2012 Supreme(Bom) 1822

High Court of Judicature at Bombay
D.Y. CHANDRACHUD & A.A. SAYED
Ferani Hotels Pvt. Ltd.
Versus
Nusli Neville Wadia
CHAMBER SUMMONS NO.895 OF 2011 IN APPEAL NO.304 OF 2011 IN MISCELLANEOUS PETITION NO.70 OF 2010
Decided on: 27-09-2012

Headnote:Civil Procedure Code, 1908 - Order XLI, Rule 27, Section 107 - Appeals from original decree.

       Production of additional evidence in appellate Court cannot be allowed however appellate Court has power to take additional evidence in exceptional circumstances. - With this brief background it would now be necessary to consider as to whether the appellant has established a case within the meaning of Rule 27(1)(aa) of Order XLI of the Code. Each of the documents would have to be considered separately :

       (i) Serial No. 1 of the Schedule consists of an alleged writing addressed by Bachoobai to the respondent on 12 July 1994. The appellant has stated in its further affidavit that the said writing is a copy of Exhibit-7 and Exhibit-1 respectively to the written statement and to the Counter Claim both dated 31st January, 2011 of Ivory Properties and Hotels. Pvt. Ltd. in suit No. 414 of 2008, being a suit filed by the respondent against Ivory Properties and Hotels Pvt.Ltd. and others in this Court and extracted therefrom. The appellant has stated that the said written statement and Counter Claim are of a date subsequent to the order of the Single Judge dated 15th December, 2010 and could not be produced at the time of the said order dated 15th December, 2010. It is also submitted that a copy of the writing dated 12th July, 1994 addressed by Bachoobai to the respondent is a part of the Court proceedings in which the respondent is a party.

       Now it must be noted that the appellant has, despite an opportunity that was granted by this Court, failed to satisfactorily establish that the aforesaid document was notwithstanding the exercise of due diligence, not within its knowledge or that it could not, after the exercise of due diligence, be produced by it at the time when the decree appealed against was passed. There is an omission to make any reference to the exercise of due diligence with respect to the production of this document. Nor does the appellant establish that despite the exercise of due diligence, this document was not within its knowledge when the order of the Single Judge was passed. The failure to so establish, despite the earlier order dated 1st August, 2012, is significant. The counsel appearing on behalf of the appellant refers to the averments contained in paragraphs 2 and 3 of the further affidavit of the appellant dated 22nd August, 2012. Both these averments, however, merely refer to the earlier affidavit dated 2nd June, 2011 and to the order of this Court dated 1st August, 2012. Clearly, the appellant has failed to establish that the conditions which are prescribed in the exception carved out in Clause-(aa) have been fulfilled. That apart, it would be also necessary to note that in the reply filed by the respondent, reliance has been placed on the provisions contained in Clause-6 of the development agreement dated 2nd January, 1995 under which the respondent as an owner agreed to furnish to the appellant a writing signed by Bachoobai furnishing her concurrence to the development of the property. Moreover, in paragraph 7.3 of the reply, the respondent has stated that a copy of the writing dated 12th July, 1994 was in fact handed over to Mr.G.L.Raheja and his Advocate. Though Mr. GL. Raheja has deposed to other affidavits in the Miscellaneous petition, he has not chosen to controvert the specific averment in the affidavit-in- reply filed by the respondent.

       (ii) Serial No. 2 of the Schedule is a copy of a letter dated 24th October, 2003 addressed by the respondent to Radhakrishna Properties Pvt. Ltd. As in the case of the document at Sr. No. 1, the appellant has failed to establish that the aforesaid document was not within its knowledge, notwithstanding the exercise of due diligence or that it could not after the exercise of due diligence be produced when the decree appealed against was passed.

       (iii) As regards item No. 3 of the Schedule, the senior counsel appearing for the appellant stated that the appellant does not press the Chamber summons with respect to this item, since it forms part of the compilation produced on the record of the Single Judge.

