High Court
Case Details
CRP 33/2011 B E F O R E HON’BLE MR. JUSTICE A.K.GOEL,THE CHIEF JUSTICE This petition has been preferred against order of the lower Appellate Court dism issing the application of the petitioners for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure.
Legal Reasoning
The petitioners are original defendants in the suit for partition filed by the r espondents. The parties are related. One of the points of dispute between the pa rties was the extent of share of the parties. The petitioners preferred an appea l against the decree of the trial Court and during pendency thereof, they filed application for additional evidence stating that certain public documents i.e. t he revenue record could not be submitted in the trial Court as in spite of searc h, such documents could not be found. The application was opposed with the plea that the documents were public documen ts being revenue record and they were not out of reach of the petitioners. With due diligence the same could have been produced before the trial Court. The lower Appellate Court held that conditions for permitting additional evidenc e were not fulfilled. It was not established that the petitioners could not prod uce the documents in spite of due diligence. There was no question of refusal of the documents to be received in evidence. It could not be accepted that in spit e of vigorous search of the documents, the same could not be available. Provisio n permitting additional evidence is not intended to permit filling up of lacunae and giving of additional chance to a party which did not act with due diligence . The lower Appellate Court concluded :- (cid:28)Thus, it is apparent from the petition itself that the documents which the defe ndants/appellants have sought to be introduced by way of additional evidence in the appellate court after examination of witnesses are all public documents. Thu s, the question of vigorous search made by the defendants/ appellants for produc ing them before the trial court and inspite of due diligence the said documents could not be produced before the trial court by the defendants/appellants in sup port of their case is nothing but blatant lie and have no basis not sustainable in as much as at the trial stage the appellants were very much aware regarding r equirements of the certified copies of the said jamabandies and chithas but they did not make any attempt to obtain the certified copy thereof by applying to th e concerned authority. The documents proposed to be submitted by the appellants are all public documents which were not kept out from the risk of the appellants by anybody when a suit was being tried in the lower court. Even if it is assume d for the sake argument without admitting that the defendants could not locate t he said public documents in spite of vigorous search and after due diligence the n in order to protect their own case the defendants/appellants were very much aw are regarding relevancy of the said documents ought to have made attempt to obta in the certified copy thereof by applying to the concerned revenue authority aft er payment of necessary fees as this being the public documents are readily kept within the risk of any person subject to application is made to obtain such co pies. The appellants could have applied for certified copies of the said public documents during trial stage and should have established that they made such app lication prior to dismissal of the suit. The defendants/appellants on account of their own negligence did not care to produce the said public documents inspite of the fact that they were very much aware regarding requirement of the said doc uments in support of their case and for such laches the defendants/appellants ar e to suffer the consequence since the appellants could not assign any substantia l reasons that those documents could not be produced before the Id. Trial court in spite of exercising the diligence and those documents were not within their k nowledge. The court cannot go to assist a sleeping party to fill up the gap left by the party itself. The provision under Order 41 and 27 are clearly not intend ed to permit a litigant to patch up the weak parts of the case and filled up omi ssion for the first time in the court of appeal only to drag on proceedings inde finitely or to allow a party to take (cid:28)another chance (cid:29) after the conclusion of th e trial in the court of the first instance due to own laches. Having considered the above view in the light of the provision of order 41 rule 27, I am of the considered view that permitting additional evidence as sought to be introduced by the defendants/ appellants before this appellate court that to o without establishing their exercise of due diligence would be contrary to the principles governing the reception of the same and it will be a case of improper exercise of discretion and would mean negation of justice and, therefore, such additional evidence should not be allowed for the ends of justice. In view of what has been stated above, the petition stands dismissed without aff ording the defendants/appellants to let in additional evidence in the appellate court as it is found that this appellate court shall be able to pronounce judgme nt on the strength of the record as it is. (cid:29)
Legal Reasoning
I have heard learned counsel for the parties. Learned counsel for the petitioners submitted that public documents could be all owed to be produced as additional evidence as held in Thatithoi Chiru and others vs. Ningampao Kabui and others, AIR 1990 Gauhati 7, Mehar Chand and others vs. Lachhmi and others, AIR 1994 Himachal Pradesh 172 and Smt. Jamna and others v s. Bhuwana, AIR 1998 Raj 214. Learned counsel for the respondents, on the other hand, opposed the above submis sion relying upon judgment of the Hon’ble Supreme Court in Union of India vs. Ib rahim Uddin and another, (2012) 8 SCC 148. I have given due consideration to the rival submissions. It is well settled that appellate court cannot travel outside the record and tak e additional evidence unless there are exceptional circumstances contemplated un der Order 41 Rule 27 of the C.P.C. The rule is applicable to public documents al so. In the present case, there are no satisfactory reasons given by the petitio ners for not producing the documents earlier and thus the view taken by the lowe r Appellate Court does not call for any interference. However, even if there is no satisfactory explanation for non-submission of a document in trial court, the appellate court can allow such evidence to be considered, if such evidence is n ecessary to enable it to pronounce judgment. For this purposes prayer can be con sidered at the time of hearing the appeal on merits as held in Ibrahim Uddin (su pra). Accordingly, while dismissing this petition, it is made clear that the lower App ellate Court will not be precluded from giving a fresh consideration to the issu e at the time of finally deciding the appeal. The petition is disposed of accordingly. The parties may appear before the lower Appellate Court for further proceedings on 29.04.2013.