IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revision No. 7 of 2009 (O&M)

Decided On: 10.01.2012

Ram Niwas
Vs.
Kalu Ram and another

Hon’ble Judges/Coram:
Rajesh Bindal, J.
Citation: (2012) ILR P&H 63

1. Challenge in a benefaction petition is to a sequence antiquated 15.12.2008, inspected by a probity below, whereby in an focus filed by respondent No. 1 before a schooled reduce appellate court, he has been available to lead additional evidence. Briefly, a contribution of a box are that respondent No. 1-Kalu Ram filed a fit for stipulation that adoption help No. 9 antiquated 10.5.2000 executed by Jai Ram son of Ram Chander in foster of Ram Niwas son of Matadin is a outcome of fraud, falsification and merely a paper transaction, hence, not contracting on a rights of a plaintiff-respondent No. 1. Further plea was to a recover help No. 697 antiquated 15.6.2000 executed by Jai Ram in foster of Ram Niwas. The parties are associated to any other. The extraction table, as is beheld by Civil Judge (Junior Division), Mahendergarh in a visualisation antiquated 27.7.2006, is extracted below:

2. The fit filed by respondent No. 1 carrying been dismissed, he elite seductiveness before a schooled probity below. In appeal, an focus underneath Order 41 Rule 27 CPC was filed seeking accede to lead additional justification to furnish on record approved duplicate of a wail in Civil Suit No. 12 of 2001, patrician as “Jai Ram v. Ram Niwas”. motionless on 27.4.2002, approved duplicate of Civil Suit No. 679 of 2000 filed on 15.12.2000 by Ram Niwas opposite Jai Ram and combined matter filed by Jai Ram and a agreement to sell in Civil Suit No. 315/RT of 2001 instituted on 14.5.2001, patrician as “Smt. Sushila v. Jai Ram and others”,. The schooled probity next after deliberation a contentions lifted by schooled warn for a parties supposed a focus vide impugned sequence antiquated 15.12.2008 and available respondent No. 1 to infer a papers in doubt by approach of additional evidence. It is this order, that is impugned in a benefaction petition.

3. Learned warn for a postulant submitted that plenty eventuality was given to respondent No. 1-plaintiff by a conference probity for heading his evidence. Despite a fact that dual of a aforesaid documents, that have been available to be constructed now in additional evidence, were good within his believe and had even been pleaded in a plaint, nonetheless still he did not cruise it suitable to furnish a same in his justification during a conference stage. He can't be available to infer these papers in seductiveness to fill in a lacuna left out. He serve submitted that observations of a probity next in a impugned sequence that respondent No. 1 was not in believe of a polite suits, plaints or a documents, that have been available to be constructed in additional evidence, being not a celebration in that lawsuit is totally erroneous. In fact, there is a specific pleading in a fit filed by respondent No. 1 per to dual polite suits, i.e., Civil Suit No. 12 of 2001 and Civil Suit No. 679 of 2000, hence, a sequence being formed on erring fact finding, deserves to be set aside. He serve submitted that even otherwise, zero of a pronounced papers is germane for a purpose of preference of seductiveness deliberation a fact that respondent No. 2, who had executed a recover help in his favour, is alive. He had filed a combined matter in a fit revelation adoption of a postulant and also execution of recover deed. He had even been cross-examined when seemed in a declare box nonetheless still zero could be found. The prolongation of a papers will not lead a box of respondent No. 1 any serve as it is not a box that executor of a papers had lapsed and usually some inferences are to be drawn from opposite papers and associated circumstances.

