2016 Supreme(Kar) 467

IN THE HIGH COURT OF KARNATAKA
N. Kumar and B. Veerappa, JJ.
Sri. Punny Akat Philip Raju, Since dead by his LRs. - Appellant
Versus
Sri. Dinesh Reddy - Respondent
R.F.A. No. 96 of 2013
Decided On : 31-03-2016

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Order 41, Rule 27, Section 151: [N. Kumar & B. Veerappa, JJ] Additional evidence - Held, The application filed under Order 41 Rule 27 r/w Section 151 of CPC cannot be allowed as a matter of course as allowing an application is an exception. Until and unless the requirements of the said provisions are met, the Court has no jurisdiction to allow the application for additional evidence. Therefore, unless the conditions stipulated in the aforesaid provision exists, the additional evidence should not be admitted in appeal, as a party guilty of remissness in the Lower Court is not entitled to the indulgence of being allowed to give further evidence under this Rule. A party, who had ample opportunity to produce certain evidence in the Lower Court had failed to do so or elected not to do so, cannot be permitted to adduce additional evidence in appeal. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that of the party or that the party did not place reliance on the importance of a document, does not constitute a substantial cause within the meaning of the Rule to enable the Court to allow additional evidence. The words "for any other substantial cause" has to be read with the word "requires" in the beginning of the sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, then the Appellate Court can allow such application.

        In order to find out whether the findings recorded by the trial court is proper or not, the Appellate Court has to look into the evidence adduced before the trial Court. If the evidence on record is not sufficient to record a finding that the trial Court had recorded, it is liable to be set aside. Any amount of evidence by way of additional evidence in the Appellate Court cannot be taken into consideration to support the findings recorded by the trial Court as the same was not produced before the trial Court. The case of the plaintiff did not fall under any of the categories specified under the provision. Even if it is to be held ’ for any other substantial cause- then it is only if the Court requires evidence to pronounce the judgment, then it has to be allowed. Moreover the appellate Court do not require the additional evidence which is not sought to be produced for recording its findings. Therefore, this application for additional evidence would be liable to be dismissed.

        The documents, bank statements etc. sought to be produced by the plaintiff to show that he was possessed of the balance sale consideration which is required to complete the sale transaction, but said documents show that he was not possessed of the requisite funds and even those bank statements were to be accepted, it only shows that he is in the business and he was constantly in need of money so that he was withdrawing and depositing the money. But it cannot be construed that the said amounts were earmarked for the purchase of the property. Hence, application to produce said documents, cannot be allowed.

       SPECIFIC RELIEF ACT,1963 - Section 16(c): [N. Kumar & B. Veerappa, JJ] Readiness and willingness to perform contract - Held, The proof of readiness necessarily means demonstration of financial ability or capacity to pay the balance sale consideration and take the sale deed. When a person on oath states in the witness box that he is ready with the requisite funds, he must produce some evidence to prove his possession of the required funds. The explanation makes it clear that the proof of requisite funds does not mean he should produce the currency before the Court or he should deposit the money in Court. But at the same time, mere statement on oath in the witness box that he is possessed of the requisite funds would also do not prove possession of funds. The said proof has to be necessarily by way of documentary evidence. The reason being, if, the payment is to be made in cash i.e., by handing over currency, currency is a documentary evidence. The explanation to Clause (c) of Section 16 makes it clear that to prove readiness, the plaintiff need not produce the currency before the Court. If the balance consideration is to be deposited in the Court such a deposit is also evidenced by documentary evidence, which is also not necessary by virtue of explanation. Therefore, mere stepping into the witness box and saying on oath that he is ready with the balance sale consideration or that he is going to borrow money from any financial institution or that he has got sufficient funds in his Bank accounts or that he has kept money in Fixed Deposit, without that oral evidence being supported by documentary evidence will not prove the plaintiff’s readiness to pay the balance sale consideration. It is immaterial whether such oral evidence is challenged in cross-examination or not.