UNION OF INDIA v. IBRAHIM UDDIN & Anr.

A operate as an estoppel. Law requires that an opportunity be given to the person who has made admission under cross-examination to tender his explanation and clarify the point on the question of admission. Failure of a party to prove its defence does not amount to admission, nor it can reverse or discharge the burden of proof of the plaintiff. [Paras 19, 23] [67-E; 68-G-H; 69-A] B

2.2. In the instant case, the first appellate Court held that not filing any document in rebuttal of the Will dated 1.3.1929 amounts to admission of the said Will as well as its contents. It is evident that the first appellate court misdirected itself so far as the issue of admission is concerned. The finding recorded by it that appellant/ defendant No.1 failed to produce any document in rebuttal of the Will is not only wrong but preposterous. [Para 24] [69-B-G] c D Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi & Ors. AIR 1960 SC 100: 1960 SCR 773; Basant Singh v. Janki Singh & Ors., AIR 1967 SC 341: 1967 E SCR 1; Sita Ram Bhau Patil v. Ramchandra Nago Patil AIR 1977 SC 1712: 1977 (2) SCR 671; Sushi/ Kumar v. Rakesh Kumar, AIR 2004 SC 230: 2003 (4) Suppl. SCR 802; United Indian Insurance Co Ltd. v. Samir Chandra Choudhary (2005) 5 SCC 784: 2005 (1) Suppl. SCR 613; Charanjit Lal Mehra F & Ors v. Kamal Saro} Mahajan & Anr. AIR 2005 SC 2765: 2005 (2 ) SCR 661; Udham Singh v. Ram Singh & Anr. (2007) 15 SCC 529; Nagubai Ammal & Ors. v. B.Shama Rao & Ors. AIR 1956 SC 593: 1956 SCR 451 and L/.C of India & Anr v. Ram Pal Singh Bisen (2010) 4 SCC 491: 2010 (3) G SCR 438 - relied on. Slatterie v. Pooley, (1840) 6 M & W 664 - referred to. Order XLI Rule 27 C.P.C.

3.

The general principle is that the Appellate Court H UNION OF INDIA v. IBRAHIM UDDIN & ANR. 43 should not travel outside the record of the lower court A and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC 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 B 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 a satisfactory judgment. The matter is entirely within the discretion of c the court and is to be used sparingly. [Para 25) [69-H; 70- A-C]

3.

It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of D satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a E party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. The omission to record F the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the rule. [Paras 28 and 31) [71-13-D, H; 72- 8-C] G

3.

The application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory H 44 SUPREME COURT REPORTS [2012] 8 S.C.R. A provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to B whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners c of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. [Para 37] [74-E-H; 75-A] K. Venkataramiah v. A Seetharama Reddy & Ors. AIR D 1963 SC 1526: 1964 SCR 35; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors. AIR 1965 SC 1008: 1965 SCR 542; Soonda Ram & Anr. v. Rameshwaralal & Anr. AIR 1975 SC 479: 1975 (3) SCR 146; Syed Abdul Khader v. Rami Reddy & Ors. AIR 1979 SC 553; Haji E Mohammed /shaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co. AIR 1978 SC 798: 1978 (3) SCR 571; State of UP. v. Manbodhan Lal Srivastava AIR 1957 SC 912: 1958 SCR 533; S. Rajagopa/ v. C.M. Armugam & Ors. AIR 1969 SC 101: 1969 SCR 254; State F of Orissa v. Dhaniram Luhar AIR 2004 SC 1794: 2004 (2) SCR 68; State of Uttaranchal & Anr. v. Sunil Kumar Singh Negi AIR 2008 SC 2026: 2008 (4) SCR 804; The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity & Ors. AIR 2010 SC 1285: 2010 (3) SCR 190; G Sant Lal Gupta & Ors. v. Modem Cooperative Group Housing Society Limited & Ors. (2010) 13 SCC 336: 2010 (13) SCR 621; The Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H. Narayanaiah etc. etc. AIR 1976 SC 2403: 1977 (1) SCR 178 and Basayya I. Mathad v. Rudrayya S. Mathad and Ors. AIR 2008 SC 1108: 2008 (1) SCR 1155- relied on. H UNION OF INDIA v. IBRAHIM UDDIN & ANR. 45 Order XU Rule 27 C.P.C. - Stage of Consideration : A

4.1. An application under Order XU Rule 27 CPC 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/ 8 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 llad-anOPportunity for adducing such evidence at an earlier stage or not, but it depends upon whether C 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 D 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. [Para 38] [75-B-E] E

4.2. An application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion F that additional evidence was required to be taken on record in order to pronounce the judgment or for any other. substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being G a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the fudgment or not, remains inconsequential/inexecutable and is liable to be ignored. In the instant case, the application under Order XU Rule H 46 SUPREME COURT REPORTS [2012] 8 S.C.R. A 27 CPC was filed on 6.4.1998 and it was allowed on 28.4.1999 though the first appeal was heard and disposed of on 15.10.1999 and thus, the order dated 28.4.1999 is just to be ignored. [Para 41) [76-H; 77-A-B]

4.3. The High Court while admitting the appeal had framed 4 substantial questions of law, but admittedly did not answer any of them, though had the question Nos. 2, 3 and 4 been decided, the result would have been otherwise. [Para 42) [77-D, 78-8)