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Whether court permit production of pleadings of earlier litigation as additional evidence?

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 the present petition is to the order dated 15.12.2008, passed by the court below, whereby in an application filed by respondent No. 1 before the learned lower appellate court, he has been permitted to lead additional evidence. Briefly, the facts of the case are that respondent No. 1-Kalu Ram filed a suit for declaration that adoption deed No. 9 dated 10.5.2000 executed by Jai Ram son of Ram Chander in favour of Ram Niwas son of Matadin is a result of fraud, misrepresentation and merely a paper transaction, hence, not binding on the rights of the plaintiff-respondent No. 1. Further challenge was to the release deed No. 697 dated 15.6.2000 executed by Jai Ram in favour of Ram Niwas. The parties are related to each other. The pedigree table, as is noticed by Civil Judge (Junior Division), Mahendergarh in its judgment dated 27.7.2006, is extracted below:

2. The suit filed by respondent No. 1 having been dismissed, he preferred appeal before the learned court below. In appeal, an application under Order 41 Rule 27 CPC was filed seeking permission to lead additional evidence to produce on record certified copy of the plaint in Civil Suit No. 12 of 2001, titled as “Jai Ram v. Ram Niwas”. decided on 27.4.2002, certified copy of Civil Suit No. 679 of 2000 filed on 15.12.2000 by Ram Niwas against Jai Ram and written statement filed by Jai Ram and the agreement to sell in Civil Suit No. 315/RT of 2001 instituted on 14.5.2001, titled as “Smt. Sushila v. Jai Ram and others”,. The learned court below after considering the contentions raised by learned counsel for the parties accepted the application vide impugned order dated 15.12.2008 and permitted respondent No. 1 to prove the documents in question by way of additional evidence. It is this order, which is impugned in the present petition.

3. Learned counsel for the petitioner submitted that ample opportunity was given to respondent No. 1-plaintiff by the trial court for leading his evidence. Despite the fact that two of the aforesaid documents, which have been permitted to be produced now in additional evidence, were well within his knowledge and had even been pleaded in the plaint, but still he did not think it appropriate to produce the same in his evidence at the trial stage. He cannot be permitted to prove these documents in appeal to fill in the lacuna left out. He further submitted that observations of the court below in the impugned order that respondent No. 1 was not in knowledge of the civil suits, plaints or the documents, which have been permitted to be produced in additional evidence, being not a party in that litigation is totally erroneous. In fact, there is a specific pleading in the suit filed by respondent No. 1 pertaining to two civil suits, i.e., Civil Suit No. 12 of 2001 and Civil Suit No. 679 of 2000, hence, the order being based upon erroneous fact finding, deserves to be set aside. He further submitted that even otherwise, none of the said documents is relevant for the purpose of decision of appeal considering the fact that respondent No. 2, who had executed the release deed in his favour, is alive. He had filed a written statement in the suit admitting adoption of the petitioner and also execution of release deed. He had even been cross-examined when appeared in the witness box but still nothing could be found. The production of the documents will not lead the case of respondent No. 1 any further as it is not a case that executor of the documents had expired and only some inferences are to be drawn from different documents and allied circumstances.

4. On the other hand, learned counsel for respondent No. 1 submitted that the case set up by respondent No. 1 for permitting him to lead additional evidence at the appellate stage was clearly made out in terms of the provisions of Order 41 Rule 27 CPC. The conditions laid down therein are fully satisfied. It is not that all the conditions prescribed are to be fulfilled collectively. Even if either of them is satisfied, the party can be permitted to lead additional evidence. The subject-matter of pending litigation is the adoption of petitioner by respondent No. 2 and a release deed executed by respondent No. 2 in favour of the petitioner. The civil suits, the pleadings of which have been permitted to be produced by way of additional evidence, are also pertaining to the same dispute. In those suits, the parties have made certain admissions, which would be relevant for decision of the present suit. Even if respondent No. 1 had knowledge about two suits, as has been pleaded in the plaint, but still non production thereof at the trial stage will not be fatal and he can always be permitted to produce these documents on record at the appellate stage by way of additional evidence. Civil Suit No. 315/RT of 2001 titled as “Smt. Sushila v. Jai Ram and others”, was not in knowledge of respondent No. 1 as there is no pleading to that effect in the plaint. Once it is established that the documents, which have been permitted to be produced in additional evidence have relevance in pending lis and further there is no chance of fabrication thereof as these are nothing else but certified copies of the pleadings filed by the parties in other litigation, no illegality has been committed by the court below while permitting respondent No. 1 to prove these documents by way of additional evidence. In support of his contentions, reliance was placed upon 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 learned counsel for the parties and perused the paper book.

