Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 1147 of 2019 Petitioner :- Jamil Khan And 3 Others Respondent :- Udairam And 7 Others Counsel for Petitioner :- Manish Kumar Nigam
Hon'ble Anil Kumar,J.
Heard Shri Manish Kumar Nigam, learned counsel for the petitioners.
By means of the present writ petition, the petitioners have challenged the impugned order dated 04.02.2019 passed by Additional District Judge, Anoopshahar, Bulandshahar in Misc. Civil Appeal No.57 of 2018 "Ayub Khan and others vs. Udairam and others" by which an application moved under Order 41 Rule 27 read with Section 151 C.P.C. has been rejected.
Facts in brief of the present case are that father of the petitioner had filed Original Suit No.20 of 2016. During the pendency of the said suit, father of the petitioners died and petitioners were substituted as legal heirs. Thereafter, an application for temporary injunction was also moved by the petitioners registered as paper no.6-C under Order 39 Rule 1 and 2 C.P.C., which was reje4cted by the trial Court vide its judgment and order dated 20.12.2018.
Aggrieved by the said order, an appeal bearing Misc. Appeal No.57 of 2018 was file3d by the petitioners. On 31.01.2009, an application under Order 41 Rule 27 of C.P.C. bearing No.15C-2 for taking the additional evidence in appeal, rejected vide order dated 04.02.2019 passed by Additional District Judge, Anoopshahar, Bulandshahar.
Learned counsel for the petitioner submits that the appellate court has not given any finding that on what consideration, the petitioner's application moved under Order 41 Rule 27 of C.P.C. bearing No.15C-2 for taking the additional evidence on record in an appeal has been rejected. The reasoning given by the appellate court while rejecting the application in question is erroneous and is contrary to mandate as provided under Order 41 Rule 27 C.P.C., hence, the impugned order is liable to be set aside.
I have heard learned counsel for the petitioner and gone through the records.
In order to decide the controversy in the present case, I feel appropriate to go through the provisions as provided under Order 41 Rule 27(1) CPC 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."
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 fails 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, is to establish that notwithstanding to exercise of due diligence, such evidence was not within his knowledge or could not be filed, 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 make 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.
Order 41 Rule 27 CPC 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. (See. Arjan Vs. Kartar, 1951 SCR 258, Parsotim Thakur and others Vs. Lal Mohan and others, AIR 1931 P.C. 143).
Hon'ble the Apex Court in the case of Government of Karnataka and another Vs. K.C. Subramanya and others, 2014 (2) AWC 1155 (SC), while interpreting the provisions as provided under Order XLI Rule 27 (1) (aa), held as under:-
However, we do not feel impressed with this argument and deem it fit to reject it in view of Order XLI Rule 27(1) (aa) which clearly states as follows:
(a) .........
(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) ..........
On perusal of this provision, it is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum.
It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specificcally incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed to be done at his leisure or sweet will."
Hon'ble the Apex Court in the case of Lekhraj Bansal Vs. Stateof Rajasthan and another, 2014 (3) AWC 2751 (SC), in paragraph No. 7 has held as under:-
"The parties to an appeal shall not be entitled to produce additional evidence in the appellate court unless the conditions stipulated under Order 41 Rule 27 Code of Civil Procedure are satisfied. It is not the case of the Appellant that the trial court had refused to admit the said evidence which ought to have been admitted. It is also not the case of the Appellant that the said evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him during pendency of the suit before the trial court. On the other hand it is vehemently contended that the said evidence namely the document was filed but was omitted to be tendered in evidence and got exhibited in the suit. The lower appellate court elaborately considered the factual matrix and held that the Appellant has not satisfied any of the conditions stipulated under Order 41 Rule 27 and hence is not entitled to produce additional evidence. In our view the said finding has rightly been confirmed by the High Court."
In view of the abovesaid facts, the word which got an important role for application of the provisions of Order XLI Rule 27 (1) (aa) CPC in order to produce additional evidence at appellate stage which could not be brought by evidence at the stage of trial is"due diligence".
Reverting to the facts of the present case, the sole ground which is to be taken in the present case, the document which is sought to be brought by way of additional evidence at the appellate stage was obtained by the petitioner after filing of the appeal. However, no pleading has been done that why he is not made any effort to bring the said documents on record when the matter in question was sub-judice before the trial Court and what due diligence by him in this regard.
In view of the above said facts, I do not find any good ground or reason to interfere in the matter in question, rather the finding given by the appellate court while rejecting the application moved under order 41 Rule 27 of C.P.C. is perfectly valid and needs no interference.
For the foregoing reasons, writ petition lacks merit and is dismissed.
Order Date :- 22.2.2019/Mahesh