Hena Hasan Desai v. Moti Mahal Deluxe A Partnership Firm

Judgment

1. By t his pet it ion filed under Art icle 227 of t he Const it ut ion, pet it ioner has challenged order dat ed

15.07.2023 passed by 4 t h Addit ional Dist rict Judge, Dehrdun in SCC Revision No. 1 of 2022. By t he said order, applicat ion filed by pet it ioner, t aking addit ional evidence on record in a revision filed under Sect ion 25 of t he Provincial Sm all Cause Court s Act , 1887, was rej ect ed.

2. I t t ranspires t hat pet it ioner’s m ot her filed an evict ion suit against t he respondent as Mut walli by cont ending t hat t he suit propert y belongs t o a Wakf. During pendency of t he suit , pet it ioner’s m ot her passed away on 12.05.2021 and pet it ioner was subst it ut ed as plaint iff in t he suit . The suit was dism issed by learned Judge, Sm all Cause Court , Dehradun vide j udgm ent dat ed 02.04.2022, int er alia on t he ground t hat an unregist ered Wakf cannot m aint ain a suit in view of Sect ion 87 of The Wakf Act , 1995. 1

3. Pet it ioner filed a revision under Sect ion 25 of t he Provincial Sm all Cause Court s Act , 1887 challenging t he j udgm ent rendered by learned t rial court , which is pending. Before t he revisonal court , pet it ioner m oved an applicat ion under Sect ion 151 CPC t aking cert ified copy of Wakf Regist er on record t o show t hat Wakf in quest ion is a regist ered Wakf. Learned revisional court rej ect ed t he said applicat ion vide order dat ed 15.07.2023. Thus, feeling aggrieved, pet it ioner has approached t his Court .

4. Heard learned counsel for t he pet it ioner and perused t he record.

5. Order 41 Rule 27 CPC is ext ract ed below for ready reference: - “ 2 7 . Pr o d u ct i o n o f a d d i t i o n a l e v i d e n ce i n A p p e l l a t e Co u r t . ( 1) The part ies t o an appeal shall not be ent it led t o produce addit ional evidence, whet her oral or docum ent ary, t he Appellat e Court . But if- ( a) t he Court from whose decree t he appeal is preferred has refused t o adm it evidence which ought t o have been adm it t ed, or ( aa) ( b) t hat not wit hst anding t o produce addit ional evidence, t he part y seeking est ablishes t he exercise of due diligence, such evidence was not wit hin his knowledge or could not , aft er t he exercise of due diligence, be produced by him at t he t im e when t he decree appealed against was passed, or requires any docum ent t o be t he Appellat e Court produced or any wit ness t o be exam ined t o enable it t o pronounce for any ot her subst ant ial cause, t he Appellat e Court m ay allow such evidence or docum ent t o be produced, or wit ness t o be exam ined. j udgm ent , or ( 2) Wherever addit ional evidence is allowed t o be produced by an Appellat e Court , t he Court shall record t he reason for it s adm ission.” 2

6. Perusal of Order 41 Rule 27 CPC reveals t hat it enables appellat e court t o t ake addit ional evidence in except ional circum st ances. The general principle is t hat appellat e court should not t ravel beyond t he record of t he t rial court and cannot consider any evidence, which was not placed before t he t rial court . Hon’ble Suprem e Court has held t hat t he appellat e court m ay perm it addit ional evidence only and only if t he condit ions laid down in Order 41 Rule 27 CPC are found t o exist . The part ies are not ent it led, as of right , t o t he adm ission of such evidence. The said provision does not apply, when on t he basis of evidence on record, t he appellat e court can pronounce a sat isfact ory j udgm ent . The m at t er is ent irely wit hin t he discret ion of t he court and is t o be used sparingly. Such discret ion is only a j udicial discret ion circum scribed by t he lim it at ion specified in t he rule it self. Hon’ble Suprem e Court in t he case of Union of I ndia vs I brahim Uddin & anot her, report ed in ( 2012) 8 SCC 148, has held as under: - “ 3 7 . The appellat e court should not ordinarily allow new evidence t o be adduced in order t o enable a part y t o raise a new point in appeal. Sim ilar ly, where a part y on whom t he onus of proving a cert ain point lies fails t o dischar ge t he onus, he is not ent it led t o a fresh opport unit y t o produce evidence, as t he court can, in such a case, pronounce j udgm ent against him and does not require any addit ional evidence t o enable it t o pronounce j udgm ent . ( Vide Haj i Moham m ed I shaq v. Mohd. I qbal and Mohd. Ali and Co. [ ( 1978) 2 SCC 493 : AI R 1978 SC 798] ) 3 8 . Under Order 41 Rule 27 CPC, t he appellat e court has t he power t o allow a docum ent t o be produced and a w it ness t o be exam ined. But t he requirem ent of t he said court m ust be lim it ed t o t hose cases where it found it necessary t o obt ain such evidence for enabling it t o pronounce j udgm ent . This provision does not ent it le t he appellat e court t o let in fresh evidence at t he it can appellat e st age where even wit hout such evidence pronounce j udgm ent in a case. I t does not ent it le t he appellat e court t o let in fresh evidence only for t he purpose of pronouncing j udgm ent in a part icular way. I n ot her words, it is only for rem oving a lacuna in t he evidence t hat t he appellat e court is em powered ( Vide Lala t o Pancham [ AI R 1965 SC 1008] .) addit ional evidence. adm it 3

