Santosh Kumar Singh v. Ashok Verma and Ors

8. Learned counsel for the appellants has pressed on the application for producing additional evidence under Order 41 Rule 27 of the CPC as has been filed along with the appeal vide application No. 19523 of

9. In paragraph 4 of the said application, it has been indicated that the driving license of the appellant no. 1 was left from being filed before the learned tribunal although the appellant was under the impression that all the documents had been filed before the learned tribunal including the driving license and it was only when the award has been passed by the learned tribunal that it emerged that the driving license had not been filed and hence the application under Order 47 Rule 27 of the CPC. Along with the application, the appellants have also filed as annexure 1 the driving license in favour of the appellant no. 1 which prima facie indicates that the driving license was valid from

05.11.1998 to 04.11.2018.

10. It is argued that in case the driving license would have been filed before the learned tribunal, which could not be filed inadvertently, as such, the right of recovery would not have been given to the insurance company and consequently, it is prayed that the application filed by the appellant under Order 47 Rule 27 be allowed.

11. On the other hand, Sri Rajiv Mishra, learned counsel for the respondent no. 2 states that as there was no due diligence on the part of the appellants in filing the driving license before the learned tribunal consequently, they cannot be permitted to file additional evidence before this Court praying for the said evidence to be taken in terms of Order 47 Rule 27 and thus it is prayed that the application merits to be rejected.

12. In this regard, Sri Mishra has placed reliance on the judgment of the Apex Court in the cases of the State Of Gujarat And Another Vs Mahendra kumar Parshottam bhai Desai - 2006 (9) SCC 772 as well as another judgment of the Apex Court in the case of Sanjay Kumar Singh Vs. State of Uttrakhand and Ors – 2022 (7) SCC 247

13. Heard the learned counsel appearing on behalf of the contesting parties and perused the records.

14. From a perusal of records it emerges that the learned tribunal vide impugned award has awarded a sum of Rs. 1,50,000/- along with interest to the claimants. The learned tribunal has held that as no driving license has been filed consequently, the insurance company has been required to pay the amount to the claimant and to recover the same from the owner/driver.

15. Instant appeal has been filed along with an application under Order 41 Rule 27 of the CPC by contending that the despite the appellant no. 1 having a valid driving license in his name inadvertently it could not be filed and thus it is prayed that the said license be permitted in the appeal as additional evidence.

16. The issue whether an additional evidence under Order 41 Rule 27 can be filed before the appellate Court, would have to be considered after considering the provisions of Order 47 Rule 27 of the CPC.

17. For the sake of convenience, Order 41 Rule 27 of the CPC reads as under:-

27. Production of Additional Evidence in Appellate Court. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, (aa) 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 (b) 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, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

18. From a perusal of the aforesaid, it emerges that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate Court but if the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial cause, the appellate Court may allow such evidence or document to be produced.

19. Although the additional evidence as filed by the appellant is permissible keeping in view the specific provisions of Rule 27 of Order 41 of the CPC but considering Rule 27 (1) (b) of the CPC it is apparent that it can be permitted in case the appellate Court requires the document to be produced to enable it to pronounce judgment or for any other substantial cause.

20. From a perusal of the award as passed by the learned tribunal it emerges that after the learned tribunal had passed the award in favour of the claimants, the insurance company has been given a right for making recovery from the owner and the driver on the ground that no driving license has been filed before the learned tribunal.

21. The said driving license has been filed before this Court by contending that inadvertently the same could not be filed.

22. Once the appellants were in fact having a valid driving license obviously not filing the same before the learned tribunal would be an inadvertent error on their part as clearly emerges from perusal of the application which has been filed before this Court.

23. It is not disputed by the respondents that the driving license of the appellant no. 1 was not valid at the time of accident or is not genuine.

24. Considering the aforesaid, the application for taking additional evidence merits to be allowed and is allowed.

25. So far as the judgment of the Apex Court in the case of Mahendra kumar Parshottam bhai Desai (supra), suffice it say that a perusal of the said judgment would indicate that the additional evidence was only sought to be produced in appeal after eight years of the dismissal of the suit.

26. Instant case is not that the additional evidence is sought to be filed after eight years rather immediately on the award of the learned trial Court dated 24.11.2017 and its certified copy having been prepared on

03.02.2018, as emerges from a perusal of the certified copy, the instant appeal has been filed before this Court on 17.12.2018 along with an application under Order 41 Rule 27 of the CPC and thus the principles as laid down by the Apex Court in the case of Mahendra kumar Parshottam bhai Desai (supra) are not attracted in the facts of the instant case.

27. So far as the judgment of the Apex Court in the case of Sanjay Kumar Singh (supra) is concerned, from a perusal of the said judgment it clearly emerges that the Apex Court has itself considered the exception of Order 41 Rule 27 of the CPC which enables the appellate Court to take additional evidence in exceptional circumstances which, as already indicated above are attracted in the facts of the instant case.

28. Thus, in effect the judgment of the Apex Court in the case of Sanjay Kumar Singh (supra) supports the case of the appellants.

29. Keeping in view the aforesaid discussions, the appeal is allowed. It is held that the appellant no. 1 was having a valid driving license which was valid for the period from 05.11.1998 to 04.11.2018 and as such, on the date of accident, which is said to be 23.02.2011, there was an effective and valid driving license of the appellant no. 1.

30. Accordingly, the award of the learned tribunal so far as it gives right to the insurance company to recover the awarded amount from the driver and the owner of the said vehicle is set aside. Remaining award is affirmed .