4. On a other hand, schooled warn for respondent No. 1 submitted that a box set adult by respondent No. 1 for needing him to lead additional justification during a appellate theatre was clearly done out in terms of a supplies of Order 41 Rule 27 CPC. The conditions laid down therein are entirely satisfied. It is not that all a conditions prescribed are to be over collectively. Even if possibly of them is satisfied, a celebration can be available to lead additional evidence. The subject-matter of tentative lawsuit is a adoption of postulant by respondent No. 2 and a recover help executed by respondent No. 2 in foster of a petitioner. The polite suits, a pleadings of that have been available to be constructed by approach of additional evidence, are also per to a same dispute. In those suits, a parties have done certain admissions, that would be germane for preference of a benefaction suit. Even if respondent No. 1 had believe about dual suits, as has been pleaded in a plaint, nonetheless still non prolongation thereof during a conference theatre will not be deadly and he can always be available to furnish these papers on record during a appellate theatre by approach of additional evidence. Civil Suit No. 315/RT of 2001 patrician as “Smt. Sushila v. Jai Ram and others”, was not in believe of respondent No. 1 as there is no pleading to that outcome in a plaint. Once it is determined that a documents, that have been available to be constructed in additional justification have aptitude in tentative lis and serve there is no possibility of phony thereof as these are zero else nonetheless approved copies of a pleadings filed by a parties in other litigation, no illegality has been committed by a probity next while needing respondent No. 1 to infer these papers by approach of additional evidence. In support of his contentions, faith was placed on Smt. Bhulia Devi v. Smt. Sheela Devi, (1998-3) 120 P.L.R. 363; M/s Amba Maa Mills v. Haryana State Indl. Dev. Corpn. and another, MANU/PH/0441/2007 : 2007(3) R.C.R. (Civil) 637 and Gurdial Singh and others v. Mam Chand and others, (2011-1)161 P.L.R. 31.

5. Heard schooled warn for a parties and perused a paper book.

6. The undisputed contribution on record are that respondent No. 1 filed a polite fit opposite respondent No. 2 and a postulant severe a adoption of a postulant by respondent No. 2 vide adoption help antiquated 10.5.2000 and also a recover help executed by respondent No. 2 in foster of a postulant antiquated 15.6.2000. The polite fit was dismissed. The parties are associated to any other as they are descendants from a common ancestor. The extraction list has already been extracted. The documents, that respondent No. 1 has been available to furnish by approach of additional justification are pleadings from Civil Suit No. 12 of 2001, patrician as “Jai Ram v. Ram Niwas”, Civil Suit No. 679 of 2000 patrician as “Ram Niwas v. Jai Ram”, and Civil Suit No. 315/RT of 2001 patrician as “Smt. Sushila Devi v. Jai Ram and others “,

7. The box set adult by respondent No. 1 is that in a aforesaid polite suits possibly there was brawl per to a adoption or recover help or there were pleadings touching a issues, that are in a form of admissions by a parties. In a polite fit filed by respondent No. 1, a factum of initial dual suits, as beheld above, has been mentioned in a pleadings, since a mount of schooled warn for respondent No. 1 is that third fit was not in his believe during that stage, nonetheless notwithstanding this fact a evidence, being relevant, a probity has righteously available him to furnish a same on record by approach of additional evidence, since a box set adult by a postulant is that once a papers were in a believe of respondent No. 1 during a time of filing of a suit, he should have taken caring of to furnish a same in justification during a conference stage. If there is a lacuna left in a justification led by him, a same can't be available to be filled in during a appellate theatre and serve that a papers are not relevant.

8. In Billa Jagan Mohan Reddy and another v. Billa Sanjeeva Reddy and others, MANU/SC/0748/1994 : (1994)4 S.C.C. 659, Hon’ble a Supreme Court opined that if a papers are found to be germane to confirm a genuine emanate in debate and when a probity feels that seductiveness of probity requires that a papers might be received, sportive a energy underneath Order 41 Rule 27 CPC, a appellate probity would accept those papers and cruise a outcome thereof. However, an eventuality be given for rebuttal, if any, and their aptitude and outcome be deliberate in last a issues outset in controversy.

9. In Smt. Bhulia Devi’s box (supra), this probity while deliberation a fact that a request that goes to a base of a box and is germane for scold adjudication of a box can be available to be constructed on record by approach of additional justification even during a appellate theatre even if there was some negligence. The sequence needing a celebration to furnish a same was upheld. To identical outcome is a visualisation of this probity in M/s Amba Maa Mills’ box (supra).

