Authority/Citations
Rekha.....
(Querist) 25 October 2009
This query is : Resolved
Dear Respected Sirs/Ma'am
Would u please provide us with following Citations as V hv to submit urgently at the Hon'ble court of Silvassa. Please appreciate this urgently.......thnks
Mahavir Singh V managing director, Mutual Leasing and finance Ltd. 2002(1) CPJ 103: 2002(2) CPR 319: 2002(3) CLT 162(Delhi)
Ashok Leyland Finance Ltd V Himanshu s. Thumar, 2005(2) CPJ 92: 2005(2) CLT 254( Guj)
PJANARDHANA REDDY
(Expert) 25 October 2009
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PETITIONER:
MAHAVIR SINGH & ORS.
Vs.
RESPONDENT:
NARESH CHANDRA & ANR.
DATE OF JUDGMENT: 08/11/2000
BENCH:
S. Rajendra Babu, & D.P. Mohapatra.
JUDGMENT:
RAJENDRA BABU, J. :
Leave granted.
L...I...T.......T.......T.......T.......T.......T.......T..J
This appeal arises out of an order made by the High
Court in a revision petition filed under Section 115 of the
Code of Civil Procedure, 1908 by which it allowed an
application filed by the respondents- plaintiffs under Order
XLI, Rule 27 read with Section 151 CPC by setting aside the
order dated 24.12.1999 passed by the learned District Judge,
Gurgaon, refusing to permit the respondents-plaintiffs to
adduce additional evidence by the said application. The
respondent-plaintiffs filed a suit for (i) specific
performance of the agreement to sell dated 30.1.1995, (ii)
delivery of vacant possession and (iii) a declaration that
the defendant No.1 was an absolute owner of the land
measuring 102 kanals and 14 marlas as described in the
plaint. In pursuance of the said agreement, it is alleged
that the defendants submitted on 7.2.1995 an application to
the Income Tax Department for obtaining clearance for sale
of the said land which was signed by the plaintiff No.1 and
defendant No.1 along with certain other documents attached
thereto. After trial, the trial court dismissed the suit
against which a regular appeal was filed. In the course of
the trial the original agreement of sale produced before the
court was sent for scientific examination. PW-8, Ashok
Kashyap, who is stated to be Hand-Writing and Finger Prints
Expert, deposed that he had examined the original agreement
to sell dated 30.1.1995 and found evidence of interpolation
at pages 2 and 3. In the appeal filed before the learned
District Judge, an application under Order XLI, Rule 27 CPC
read with Section 151 CPC is filed by the respondents to
adduce additional evidence. The contention put forth in the
appellate court is that the original agreement for sale and
the copy of agreement produced before Income Tax Department
should be examined by Forensic Science Laboratory,
Government of N.C.T., Delhi or by any other Government
Forensic Science Laboratory having sufficient instruments or
apparatus for detection of erasyers thereby asking the Court
to make detailed inquiry as to whether the said facilities
are available in any laboratory and then to send the
documents to such laboratory. The appellate court dismissed
the said application by the order made on 24.12.1999. Being
aggrieved by that order, a revision petition was preferred
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before the High Court, as stated earlier.
It is unfortunate that the appellant made a
representation to the Chief Justice of the High Court to
list the case before another Judge in the circumstances set
forth in the representation and a copy of which was also
sent to the learned Judge. However, it appears that this
aspect does not seem to have been pursued with and the same
learned Judge before whom the matter was listed heard the
matter and decided the same. These allegations have been
reiterated in the course of the special leave petition.
Preliminary objection is raised by the respondents to the
effect that the case came up for hearing in the High Court
on 28.3.2000 and 25.4.2000, while the representation had
been made on 23.3.2000 but not brought to the notice of the
learned Judge nor any objection to this effect during the
course of the hearing of the matter by the learned Judge was
raised before him before the arguments were concluded and,
therefore, reiteration of those apprehensions in the course
of the special leave petition will tantamount to making
allegations against the learned Judge of the High Court
which are uncalled for and this Court should not entertain
the special leave petition at all in view of the conduct of
the appellant. We have given our anxious consideration to
this aspect of the matter. Though certain apprehensions
have been expressed by the appellant as to the
appropriateness of the hearing of the matter by the learned
Judge whose order is under appeal before us, the same has
not been pursued with either before the same learned Judge
or before the learned Chief Justice of the High Court. A
mere reiteration of the circumstances set forth in the said
representation will not disentitle the appellant to file
this special leave petition. In that view of the matter, we
overrule the preliminary objection raised by the learned
counsel for the respondents.
