief Regional Manager & Duly Constituted in exercising their option to extend the lease deed for a further period of ten years w.e.f. 01.11.2007 on rent, covenants and provisions stated in the lease deed dated 02.12.1999 as well as a receipt (money order). The said application has been allowed by order dated 27.05.201, reads as under:-
"Heard. Allowed.
Keeping in view the relevancy of papers with the subject matter of suit, papers are taken onr ecord with a cost of Rs. 4000/- only."
And from the perusal of the record, it also transpires that plaintiff-Badri Nath Khanna has appeared as P.W. -1 to establish his case whereas from the side of the defendant-appellant, Sri Vijay Kumar, Sales Officers has appeared as witness (DW-1) and his statement was recorded on 21.07.2011.
By means of the judgment and decree dated 15.09.2011 the trial court/Civil Judge (Sr. Div.), Moradabad has dismissed the suit. Thereafter, an appeal was filed by plaintiff/Sri Badri Nath Khanna registered as Civil Suit No. 101 of 2011 (Badri Nath Khanna Vs. Hindustan Petroleum Corporation Limited and others), allowed by judgment and decree dated 24.04.2012 passed by Additional District and Sessions Judge, Court No. 13, Moradabad, the same is challenged in the present second appeal.
During the pendency of the present appeal, on behalf of the defendant-appellant, an application under Order 41 Rule 27 has been moved supported by an affidavit of Sri Raj Kumar Jindal, working as Chief Regional Manager, Hindustan Petroleum Corporation Limited by which two documents annexed as Anneuxre Nos. 1 and 2 to the affidavit, namely, (1) letter written by defendant-appellant in purport exercise of right under Right to Information Act, 2005 had sought information with regard to the fact as whether the postal receipt No. 1595 on which money order receipt is written was issued ro the purpose of sending of registered post or not. (2) The information sent by Superintendent Post ofices, M.G. Marg, Meerut informing the defendant-appellant that receipt No. 1595 of 2007 though a money order receipt but it has been issued for the registered post, were sought to be brought on record as evidence.
Sri Vikash Budhwar, learned counsel for appellant while pressingt the said application has argued that keeping in view the nature of documents which are sought to be brought on record they are necessary for the disposal for the controversy involved in the present case, thus, keeping in view the said facts, specially the provisions as provided under Order 41 Rule 27 (1)(b) CPC, the said document be taken on record. In support of his argument he has placed reliance on the judgment given by this Court in the case of Amrit Lal Vs. Santosh Kumar and others, 2014 (102) ALR 184, relevant paragraph quoted as under:-
"The Apex Court in A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalnai Sangam, represented by its President etc. 2012 (3) CCC 001 (SC), has held that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties. In Dalip Singh v. State of U.P. And others 2010 (2) SCC 114, the Apex Court has observed that truth constitutes an integral part of the justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the Courts irrespective of the consequences. However, post-independence period has been drastic changes in our value system. In Maria Margarida Sequeria Fernandes and others v. Erasmo Jack do Sequeria (Dead) through L.Rs. : 2012 (1) CCC 344 (SC), the Apex Court has held that truth is the basis of justice delivery system. Truth alone has to be the foundation of justice. The entire judicial system has been created only on discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty."
Sri M.D. Singh Shekhar, learned Senior while opposing the application submits that the application moved by the appellant-defendant does not come within the ambit and scope of Order 41 Rule 27 CPC.
He further submits that as a matter of fact on record, when the matter was pending before the trial court, once their application dated 26.05.2011 has been allowed by the court below by an order dated 25.07.2011 then at that stage they had to move application in order to bring documents in question on record which they sought to brought on record by means of present application but no heed has been paid in this regard, so now at this stage, they cannot be allowed to get the benefit of order 41 Rule 27 CPC in order to bring the said documents on record (which are photocopy).
Learned Senior counsel further submits that so far as the argument advanced by learned counsel for appellant that in view of the provisions as provided under Order 41 Rule 27 (1)(b) CPC, the said document should be taken on record is wholly misconceived because as per the said provision, the appellate court has got power to take any document on record in order to pronounce judgment, or for any other substantial cause. The said position does not exists in any case and there is no pleading in this regard in the application moved on behalf of the appellants, hence the application in question is liable to be rejected.
After hearing learned counsel for parties in order to decide the controversy in question, it would be appropriate to go through the provisions of Order 41 Rule 27(1) C.P.C. which reads as under:-
"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."
Under Sub-Rule (1) (a) an appellate court can direct additional evidence to be recoded if the trial court had improperly rejected to record evidence which a party was prepared to produce. (See Offl Liquidator vs. Raghava, A 1974 SC 2069). However, if the document was not tendered at the trial, Rule 27 (1) (a) does not apply coupled with the fact that when no explanation is given why those documents were not produced before the trial court, they cannot be received as additional evidence (See Raj Kishore Mishra v. Meena Mishra, AIR 1995 ALL 70). Moreover, the permission to produce additional evidence cannot be given unless it is established that such evidence was not within the knowledge or could not be produced after due diligence at the time of passing of decree.