I t is not t he business of t he appellat e court t o supplem ent 3 9 . t he evidence adduced by one part y or t he ot her in t he lower court . Hence, in t he absence of sat isfact ory reasons for t he non- product ion of t he evidence in t he t rial court , addit ional evidence should not be adm it t ed in appeal as a par t y guilt y of rem issness in t he lower court is not ent it led t o t he indulgence of being allowed t o give furt her evidence under t his Rule. So a part y who had am ple opport unit y t o produce cert ain evidence in t he lower court but failed t o do so or elect ed not t o do so, cannot have it ( Vide St at e of U.P. v. Manbodhan Lal adm it t ed Srivast ava [ AI R and S. Raj agopal v. C.M. Arm ugam [ AI R 1969 SC 101] .) in appeal. 1957 SC 912] The inadvert ence of t he part y or his 4 0 . t o underst and t he legal issues involved or t he wrong advice of a pleader or t he negligence of a pleader or t hat t he part y did not realise t he im port ance of a docum ent does not const it ut e a “ subst ant ial cause” w it hin t he m eaning of t his Rule. The m ere fact t hat cert ain evidence is im port ant , is not in it self a sufficient ground for adm it t ing t hat evidence in appeal. inabilit y 4 1 . The words “ for any ot her subst ant ial cause” m ust be read wit h t he word “ requir es” in t he beginning of t he sent ence, so t hat it is only where, for any ot her subst ant ial cause, t he appellat e court requires addit ional evidence, t hat t his Rule will apply e.g. when evidence has been t aken by t he low er court so im perfect ly t hat t he appellat e court cannot pass a sat isfact ory j udgm ent . 4 2 . Whenever t he appellat e court adm it s addit ional evidence it should record it s r easons for doing so ( sub- rule ( 2) ) . I t is a salut ar y provision which operat es as a check against a t oo easy lat e st age of recept ion of evidence at a t he st at em ent of inspire confidence and disar m reasons m ay obj ect ion. Anot her reason of t his requirem ent is t hat , where a furt her appeal lies from t he decision, t he record of reasons will be useful and necessary for t he court of furt her appeal t o see, if t he discret ion under t his Rule has been properly exercised by t he court below. The om ission t o record t he reasons m ust , t herefore, be t reat ed as a ser ious defect . But t his pr ovision is only direct ory and not m andat ory, if t he recept ion of such evidence can be j ust ified under t he Rule.” lit igat ion and

