WPMS/782/2009 of BALWANT SINGH Vs SMT SUSHILA DEVI and OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Writ Petition (M/S) No. 782 of 2009

…Petitioner

Balwant Singh

Versus

Smt. Sushila Devi & Ors.

……Respondents

Present: Mr. Tapan Singh, Advocate for the petitioner

Mr. Sanjeev Singh, Advocate for respondent No. 2 Mr. Siddhartha Singh, Advocate for respondent No. 1

With

Writ Petition (M/S) No. 1419 of 2009

Pawan Kumar …Petitioner

Versus

Smt. Sushila Devi & Ors. ……Respondents

Present: Mr. Sanjeev Singh, Advocate for the petitioner

Hon’ble Sharad Kumar Sharma, J. (Oral)

Urgency Application (IA No. 5053 of 2017) is

allowed.

2. With the consent of the learned counsel for the parties, the writ petition is taken up on its merit. The petitioner in this writ petition has challenged the order dated 11.05.2009 whereby the learned First Appellate Court, while considering the Civil Appeal No. 73 of 2001 had rejected the application of the opposite party filed under Order 41 Rule 27 for taking additional evidence on record.

3. The propriety of the additional evidence whether it satisfies the tests provided under Order 41 Rule 27 because it starts with non-obstinate clause and is to be considered by the learned Appellate Court itself as to whether the additional evidence is at all required to be considered while deciding the appeal at the final stage.

4. The said ratio has been propounded by the Hon’ble Apex Court that the veracity of the application for additional evidence is to be considered by the learned Appellate Court at final stage. An identical view has been expressed by Hon’ble Apex Court in the judgment reported

in 2012 (8) SCC 148 in Union of India Vs. Ibrahim Uddin and another.

“36. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 Code of Civil Procedure enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such discretion is only judicial discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy and Ors. : AIR 1963 SC 1526; The Municipal Corporation of Greater Bombay v. Lala Pancham and Ors.: AIR 1965 SC 1008; Soonda Ram and Anr. v. Rameshwaralal and Anr.: AIR 1975 SC 479; and Syed Abdul Khader v. Rami Reddy and Ors.: AIR 1979 SC 553).

37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable party to raise new point in appeal. Similarly, where party on whom the onus of proving certain point lies fails to discharge the onus, he is not entitled to fresh opportunity to produce evidence, as the Court can, in such case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S.K. Mohammed and Ors. v. Mohamed Iqbal and Mohamed Ali and Company: AIR 1978 SC 798).

49. An application under Order 41 Rule 27 Code of Civil Procedure is to be considered at the time of hearing of appeal on merits so as to find 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. (Vide: Arjan Singh v. Kartar Singh and Ors.: AIR 1951 SC 193; and Natha Singh and Ors. v. The Financial Commissioner, Taxation, Punjab and Ors.: AIR 1976 SC 1053).

5. Accordingly, the writ petition is disposed of with the direction to the learned Appellate Court to expedite the proceedings of an appeal and while deciding the appeal on its merit, the Court will consider as to whether the application under Order 41 Rule 27, is at all required to be allowed or not after hearing of the parties concerned.

6. Subject to the above observation, the writ . petitions stand disposed of

Mahinder/

(Sharad Kumar Sharma, J.)

30.10.2017