31. In case, any amount is deposited by the appellants, the same be returned as per rules.

32. Let the record of the learned trial Court be returned back as per procedure. Order Date :- 9.5.2025/Pachhere/- SATYENDRA SINGH PACHHERE High Court of Judicature at Allahabad, Lucknow Bench

8. Learned counsel for the appellants has pressed on the application for producing additional evidence under Order 41 Rule 27 of the CPC as has been filed along with the appeal vide application No. 19523 of

9. In paragraph 4 of the said application, it has been indicated that the driving license of the appellant no. 1 was left from being filed before the learned tribunal although the appellant was under the impression that all the documents had been filed before the learned tribunal including the driving license and it was only when the award has been passed by the learned tribunal that it emerged that the driving license had not been filed and hence the application under Order 47 Rule 27 of the CPC. Along with the application, the appellants have also filed as annexure 1 the driving license in favour of the appellant no. 1 which prima facie indicates that the driving license was valid from

05.11.1998 to 04.11.2018.

10. It is argued that in case the driving license would have been filed before the learned tribunal, which could not be filed inadvertently, as such, the right of recovery would not have been given to the insurance company and consequently, it is prayed that the application filed by the appellant under Order 47 Rule 27 be allowed.

11. On the other hand, Sri Rajiv Mishra, learned counsel for the respondent no. 2 states that as there was no due diligence on the part of the appellants in filing the driving license before the learned tribunal consequently, they cannot be permitted to file additional evidence before this Court praying for the said evidence to be taken in terms of Order 47 Rule 27 and thus it is prayed that the application merits to be rejected.

12. In this regard, Sri Mishra has placed reliance on the judgment of the Apex Court in the cases of the State Of Gujarat And Another Vs Mahendra kumar Parshottam bhai Desai - 2006 (9) SCC 772 as well as another judgment of the Apex Court in the case of Sanjay Kumar Singh Vs. State of Uttrakhand and Ors – 2022 (7) SCC 247

13. Heard the learned counsel appearing on behalf of the contesting parties and perused the records.

14. From a perusal of records it emerges that the learned tribunal vide impugned award has awarded a sum of Rs. 1,50,000/- along with interest to the claimants. The learned tribunal has held that as no driving license has been filed consequently, the insurance company has been required to pay the amount to the claimant and to recover the same from the owner/driver.

15. Instant appeal has been filed along with an application under Order 41 Rule 27 of the CPC by contending that the despite the appellant no. 1 having a valid driving license in his name inadvertently it could not be filed and thus it is prayed that the said license be permitted in the appeal as additional evidence.

16. The issue whether an additional evidence under Order 41 Rule 27 can be filed before the appellate Court, would have to be considered after considering the provisions of Order 47 Rule 27 of the CPC.

17. For the sake of convenience, Order 41 Rule 27 of the CPC reads as under:-

27. Production of Additional Evidence in Appellate Court. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, (aa) 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 (b) 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, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

18. From a perusal of the aforesaid, it emerges that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate Court but if the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial cause, the appellate Court may allow such evidence or document to be produced.

19. Although the additional evidence as filed by the appellant is permissible keeping in view the specific provisions of Rule 27 of Order 41 of the CPC but considering Rule 27 (1) (b) of the CPC it is apparent that it can be permitted in case the appellate Court requires the document to be produced to enable it to pronounce judgment or for any other substantial cause.

20. From a perusal of the award as passed by the learned tribunal it emerges that after the learned tribunal had passed the award in favour of the claimants, the insurance company has been given a right for making recovery from the owner and the driver on the ground that no driving license has been filed before the learned tribunal.

21. The said driving license has been filed before this Court by contending that inadvertently the same could not be filed.

22. Once the appellants were in fact having a valid driving license obviously not filing the same before the learned tribunal would be an inadvertent error on their part as clearly emerges from perusal of the application which has been filed before this Court.

23. It is not disputed by the respondents that the driving license of the appellant no. 1 was not valid at the time of accident or is not genuine.

24. Considering the aforesaid, the application for taking additional evidence merits to be allowed and is allowed.

25. So far as the judgment of the Apex Court in the case of Mahendra kumar Parshottam bhai Desai (supra), suffice it say that a perusal of the said judgment would indicate that the additional evidence was only sought to be produced in appeal after eight years of the dismissal of the suit.

26. Instant case is not that the additional evidence is sought to be filed after eight years rather immediately on the award of the learned trial Court dated 24.11.2017 and its certified copy having been prepared on

03.02.2018, as emerges from a perusal of the certified copy, the instant appeal has been filed before this Court on 17.12.2018 along with an application under Order 41 Rule 27 of the CPC and thus the principles as laid down by the Apex Court in the case of Mahendra kumar Parshottam bhai Desai (supra) are not attracted in the facts of the instant case.

27. So far as the judgment of the Apex Court in the case of Sanjay Kumar Singh (supra) is concerned, from a perusal of the said judgment it clearly emerges that the Apex Court has itself considered the exception of Order 41 Rule 27 of the CPC which enables the appellate Court to take additional evidence in exceptional circumstances which, as already indicated above are attracted in the facts of the instant case.

28. Thus, in effect the judgment of the Apex Court in the case of Sanjay Kumar Singh (supra) supports the case of the appellants.

29. Keeping in view the aforesaid discussions, the appeal is allowed. It is held that the appellant no. 1 was having a valid driving license which was valid for the period from 05.11.1998 to 04.11.2018 and as such, on the date of accident, which is said to be 23.02.2011, there was an effective and valid driving license of the appellant no. 1.

30. Accordingly, the award of the learned tribunal so far as it gives right to the insurance company to recover the awarded amount from the driver and the owner of the said vehicle is set aside. Remaining award is affirmed .

31. In case, any amount is deposited by the appellants, the same be returned as per rules.

32. Let the record of the learned trial Court be returned back as per procedure. Order Date :- 9.5.2025/Pachhere/- SATYENDRA SINGH PACHHERE High Court of Judicature at Allahabad, Lucknow Bench