10. In Ram Kishan v. Inder Pal and others, 2004(3) R.C.R. (Civil) 572, this court, while deliberation a emanate per prolongation of additional justification during a appellate stage, celebrated as under:

5. The afore-mentioned sustenance have been subject-matter of interpretation of a Supreme Court in a box of K. Venkataramiah v. A. Seetharama Reddy and others, MANU/SC/0243/1963 : A.I.R. 1963 S.C. 1526; Natha Singh v. The Financial Commissioner, Taxation, MANU/SC/0489/1976 : A.I.R. 1976 S.C. 1053; Land Acquisition Officer v. H. Narayanaiah etc., MANU/SC/0382/1976 : A.I.R. 1976 S.C. 2403 and P. Purushottam Reddy and another v. Pratap Steels Ltd, (2002(2) R.C.R. (Civil) 70 (S.C.):MANU/SC/0054/2002 : 2002(2) S.C.C. 686. On a basement of a afore-mentioned judgments it can be resolved that a Ld. Additional District Judge while conference a seductiveness underneath Section 96 of a (sic) enjoys adequate energy to concede additional justification if such justification is compulsory to capacitate him to pronounce a judgment. He can also concede a additional justification for any other estimable means advancing administration of justice. The visualisation of a Rajasthan High Court in a box of Vishnu Iron and Steel Industries’s box (supra) on that faith has been placed has also resolved that a initial appellate probity has adequate energy to concede additional justification if such justification is required to pronounce a judgment.
11. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by Lrs.,6 MANU/PH/1816/2008 : 2008(3) R.C.R. (Civil) 165, a emanate has been deliberate in fact by Hon’ble a Supreme Court and certain extended beliefs were laid down, namely, acceptance of focus might not outcome in misapplication to other celebration and that it is required for a purpose of last a genuine doubt in debate between a parties. Relevant paragraphs thereof are extracted below:

14. Again in K. Venkataramiah v. A. Seetharama Reddy and others, MANU/SC/0243/1963 : A.I.R. 1963 S.C. 1526 a Constitution Bench of this probity while reiterating a afore-noted observations in Parsotim’s box (supra), forked out that a appellate probity has a energy to concede additional justification not usually if it requires such justification ‘to capacitate it to pronounce judgment’ nonetheless also for ‘any other estimable cause’. There might good be cases where even nonetheless a probity finds that it is means to pronounce visualisation on a state of a record as it is, and so, it can't particularly contend that it requires additional justification ‘to capacitate it to pronounce judgment’, it still considers that in a seductiveness of probity something that stays problematic should be filled adult so that it can pronounce a visualisation in a some-more acceptable manner. Thus, a doubt either looking into a documents, sought to be filed as additional evidence, would be required to pronounce visualisation in a some-more acceptable manner, has to be deliberate by a probity during a time of conference of a seductiveness on merits.

15. Insofar as a beliefs that oversee a doubt of extenuation or disallowing amendments underneath Order 6 Rule 17 CPC (as it stood during a germane time) are concerned, these are also good settled. Order 6 Rule 17 CPC postulates amendment of pleadings during any theatre of a proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others, MANU/SC/0002/1957 : A.I.R. 1957 S.C. 363 that still binds a field, it was hold that all amendments ought to be authorised that infer a dual conditions: (a) of not operative misapplication to a other side, and (b) of being required for a purpose of last a genuine questions in debate between a parties. Amendments should be refused usually where a other celebration can't be placed in a same position as if a pleading had been creatively correct, nonetheless a amendment would means him an damage that could not be compensated in costs. (Also see: Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar, 1990(1) R.C.R. (Rent) 229:1990(1) R.R.R. 222:1990 Civ.C.C. 277 (S.C.).

16. These are a extended beliefs to be kept in perspective while traffic with applications underneath Order 41 Rule 27 and Order 6 Rule 17 CPC.

17. It is perceptible that in a benefaction case, a High Court did not inspect a record of a box with a care that was approaching during a time of ordering of a tentative applications. On a examination of a impugned decisions, it is transparent that a High Court was not even wakeful of a pendency of a focus underneath Order 41 Rule 27 CPC seeking leave to cite additional evidence. A examination of a documents, that came to light pursuant to a directions given by a High Court on 3rd April, 2002, prima facie, goes to uncover that these are expected to widely impact a preference of a Court in one approach or a other. If a mount of a appellant, which, according to them, is borne out from a papers now on record, is found to be correct, afterwards apparently these will have element temperament on a core issue, namely, either a direct antiquated 13th March, 2001 is a nullity, carrying been allegedly performed by concealing element contribution and personification rascal on a court. It is hackneyed that a visualisation or direct by a initial probity or by a top probity performed by personification rascal on a probity is a zip and non est in a eyes of law. (See: S.P. Chengalvaraya Naidu v. Jagannath, (1995-1)109 P.L.R. 293 (S.C.), Indian Household and Healthcare Ltd. v. LG Household and Healthcare Ltd., MANU/SC/1253/2007 : 2007(5) S.C.C. 510). In any event, had a probity found a additional documents, sought to be admitted, required to pronounce a visualisation in a appeal, in a some-more acceptable manner, it would have authorised a focus and, if not, a focus would have been dismissed. Nonetheless, it was firm to cruise a focus before holding adult a appeal. We contend no some-more during this stage, as a aforementioned applications are nonetheless to be deliberate by a High Court on merits in a light of a authorised position, quickly set out hereinabove. In perspective of a afore-noted significant scenario, we are of a opinion that a impugned visualisation and a orders are erring and can't be sustained.