7. I n t he case of Mahavir Singh & ot hers vs Naresh Chandra & anot her, report ed in AI R 2001 SC 134, Hon’ble Court has held as under: - “ 5 . Before we proceed furt her we would like t o refer t o t he scope of an applicat ion under Order 41 Rule 27 CPC. Sect ion 107 CPC enables an appellat e court t ake addit ional evidence or t o require such ot her evidence t o be t aken subj ect t o such condit ions and lim it at ions as are prescribed under Order 41 Rule 27 CPC. The principle t o be observed ordinarily is t hat t he appellat e court should not t ravel out side t he record of t he lower court and cannot t ake evidence on appeal. However, Sect ion 107( d) CPC is an except ion t o t he general rule, and addit ional evidence can be t aken only when t he condit ions and lim it at ions laid dow n t o 4 in t he said rule are found t o exist . The court is not bound under t he circum st ances m ent ioned under t he rule t o perm it addit ional evidence and t he part ies are not ent it led, as of right , t o t he adm ission of such evidence and t he m at t er is ent irely in t he discret ion of t he court , which is, of course, t o be exercised j udiciously and sparingly. The scope of Order 41 Rule 27 CPC was exam ined by t he Privy Council in Kessowj i I ssur v. Great I ndian Peninsula Rly. Co. [ I LR ( 1907) 31 Bom 381 : 9 Bom LR 671 : ( 1906- 07) 34 I A 115 ( followed in AI R 1931 PC 143) ] in which it was laid dow n clearly t hat t his rule alone can be looked t o for t aking addit ional evidence and t hat t he court has no j ur isdict ion t o adm it such evidence in cases where t his rule does not apply. Order 41 Rule 27 CPC envisages cert ain circum st ances when addit ional evidence can be adduced: ( i) t he cour t from w hose decree t he appeal is preferred has refused t o adm it evidence which ought t o have been adm it t ed, or t hat not wit hst anding ( ii) t he part y seeking t o produce addit ional evidence, t he exercise of due est ablishes diligence, such evidence was not wit hin his knowledge or could not , aft er t he exercise of due diligence, be produced by him at t he t im e when t he decree appealed against was passed, or ( iii) t he appellat e court requires any docum ent t o be produced or any wit ness t o be exam ined t o enable it t o pronounce j udgm ent , or for any ot her subst ant ial cause. I n t he present case, it is not t he case of eit her part y t hat t he first sit uat ion is at t ract ed. So far as t he second circum st ance not iced above is concerned, quest ion of exercise of due diligence would not arise because t he scient ific equipm ent concerned from which exam inat ion is sought t o be m ade it self was not in exist ence at t he t im e of t rial and so t hat clause is also not at t ract ed. I n t he t hir d circum st ance, require any t he appellat e court m ay docum ent t o be produced or any wit ness t o be exam ined t o enable it t o pronounce t he j udgm ent , or for any ot her subst ant ial cause. The expression “ t o enable it t o pronounce t he subj ect of several decisions j udgm ent ” has been including Syed Abdul Khader v. Ram i Reddy [ ( 1979) 2 SCC 601 : AI R 1979 SC 553] wherein it was held t hat when t he appellat e court finds it self unable t o pronounce j udgm ent owing t o a lacuna or defect in t he evidence as it st ands, it m ay adm it addit ional evidence. The abilit y t o pronounce a j udgm ent is t o be underst ood as t he abilit y t o pronounce a j udgm ent sat isfact ory t o t he m ind of t he court delivering it . I t is only a lacuna in t he evidence t hat will em power t he court t o adm it addit ional ev idence ( see: Municipal Corpn. of Great er Bom bay v. Lala Pancham [ AI R 1965 SC 1008 : ( 1965) 1 SCR 542] ) . But a m ere difficult y in com ing t o a decision is not sufficient for adm ission of evidence under t his rule. The words “ or for any ot her subst ant ial cause” m ust be read wit h t he word “ requires” , which is set out at 5 t o pronounce t he com m encem ent of t he provision, so t hat it is only where, for any ot her subst ant ial cause, t he appellat e court requires addit ional evidence, t hat t his rule would apply as not iced by t he Priv y Council in Kessow j i I ssur v. G.I .P. Rly. [ I LR ( 1907) 31 Bom 381 : 9 Bom LR 671 : ( 1906- 07) 34 I A 115 ( followed in AI R 1931 PC 143) ] I t is under t hese circum st ances such a power could be exercised. Therefore, when t he first appellat e court did not find t he necessit y t o allow t he applicat ion, we fail t o underst and as t o how t he High Court could, in exercise of it s power under Sect ion 115 CPC, have int erfered wit h such an order, part icularly when t he whole appeal is not before t he Court . I t is only in t he t he appellat e court requires such circum st ances when evidence t o adduce addit ional evidence would arise and not in any ot her circum st ances. When t he first appellat e court passed t he order on t he applicat ion filed under Order 41 Rule 27 CPC, t he whole appeal was before it and if t he first appellat e court is sat isfied t hat addit ional evidence was not required, we fail t o underst and as t o how t he High Court could int erfere wit h such an order under Sect ion 115 CPC. I n t his regard, we m ay not ice t he decision of t his Court in Gurdev Singh v. Mehnga Ram [ ( 1997) 6 SCC 507] in which t he scope of exercise of power under Sect ion 115 CPC on an order passed in an applicat ion filed under Order 41 Rule 27 CPC was considered. When t his decision was cit ed before t he High Court , t he sam e was brushed aside by st at ing t hat t he principle st at ed t herein is not applicable t o t he fact s of t his case. We do not t hink so. The High Court ought not t o have int erfered wit h such an order.” t he necessit y j udgm ent t he