       (iv) Serial No. 4 of the Schedule is an alleged writing dated 10th February, 2011 executed by Ms. Denise Florez in Spanish. Now, in order to consider the case of the appellant, it would be necessary to extract from the further affidavit filed by the appellant, which states thus :

       "8. ... ... I say that respondent in his affidavit dated 10th August, 2010 in the said Miscellaneous petition No. 70 of 2010 had made a vague reference to some settlement between the respondent and the U.S. Charities viz, the Salvation Army, New York and the society for Prevention of Cruelty to Animals, New York. I say that the respondent had thereafter in his affidavit dated 13th September, 2010 in the said Miscellaneous petition No. 70 of 2010 annexed a copy of the Memorandum of Settlement dated 1st August, 2003 purported to have been entered into between the respondent, Ms. Bachoobai Woronzow and the two U.S. Charities. ... ...

       Accordingly, given the suspicious nature of the Memorandum of Settlement, the appellant initiated steps to unravel the truth behind the Indenture dated 26th September, 2001 and the said Memorandum of Settlement to the extent possible by it. The appellant therefore deputed its representative/attorney to see if it was possible to make a present day link to Ms .Bachoobai Woronzow’s close one’s family. The documents listed at Items 4, 7, 9, 12 and 15 of the Schedule to the above Chamber summons have only become available after this exercise.’’

       On behalf of the respondent it is submitted that since the alleged writing dated 10th February, 2011 was not in existence on 15th December, 2010 when the order of the Single Judge appealed against was passed, such a document would not fall within the purview of Order XLI, Rule 27(1)(aa) of the Code. Having considered this objection of the respondent, we are unable to subscribe to the submission. As we have noted earlier, Clause(aa) of Rule 27(1) is in two parts. The first part applies where it is established that notwithstanding the exercise of due diligence, the evidence was not within the knowledge of the party seeking to produce it. The second part envisages a situation where the additional evidence could not after the exercise of due diligence be produced when the decree appealed against was passed. That additional evidence inviting the Court’s attention to a subsequent event can be produced under Order XLI, Rule 27 of the Code was enunciated in. a judgment of the Supreme Court in M.M. Quasim v. Manohar Lal Sharma and others, AIR 1981 SC 1113. The judgment of a Division Bench of this Court in Cimmunidade of Murda v. Additional Deputy Collector and Land Acquisition Officer, 1997 BLR 646 : 1997 (4) All MR 566, is clearly distinguishable. In that case, in an appeal arising from a decision of the District Court in a land acquisition reference, the appellant filed an application under Order XLI, Rule 27(l)(b) seeking to produce two awards passed by the Court subsequent to the date of the award which was in issue in appeal. It was in view of this factual background that the judgment of the Division Bench held that the document sought to be produced at the appellate stage must be in existence during the pendency of the suit or at least at the time of the passing of the decree unless the document which came into being subsequently affects the subject-matter of the suit itself. Court is unable to accept the submission of the respondent that there is an absolute bar on the production of evidence which was not in existence on the date on which the decree appealed against was passed.

       Appellant has failed to establish a case for the production of the document at serial No. 4 within the meaning of Order XLI, Rule 27(1)(aa). The case of the appellant is, to say the least entirely vague. The appellant seeks to assert before the Court that in view of the ’suspicious nature’ of the memorandum of settlement, it initiated steps to unravel the truth behind the indenture of settlement dated 21st September, 2001 and that its representative contacted a close friend of Bachoobai on 10th February, 2011. This does not amount to establishing the exercise of due diligence. The appellant has evidently gone about trying to collect evidence after the judgment of the Single Judge dated 15th December, 2010. An appellant cannot seek to explain its own failure to produce certain evidence before the trial Court by stating that it was after the judgment in trial that it made an effort to and obtained additional evidence. To allow production of such evidence in appeal would be to permit the appellant to fill up a lacuna. Parties have been in serious contest in the Miscellaneous petition for revocation and in the suit of the respondent. The appellant has failed to establish that it had been diligent. As in the case of the other documents adverted to earlier, the affidavit filed by the appellant is vague and lacks in particulars in regard to the due diligence, if any, that was exercised by the appellant during pendency of the proceedings before the Single Judge when the Miscellaneous petition was pending.