12. In Gurdial Singh’s box (supra), while deliberation a identical emanate during a theatre of second appeal, where an focus filed by a celebration therein during a initial appellate theatre for accede to lead additional justification was dismissed, however, a emanate was taken adult during a time of filing of second seductiveness before this court, a additional justification sought to be constructed therein was in a form of jamabandis for several years, this probity dealt with a issues in paragraphs 12 to 14, that are extracted below:

12. It is impending to discuss that during a pendency of a initial seductiveness before a First Appellate Court, a appellants had filed an focus underneath Order 41 Rule 27 review with Section 151 of a CPC for accede to lead additional justification for a purpose of producing jamabandis for a years 1963-64, 1969-70, 1974-75 and 1979-80, nonetheless a pronounced focus was discharged by a schooled District Judge, Kurukshetra on 14.02.2007 on a belligerent that a pronounced papers were within a believe of a appellants earlier, therefore, in terms of Order 41 Rule 27(1)(aa) of a CPC, they were not authorised to lead additional justification in appeal. In this case, a appellants have also challenged a pronounced sequence antiquated 14.02.2007 inspected by a First Appellate Court by that their focus for heading additional justification was dismissed. It might also be simplified that a focus for heading additional justification was discharged on a same day when a categorical seductiveness was discharged by a First Appellate Court. The initial question, that is to be motionless by this Court, is as to “whether a First Appellate Court should have or should not have authorised a focus for additional justification since schooled warn for a appellants has placed complicated faith on a jamabandis Annexures P-2 to P-5 in sequence to uncover that they were in possession of a land in brawl as tenants.

12A. Before appreciating a particular contentions, it would be inestimable to sight into a germane supplies of law, namely, Section 107 and Order 41 Rule 27 of a CPC, that are reproduced as under:-

Section 107 of a CPC

107. Powers of appellate Court.- (1) Subject to such conditions and stipulations as might be prescribed, an appellate Court shall have power-

(a) to establish a box finally;

(b) to remand a case;

(c) to support issues and impute them for trial;

(d) to take additional justification or to need such justification to be taken.

(2) Subject as aforesaid, a appellate Court shall have a same powers and shall perform as scarcely as might be a same duties as are conferred and imposed by this Code on Courts of strange office in honour of suits instituted therein.

Order 41 Rule 27 of a CPC

27. Production of additional justification in Appellate Court.- (1) The parties to an seductiveness shall not be entitled to furnish additional evidence, either verbal or documentary, in a Appellate Court. But if-

(a) a Court from whose direct a seductiveness is elite has refused to acknowledge justification that ought to have been admitted, or [(aa) a celebration seeking to furnish additional evidence, establishes that notwithstanding a practice of due diligence, such justification was not within his believe or could not, after a practice of due diligence, be constructed by him during a time when a direct appealed opposite was passed, or]

(b) a Appellate Court requires any request to be constructed or any declare to be examined to capacitate it to pronounce judgment, or for any other estimable cause,

the Appellate Court might concede such justification or request to be produced, or declare to be examined.

(2) Whenever additional justification is authorised to be constructed by an Appellate Court, a probity shall record a reason for a admission.

12. Section 107 of a CPC empowers an Appellate Court to establish a box finally, to remand a case, to support issues and impute them for conference and to take additional justification or to need such justification to be taken. With this concrete enabling power, Order 41 Rule 27 of a CPC came into being that lays down serve conditions and resources in that a Appellate Court could take a additional evidence. Originally, there were dual conditions in Order 41 Rule 27 of a CPC, i.e.