8. Learned revisional court has passed a det ailed order and t he reasons assigned for rej ect ing pet it ioner’s applicat ion cannot be fault ed. Revisional court has relied upon a j udgm ent rendered in t he case of Kailash Chandra Jain vs Jagdish Chandra Nagpal & anot her, report ed in 1998 ( 2) AWC 847, in which it was held t hat addit ional evidence subsequent ly discovered by a part y cannot be adm it t ed in a revision t o dem onst rat e t hat t he finding given by learned Judge, Sm all Cause Court was erroneous. Learned revisonal court also held t hat t he scope of power in a revision filed under Sect ion 25 of t he Provincial Sm all Cause Court s Act , is not as wide as in a first appeal and findings on pure quest ions of fact are norm ally not 6 int erfered wit h by t he revisional court . I t was furt her held t hat since t he fact um of regist rat ion of Wakf cannot be said t o be not wit hin knowledge of t he plaint iff and t here is no explanat ion given, as t o why t he regist rat ion cert ificat e was not placed before t he t rial court , t herefore, t he regist rat ion cert ificat e cannot be t aken on record at t he revisional st age.

9. This Court does not find any reason t o int erfere wit h t he rej ect ion order passed by learned revisonal court . The suit was filed in 2010. Sect ion 87 of t he Wakf Act , 1995, as it st ood on t he dat e of filing of suit , is ext ract ed below: - ( 1) Not wit hst anding “ 8 7 . Ba r t o t h e e n f o r ce m e n t o f r i g h t o n b e h a l f o f anyt hing u n r e g i st e r e d w a k f s cont ained in any ot her law for t he t im e being in force, no suit , appeal or ot her legal proceeding for t he enforcem ent of any right on behalf of any wakf which has not been regist ered in accordance wit h t he provisions of t his Act , shall be inst it ut ed or com m enced or heard, t ried or decided by any Court aft er t he com m encem ent of t his Act , or where any legal proceeding had been such suit , appeal or ot her inst it ut ed or com m enced before such com m encem ent , no such suit , appeal or ot her legal proceeding shall be cont inued, heard, t ried or decided by any Court aft er such com m encem ent unless such wakf has been regist ered, in accordance wit h t he provisions of t his Act . ( 2) The prov isions of sub- sect ion ( 1) shall apply as far as m ay be, t o t he claim for set - off or any ot her claim m ade on behalf of any wakf which has not been regist ered accordance wit h t he provisions of t his Act .”

10. Alt hough, Sect ion 87 of t he Wakf Act was delet ed from t he St at ut e Book w.e.f. 01.11.2013, by Wakf ( Am endm ent ) Act , 2013, however, t hat am endm ent will not have ret rospect ive applicat ion, but t he sam e will apply prospect ively. The suit , filed by pet it ioner, was dism issed int er alia on t he ground t hat Wakf in quest ion was not regist ered. Pet it ioner is t rying t o cure t he defect , which was one of t he reasons for 7 dism issal of t he suit . The case of t he pet it ioner does not fall under t he cont ingencies m ent ioned in Order 41 Rule 27 CPC.

11. Hon’ble Suprem e Court in t he case of Union of I ndia vs I brahim Uddin & anot her, report ed in ( 2012) 8 SCC 148, held t hat “ in t he absence of sat isfact ory reasons for t he non- product ion of t he evidence in t he t rial court , addit ional evidence should not be adm it t ed in appeal as a part y guilt y of rem issness in t he lower court is not ent it led t o t he indulgence of being allowed t o give furt her evidence under t his rule. So a part y who had am ple opport unit y t o produce cert ain evidence in t he lower court but failed t o do so or elect ed not t o do so, cannot have it adm it t ed in appeal”

12. I n view of t he legal posit ion as discussed above, any int erference wit h t he im pugned order would be unwarrant ed.

13. Accordingly, t he writ pet it ion fails and dism issed.

11.07.2025 Aswal NITI RAJ SINGH ASWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802a3a08b08d1369 512ea30f3, postalCode=263001, st=UTTARAKHAND, serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C22DACF4F4610C1 FE58A58531726FBB0, cn=NITI RAJ SINGH ASWAL ( M a n o j K u m a r Ti w a r i , J.) 8