6. The undisputed facts on record are that respondent No. 1 filed a civil suit against respondent No. 2 and the petitioner challenging the adoption of the petitioner by respondent No. 2 vide adoption deed dated 10.5.2000 and also the release deed executed by respondent No. 2 in favour of the petitioner dated 15.6.2000. The civil suit was dismissed. The parties are related to each other as they are descendants from a common ancestor. The pedigree table has already been extracted. The documents, which respondent No. 1 has been permitted to produce by way of additional evidence are pleadings from Civil Suit No. 12 of 2001, titled as “Jai Ram v. Ram Niwas”, Civil Suit No. 679 of 2000 titled as “Ram Niwas v. Jai Ram”, and Civil Suit No. 315/RT of 2001 titled as “Smt. Sushila Devi v. Jai Ram and others “,

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7. The case set up by respondent No. 1 is that in the aforesaid civil suits either there was dispute pertaining to the adoption or release deed or there were pleadings touching the issues, which are in the form of admissions by the parties. In the civil suit filed by respondent No. 1, the factum of first two suits, as noticed above, has been mentioned in the pleadings, whereas the stand of learned counsel for respondent No. 1 is that third suit was not in his knowledge at that stage, but despite this fact the evidence, being relevant, the court has rightly permitted him to produce the same on record by way of additional evidence, whereas the case set up by the petitioner is that once the documents were in the knowledge of respondent No. 1 at the time of filing of the suit, he should have taken care of to produce the same in evidence at the trial stage. If there is a lacuna left in the evidence led by him, the same cannot be permitted to be filled in at the appellate stage and further that the documents 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 the Supreme Court opined that if the documents are found to be relevant to decide the real issue in controversy and when the court feels that interest of justice requires that the documents may be received, exercising the power under Order 41 Rule 27 CPC, the appellate court would receive those documents and consider the effect thereof. However, an opportunity be given for rebuttal, if any, and their relevance and effect be considered in deciding the issues arising in controversy.

9. In Smt. Bhulia Devi’s case (supra), this court while considering the fact that a document which goes to the root of the case and is relevant for proper adjudication of the case can be permitted to be produced on record by way of additional evidence even at the appellate stage even if there was some negligence. The order permitting the party to produce the same was upheld. To similar effect is the judgment of this court in M/s Amba Maa Mills’ case (supra).

10. In Ram Kishan v. Inder Pal and others, 2004(3) R.C.R. (Civil) 572, this court, while considering the issue regarding production of additional evidence at the appellate stage, observed as under:

5. The afore-mentioned provision have been subject-matter of interpretation of the Supreme Court in the case 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 the basis of the afore-mentioned judgments it can be concluded that the Ld. Additional District Judge while hearing the appeal under Section 96 of the (sic) enjoys adequate power to allow additional evidence if such evidence is required to enable him to pronounce the judgment. He can also allow the additional evidence for any other substantial cause advancing administration of justice. The judgment of the Rajasthan High Court in the case of Vishnu Iron and Steel Industries’s case (supra) on which reliance has been placed has also concluded that the first appellate court has adequate power to allow additional evidence if such evidence is necessary to pronounce the 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, the issue has been considered in detail by Hon’ble the Supreme Court and certain broad principles were laid down, namely, acceptance of application may not result in injustice to other party and that it is necessary for the purpose of determining the real question in controversy between the 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 court while reiterating the afore-noted observations in Parsotim’s case (supra), pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence ‘to enable it to pronounce judgment’ but also for ‘any other substantial cause’. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence ‘to enable it to pronounce judgment’, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the court at the time of hearing of the appeal on merits.

15. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others, MANU/SC/0002/1957 : A.I.R. 1957 S.C. 363 which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which 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.).

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16. These are the broad principles to be kept in view while dealing with applications under Order 41 Rule 27 and Order 6 Rule 17 CPC.

17. It is manifest that in the present case, the High Court did not examine the record of the case with the thoroughness which was expected at the time of disposal of the pending applications. On a perusal of the impugned decisions, it is clear that the High Court was not even aware of the pendency of the application under Order 41 Rule 27 CPC seeking leave to adduce additional evidence. A perusal of the documents, which came to light pursuant to the directions given by the High Court on 3rd April, 2002, prima facie, goes to show that these are likely to widely affect the decision of the Court in one way or the other. If the stand of the appellant, which, according to them, is borne out from the documents now on record, is found to be correct, then obviously these will have material bearing on the core issue, namely, whether the decree dated 13th March, 2001 is a nullity, having been allegedly obtained by concealing material facts and playing fraud on the court. It is trite that a judgment or decree by the first court or by the highest court obtained by playing fraud on the court is a nullity and non est in the 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 the court found the additional documents, sought to be admitted, necessary to pronounce the judgment in the appeal, in a more satisfactory manner, it would have allowed the application and, if not, the application would have been dismissed. Nonetheless, it was bound to consider the application before taking up the appeal. We say no more at this stage, as the aforementioned applications are yet to be considered by the High Court on merits in the light of the legal position, briefly set out hereinabove. In view of the afore-noted factual scenario, we are of the opinion that the impugned judgment and the orders are erroneous and cannot be sustained.

12. In Gurdial Singh’s case (supra), while considering a similar issue at the stage of second appeal, where an application filed by the party therein at the first appellate stage for permission to lead additional evidence was dismissed, however, the issue was taken up at the time of filing of second appeal before this court, the additional evidence sought to be produced therein was in the form of jamabandis for various years, this court dealt with the issues in paragraphs 12 to 14, which are extracted below:

12. It is pertinent to mention that during the pendency of the first appeal before the First Appellate Court, the appellants had filed an application under Order 41 Rule 27 read with Section 151 of the CPC for permission to lead additional evidence for the purpose of producing jamabandis for the years 1963-64, 1969-70, 1974-75 and 1979-80, but the said application was dismissed by the learned District Judge, Kurukshetra on 14.02.2007 on the ground that the said documents were within the knowledge of the appellants earlier, therefore, in terms of Order 41 Rule 27(1)(aa) of the CPC, they were not allowed to lead additional evidence in appeal. In this case, the appellants have also challenged the said order dated 14.02.2007 passed by the First Appellate Court by which their application for leading additional evidence was dismissed. It may also be clarified that the application for leading additional evidence was dismissed on the same day when the main appeal was dismissed by the First Appellate Court. The first question, which is to be decided by this Court, is as to “whether the First Appellate Court should have or should not have allowed the application for additional evidence because learned counsel for the appellants has placed heavy reliance upon the jamabandis Annexures P-2 to P-5 in order to show that they were in possession of the land in dispute as tenants.

12A. Before appreciating the respective contentions, it would be worthwhile to peep into the relevant provisions of law, namely, Section 107 and Order 41 Rule 27 of the CPC, which are reproduced as under:-

Section 107 of the CPC

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

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

Order 41 Rule 27 of the CPC

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, or [(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.

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(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the court shall record the reason for its admission.

12. Section 107 of the CPC empowers an Appellate Court to determine a case finally, to remand a case, to frame issues and refer them for trial and to take additional evidence or to require such evidence to be taken. With this substantive enabling power, Order 41 Rule 27 of the CPC came into being which lays down further conditions and circumstances in which the Appellate Court could take the additional evidence. Originally, there were two conditions in Order 41 Rule 27 of the CPC, i.e.