(a) if a Court from whose direct a seductiveness is elite has refused to acknowledge justification that ought to have been admitted, and (b) if a Appellate Court requires any request to be constructed or any declare to be examined to capacitate it to pronounce judgment, or for any other estimable cause, nonetheless in a year 1976, Rule (aa) was also extrinsic in Order 41 Rule 27(1) of a CPC that provides that if a celebration seeking to furnish additional evidence, establishes that notwithstanding practice of due diligence, a justification that is sought to be produced, was not within his believe or notwithstanding practice of due diligence, a justification could not be constructed by him when a direct appealed opposite was passed, could be postulated permission. Thus, Clause (aa) serve enables a Court to give accede nonetheless Clause (b) of Order 41 Rule 27(1) empowers a Appellate Court to give accede for additional justification if a Court itself requires any request to be constructed or any declare to be examined for a purpose of a assistance for entrance to a only end and for any other estimable cause. Substantial means nonetheless has not been defined, therefore, it depends on contribution and resources of any case. In a light of a aforesaid provisions, a sequence inspected by a schooled First Appellate Court dismissing a focus of a appellants for additional justification is to be examined. Even if a documents, namely, jamabandis that are sought to be constructed on record, were within believe of a appellants, a Court can always concede it in terms of Order 41 Rule 27(1)(b) of a CPC. To my mind, documentary justification that can't be combined or made for a initial time after a preference of a fit i.e. any central request whose flawlessness is not in brawl and is able of aiding a Court to take final preference in honour of a brawl between a parties, such justification should not routinely be disallowed to be taken on record. In this regard, a judgments relied on by schooled warn for a appellants in a box of North Eastern Railway Administration, Gorakhpur (supra) and Ram Kishan (supra) are entirely applicable, since a visualisation relied on by schooled warn for a respondents in a box of Smt. Krishana (supra) is not germane as a contribution of that box were altogether opposite since in that case, focus underneath Order 41 Rule 27 of a CPC by that accede was sought to lead additional justification to infer papers Mark-A to Mark-C, namely, franchise deed, agreement and receipt respectively, were secretly prepared papers per that this Court had hold that those were within a believe of a celebration who could have constructed those papers before a Trial Court nonetheless after a preference of a suit, in sequence to fill adult a lacuna, a pronounced papers can't be authorised to be constructed on record. Thus, on a possess facts, there is no argue with a law laid down by this Court in a box of Smt. Krishana (supra).

13. In perspective of a aforesaid discussion, a doubt with courtesy to sequence inspected by a First Appellate Court on 14.02.2007 by that focus filed by a appellants for heading additional justification to furnish on record approved copies of jamabandis was dismissed, is motionless in foster of a appellants and a pronounced sequence is set aside much-less overruled and hence, a CM No. 4610-C of 2010 is authorised and a papers Annexures P-2 to P-5 are taken on record as additional evidence.

13. It has been privately beheld by this probity in a aforesaid box that even if a documents, namely, jamabandis, that were sought to be constructed in additional justification were within believe of a celebration therein, nonetheless still a probity can always concede these to be constructed on record in terms of Order 41 Rule 27(1)(b) CPC, deliberation a fact that these papers can't be combined or made for a initial time after a preference of a suit. The evidentiary value thereof has to be deliberate by a probity in a light of other element on record.

14. What has been hold in a aforesaid judgments is that if a probity finds that a papers sought to be constructed in additional justification are germane to confirm a genuine emanate in debate and serve a probity feels that seductiveness of probity requires that a papers might be perceived and a kinds of papers are such, a flawlessness of that can't be disputed, a same might be authorised to be constructed in additional evidence. If a contribution of a benefaction box are deliberate in a light of a judgments, referred to above, a papers sought to be constructed by a postulant by approach of additional justification are zero else nonetheless a pleadings in a progressing lawsuit per to a same subject-matter. There is no possibility of a phony during this stage.

15. If a contribution of a benefaction box are deliberate in a light of a judgments, referred to above, a papers sought to be constructed by a postulant by approach of additional justification are zero else nonetheless a pleadings in a progressing lawsuit per to a same subject-matter. There is no possibility of a phony during this stage.

16. Accordingly, in my opinion, there is no consequence in a benefaction petition and a same deserves to be dismissed. Ordered accordingly. As a respondent has been available to lead additional evidence, a postulant shall also be given eventuality to plead a same, if he so desires.