       (v) Serial No. 5 of the Schedule purports to be an English translation of the writing dated 10th February, 2011 and must consequently stand excluded for the reasons indicated by the Court earlier, in the case of Serial No. 4.

       (vi) Items 6 and 11 of the schedule can be taken up together. Item-6 is a copy of an affidavit dated 31st December, 2003 of Audrey C. Mody in 1. & I.J. Petition No. 88 of 2004. Item-11 is a certified copy of the probate proceedings in relation to the will and testament dated 17th October, 2001 of Bachoobai (T. & I.J. Petition No. 88 of 2004). We are inclined to allow the production of Items 6 and 11. As regards these two items, the appellant has stated that it had by its Advocate’s letters dated 15th October, 2010, 2nd November, 2010 and 23rd November, 2010 called upon the respondent through his Advocates to furnish copies of the aforesaid proceedings in their entirety. Since the respondent failed to do so, the appellant has stated that it had applied to this Court for certified copies of the probate proceedings on 10th December, 2010. It has been stated that the certified copy of the probate proceedings was available on 25th March, 2011 after the order of the Single Judge dated 15th December, 2010 and could not be produced at the time of the order. In Court’s view, the appellant will be entitled to produce documents at Items 6 and 11 having regard to the provisions of Order XLI, Rule 27(1)(aa) of the Code.

       (vii) Serial No. 7 of the schedule is a copy of the alleged will and testament dated 4th February, 1992 of Bachoobai. The appellant has averred that it was not aware of the will dated 4th February, 1992 until a meeting in February, 2011 between the representative of the appellant with a close associate of Bachoobai in New York. As in the case of the writing dated 10th February, 2011 (Serial No. 4), Court is of the view that the appellant in this case as well has failed to explain what steps were pursued with due diligence by the appellant during the pendency of the proceedings before the Single Judge. Absolutely no averments are contained in the further affidavit to establish facts on the basis of which a case within the meaning of Order XLI, Rule 27(1)(aa) of the Code can be said to be established.

       (viii) Serial No. 8 of the Schedule consists of a copy of the probate proceedings in the U.S. Court in relation to the will and testament dated 11th December, 2001 of Bachoobai. The objection of the respondent at the hearing is that the appellant is deliberately not producing a certified copy. As regards this item, counsel appearing on behalf of the appellant states that the Chamber summons is not pressed at this stage in relation to the aforesaid document but liberty may be reserved to the appellant to take out a fresh Chamber summons upon the appellant producing a duly certified copy of the probate proceedings. This request is not opposed. The Chamber summons is hence not pressed at this stage in respect of Serial No. 8. Liberty is reserved as prayed keeping all the rights and contentions of both parties open.

       (ix) Serial No. 9 of the Schedule is a copy of Bachoobai’s declaration dated 11th December, 2001 regarding health care decisions and health care proxy. The items at serial Nos. 12 to 15 pertain to the medical records of Bachoobai. As regards these documents, the appellant has failed to explain what if any steps were pursued by the appellant with due diligence, prior to the passing of the judgment appealed against. In the absence of an explanation of the steps, if any, initiated and pursued with due diligence prior to the order of the Single Judge, production cannot be allowed.

       In the circumstances, production of the documents at Serial Nos. 1, 2, 4, 5, 7, 9 and 12 to 15 cannot be allowed at the appellate stage. The chamber summons is made absolute in relation to the documents set out at Serial Nos. 6 and 11 of the Schedule. The chamber summons has not been pressed in relation to the documents at Serial Nos. 3 and 8. As regards Serial No. 8, liberty is granted as prayed, to the appellant to take out a fresh Chamber summons on the basis of a certified copy of the proceedings of the Probate Court in the U.S; keeping all the rights and contentions of the parties open. However, on the request of both the counsel, it is clarified that the issue of relevance and admissibility is kept open to be decided at the appropriate stage.