(a) if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, and (b) if 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, but in the year 1976, Rule (aa) was also inserted in Order 41 Rule 27(1) of the CPC which provides that if the party seeking to produce additional evidence, establishes that despite exercise of due diligence, the evidence which is sought to be produced, was not within his knowledge or despite exercise of due diligence, the evidence could not be produced by him when the decree appealed against was passed, could be granted permission. Thus, Clause (aa) further enables the Court to give permission but Clause (b) of Order 41 Rule 27(1) empowers the Appellate Court to give permission for additional evidence if the Court itself requires any document to be produced or any witness to be examined for the purpose of its assistance for coming to a just conclusion and for any other substantial cause. Substantial cause though has not been defined, therefore, it depends upon facts and circumstances of each case. In the light of the aforesaid provisions, the order passed by the learned First Appellate Court dismissing the application of the appellants for additional evidence is to be examined. Even if the documents, namely, jamabandis which are sought to be produced on record, were within knowledge of the appellants, the Court can always allow it in terms of Order 41 Rule 27(1)(b) of the CPC. To my mind, documentary evidence which cannot be created or manufactured for the first time after the decision of the suit i.e. any official document whose authenticity is not in dispute and is capable of assisting the Court to take final decision in respect of the dispute between the parties, such evidence should not normally be disallowed to be taken on record. In this regard, the judgments relied upon by learned counsel for the appellants in the case of North Eastern Railway Administration, Gorakhpur (supra) and Ram Kishan (supra) are fully applicable, whereas the judgment relied upon by learned counsel for the respondents in the case of Smt. Krishana (supra) is not applicable as the facts of that case were altogether different because in that case, application under Order 41 Rule 27 of the CPC by which permission was sought to lead additional evidence to prove documents Mark-A to Mark-C, namely, lease deed, agreement and receipt respectively, were privately prepared documents regarding which this Court had held that those were within the knowledge of the party who could have produced those documents before the Trial Court but after the decision of the suit, in order to fill up the lacuna, the said documents cannot be allowed to be produced on record. Thus, on its own facts, there is no quarrel with the law laid down by this Court in the case of Smt. Krishana (supra).

13. In view of the aforesaid discussion, the question with regard to order passed by the First Appellate Court on 14.02.2007 by which application filed by the appellants for leading additional evidence to produce on record certified copies of jamabandis was dismissed, is decided in favour of the appellants and the said order is set aside much-less overruled and hence, the CM No. 4610-C of 2010 is allowed and the documents Annexures P-2 to P-5 are taken on record as additional evidence.

13. It has been specifically noticed by this court in the aforesaid case that even if the documents, namely, jamabandis, which were sought to be produced in additional evidence were within knowledge of the party therein, but still the court can always allow these to be produced on record in terms of Order 41 Rule 27(1)(b) CPC, considering the fact that these documents cannot be created or manufactured for the first time after the decision of the suit. The evidentiary value thereof has to be considered by the court in the light of other material on record.

14. What has been held in the aforesaid judgments is that if the court finds that the documents sought to be produced in additional evidence are relevant to decide the real issue in controversy and further the court feels that interest of justice requires that the documents may be received and the kinds of documents are such, the authenticity of which cannot be disputed, the same may be allowed to be produced in additional evidence. If the facts of the present case are considered in the light of the judgments, referred to above, the documents sought to be produced by the petitioner by way of additional evidence are none else but the pleadings in the earlier litigation pertaining to the same subject-matter. There is no chance of its fabrication at this stage.

15. If the facts of the present case are considered in the light of the judgments, referred to above, the documents sought to be produced by the petitioner by way of additional evidence are none else but the pleadings in the earlier litigation pertaining to the same subject-matter. There is no chance of its fabrication at this stage.

16. Accordingly, in my opinion, there is no merit in the present petition and the same deserves to be dismissed. Ordered accordingly. As the respondent has been permitted to lead additional evidence, the petitioner shall also be given opportunity to rebut the same, if he so desires.

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