Further on plain reading of Sub-rule (1)(aa) of Order 41 rule 27, the position which emerges out is that when application is made at a late stage to put in evidence res moviter ad notitiant preventa, one of the primary duties of the applicant is to show that it was owing to no want of diligence on his part that the matter/evidence was not discovered before, so he was not able to file the same before the court below and if a appellant falls to satisfy the said condition his application to produce the same at a belated stage is liable to be rejected.
The party seeking to produce additional evidence, whether oral or documentary additional evidence, is to establish that notwithstanding to exercise of due diligence, such evidence was not within his knowledge or could not, after 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 and in order to bring the additional evidence on record, the appellant should establish that he made application to get the certified copies prior to the disposal of the suit, and they were not available and adjournment was refused by the Court. Where it is not stated that the trial court refused to admit the documents or that the documents were not available at the time of trial, they cannot be admitted in the appellate court to fill up the gaps in the evidence or to better the case of the appellant.
Before a party is allowed to produce additional evidence he has to establish that the evidence was not in existence, 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.
Sub-Rule (1)(b) of Order 41 Rule 27 CPC has two important ingredients, namely, (a) 'requires' (b) for any substantial justice' in order to invoke the said provision.
As per the said provision "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 because requires means needs or finds needful or that it is necessary for doing real justice (substantial justice) and for just decision of an appeal, the appellate Court has discretion to take such documents on record.
Accordingly, , the true test 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. The mere discovery of fresh evidence subsequent to the decision of the lower court is not a ground for its admission in appeal unless the appellate court requires that evidence to enable it to pronounce judgment. So, additional evidence should not be permitted at the appellate stage to enable a party to remove certain lacunae and to fill in gaps. It should be proved that the evidence sought to be let in was not available at the trial. The rule does not authorise admission of additional evidence for the purpose of removal of lacunae and filling in gaps in evidence.
Further, "any other substantial cause" need not be ejusdem generis with the cause stated in the earlier part of the rule and the words "or for any other substantial cause" must be read with the word "requires" which is set out at the commencement of the provision, so that it is only where for any other substantial cause, the appellate court requires additional evidence.
Order 41 Rule 27 CPC is clearly not intend 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, Parsotim Thakur and others Vs. Lal Mohan and others, AIR 1931 P.C. 143).
Further, as stated above, when the matter was pending before the trial court, on an application moved by the applicant dated 26.05.2011 by an affidavit of Sri Vijay Kumar, Sales Officer, two documents were brought on record. i.e. letter dated 18.10.2007 written by Subodh Kumar Batra, exercising option for extension of the lease as well as receipt/money order receipt and the said documents were taken on record by means of the judgment and order dated 27.05.2011. Thereafter, no steps were taken by the appellant in order to prove the validity of the said documents as per the law which governs the field rather only the statement of Sri Vijay Kumar, Sales Officer has been recorded.
Thus, keeping in view the said facts as well as the power under Order 41 Rule 27 (1)(b) which should be exercised cautiously and sparingly and it has to be proved that the additional evidence was not available at the trial; additional evidence cannot be allowed for the purpose of removing lacuna and filling in gaps in evidence. The party should not be allowed to fill up the lacuna at the appellate stage. He should not be allowed to patch up the weak parts and fill up omissions in the Court of appeal. Under O.41, R.27, Cl.(1) (b), C.P.Code, if the Court requires a document or a witness to be examined, additional evidence can be admitted provided it is required to enable the Court to pronounce the judgment or it may be for any other substantial cause. In either case, additional evidence can be admitted provided it is required by the Court. It is only on examining the evidence as it stands if the Court finds some inherent lacuna or defect becomes apparent, that the Court on appreciation of evidence admit the additional evidence. However, it is the requirement of the Court and not the requirement of the party and evidence sought to be adduced should have direct and important bearing on the main issue in the case. The said position does not exit in the present case.
Moreover, the provisions of O.41, R.27 (1) (b) has not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal; it does not authorise any lacuna or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way. Provision of O.41, R.27(b) does not apply merely to permit a defaulting party to fill in the lacuna by producing evidence at appellate stage which had otherwise not been produced in the trial court, nor does the necessity of Court to require additional evidence for enabling it to pronounce judgment takes within its ambit requirement of Court to pronounce judgment in a particular manner. The enabling power under Cl. (b) of O.41, R.27 cannot be exercised merely to overcome the difficulty of defaulting party indirectly what cannot be done directly under Cls.(a) and (aa) of the rule. The requirement of the Court to enable it to pronounce judgment cannot be equated with enabling a party to produce evidence which he could produce but has failed to produce to prove his case to enable the appellate Court to announce judgment, otherwise. Mere fact that party has failed to produce evidence which it could have produced to prove the case set up by it does not amount to lacuna in evidence. It leads the Court to conclusion that party has failed to prove case set up by it, and the Court is in a position to announce its judgment on that basis.
In view of the above said discussions and the facts as taken by the appellant in order to bring the additional evidence as per the provisions of Order 41 Rule 27 (1) C.P.C. , I do not find that on the said facts, the application in question can be allowed as per the discussions made herein above so the same is rejected.
List the matter in the next cause list.
Order Date :- 19.8.2014 Ravi/-