The learned Judge examined the matter as if he was
deciding an original proceeding before him without bearing
in mind the limited scope of Order XLI, Rule 27 CPC and on a
revision petition filed against an order made on the
application filed by the respondents the learned Judge
proceeded to advert to the nature of the facilities
available in the Forensic Science Laboratory, Government of
N.C.T., Delhi. The observations made by the learned
District Judge on the application filed by respondents were
held to be not appropriate by the learned Judge. The view
expressed by the learned District Judge was termed as
fallacious. The High Court took the view that the latest
facility was not available at the time when the parties led
the evidence before the trial court and if this facility
became available only in the year 1999 and if the plaintiff
wants to get the disputed documents examined by such
Laboratory, it could not be said that it will not be a
sufficient cause to permit the plaintiff to adduce
additional evidence during the pendency of the appeal. On
that basis the learned Judge proceeded to order that it was
not appropriate exercise of the discretion vested in the
trial court and would require interference by the High Court
in the original jurisdiction.
Before we proceed further we would like to refer to the
scope of an application under Order XLI, Rule 27 CPC.
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
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prescribed under Order XLI, Rule 27 CPC. 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 found 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. The
scope of Order XLI, Rule 27 CPC was examined by the Privy
Council in Kesowji Issur v. G.I.P.Railway, AIR 1931 PC 143,
in which it was laid down clearly that this rule alone can
be looked to for taking additional evidence and that the
court has no jurisdiction to admit such evidence in cases
where this rule does not apply. Order XLI, Rule 27 CPC
envisages certain circumstances when additional evidence can
be adduced :
(i) the court from whose decree the appeal is preferred
has refused to admit evidence which ought to have been
admitted, or
(ii) 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
(iii) 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.
In the present case, it is not the case of either party
that the first situation is attracted. So far as the second
circumstance noticed above is concerned, question of
exercise of due diligence would not arise because the
concerned scientific laboratory from which examination is
sought to be made itself was not in existence at the time of
trial and so that clause is also not attracted. In the
third circumstance the appellate court may require any
document to be produced or any witness to be examined to
enable it to pronounce judgment, or for any other
substantial cause. The expression to enable it to
pronounce judgment has been subject of several decisions
including Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979
SC 553 wherein it was held that when the appellate court
finds itself unable to pronounce judgment owing to a lacuna
or defect in the evidence as it stands, it may admit
additional evidence. The ability to pronounce a judgment is
to be understood as the ability to pronounce a judgment
satisfactory to the mind of court delivering it. It is only
a lacuna in the evidence that will empower the court to
admit additional evidence [ See : The Municipal Corporation
of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC
1008]. But a mere difficulty in coming to a decision is not
sufficient for admission of evidence under this rule. 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, that this rule would apply as noticed by the Privy
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Council in Kesowji Issur v. G.I.P.Railway [supra]. It is
under these circumstances such a power could be exercised.
Therefore, when the first appellate court did not find the
necessity to allow the application, we fail to understand as
to how the High Court could, in exercise of its power under
Section 115 CPC, could have interfered with such an order,
particularly when the whole appeal is not before the court.
It is only in the circumstances when the appellate court
requires such evidence to pronounce the judgment the
necessity to adduce additional evidence would arise and not
in any other circumstances. When the first appellate court
passed the order on the application filed under Order XLI,
Rule 27 CPC, the whole appeal was before it and if the first
appellate court is satisfied that additional evidence was
not required, we fail to understand as to how the High Court
could interfere with such an order under Section 115 CPC.
In this regard, we may notice the decision of this Court in
Gurdev Singh & Ors. vs. Mehnga Ram & Anr., 1997 (6) SCC
507, in which the scope of exercise of power under Section
115 CPC on an order passed in an application filed under
Order XLI, Rule 27 CPC was considered. When this decision
was cited before the High Court, the same was brushed aside
by stating that the principle stated therein is not
applicable to the facts of this case. We do not think so.
The High Court ought not to have interfered with such an
order.
Shri Gopal Subramanium, learned senior counsel for the
respondents, submitted that now that the documents had been
sent to the concerned Laboratory and the opinion had been
ascertained, the matter can certainly be examined by the
court. We cannot agree as this trend, if allowed, would
result in that at any stage of the case either in the first
appeal or the second appeal, the additional evidence is
sought to be adduced on the ground that better scientific
evidence can be adduced, the process would become unending.
It is only in the circumstances prescribed under Order XLI,
Rule 27 CPC such power can be exercised. He contended that
if the order of the High Court could not be sustained on the
ground that the entire appeal was not before it, the order
of the first appellate court also cannot be sustained
because while examining the effect of the evidence in the
course of the appeal, the application under Order XLI, Rule
27 CPC could have been dismissed. But the argument ignores
the fact that if the first appellate court had deemed it
necessary to allow the parties to adduce additional
evidence, it ought to have examined the entire evidence and
when it was rejecting the application, it felt that the
evidence already on record was sufficient one way or the
other. In that view of the matter, we do not wish to
express any opinion on this matter as it is open to the
parties to urge that aspect of the case in the appeal that
is pending before the High Court.
We, therefore, allow this appeal, set aside the order
made by the High Court and restore that of the first
appellate court. However, we are making it clear that its
correctness can be challenged by the aggrieved party in the
appeal that is pending before the High Court, if permissible
under law. The appeal is allowed accordingly. However, in
the circumstances of the case, we make no order as to costs.
Raj Kumar Makkad
(Expert) 26 October 2009
I think your qarry has well been satisfied.
