Back
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RITU TAGORE, J.
Rajeshwar Singh – Appellant
Versus
Ramesh Kumari (Since Deceased) Through Lrs And Others – Respondents
CR No. 6555-2023 (O&M)
Decided on : 19-01-2024
Additional Evidence - Civil Procedure - Section 107, Order 41 Rule 27 CPC - The judgment discusses the provisions of Section 107 and Order 41 Rule 27 CPC, allowing the Appellate Court to determine a case finally, remand a case, frame issues, and take additional evidence. The court analyzed the facts of the case, the framing of additional issues, and the permission to produce additional evidence. It highlighted the principles governing the granting or disallowing of amendments under Order 6 Rule 17 CPC and emphasized the need for additional evidence to pronounce judgment effectively and in the interest of justice.
Fact of the Case:
The petitioner filed a suit for declaration of ownership and possessory rights in a property. The trial Court decreed the suit in favor of the petitioner. The respondents filed an application for additional evidence in the appeal, seeking to produce death certificates of witnesses to the alleged Wills. The petitioner opposed the application, claiming lack of due diligence by the respondents.
Finding of the Court:
The Appellate Court partly allowed the application for additional evidence, permitting the respondents to produce the death certificates of witnesses to the Wills. The Court held that the evidence would enable it to pronounce judgment effectively and that the respondents should not be penalized for any lapse, whether caused by inadvertence or inexperience of counsel.
Issues: The main issue was the admissibility of additional evidence in the appeal, specifically the death certificates of witnesses to the alleged Wills. The Court also considered the due diligence of the respondents in producing the evidence and the impact of inexperience of counsel on the case.
Ratio Decidendi: The Court emphasized the enabling power of the Appellate Court to allow additional evidence for any substantial cause and the need for such evidence to pronounce judgment effectively and in the interest of justice. It highlighted the principles governing the granting or disallowing of amendments under Order 6 Rule 17 CPC.
Final Decision: The revision was found to be devoid of merits and was dismissed. The pending applications, if any, were also disposed of accordingly.
Key Points: - The Appellate Court has the power to take additional evidence or require such evidence to be taken under Section 107 of the CPC (!) (!) . - Order 41 Rule 27 CPC outlines the conditions under which an Appellate Court may allow additional evidence (!) (!) (!) (!) . - Additional evidence can be allowed if the Court requires it to pronounce judgment effectively or for any other substantial cause (!) (!) (!) . - A party seeking to produce additional evidence must establish that despite due diligence, the evidence was not within their knowledge or could not be produced at the time of the decree appealed against (!) (!) . - The death certificates of attesting witnesses to the Wills were permitted as additional evidence as they are official documents and would enable the Court to pronounce judgment effectively [23000829010010][23000829010023]. - A litigant should not be penalized for any lapse, whether caused by inadvertence or inexperience of their counsel [23000829010023]. - The revision petition was dismissed as devoid of merits [23000829010024]. - The Appellate Court partly allowed the application for additional evidence, permitting the respondents to produce the death certificates of witnesses to the Wills [23000829010010]. - The Appellate Court held that the additional evidence would enable it to pronounce judgment effectively [23000829010010]. - The request to examine a substitute witness was dismissed as it would amount to filling up lacunae [23000829010010].
JUDGMENT :
Ritu Tagore, J.
The petitioner has filed this revision petition against the order dated 10.10.2023 (Annexure P-5) passed in CA No.91 of 2017 titled 'Ramesh Kumari and another Vs. Rajeshwar and others' whereby learned Additional District Judge, SAS Nagar partly allowed the application moved by respondents (appellants-defendants before the learned Appellate Court) under Order 41 Rule 27 Code of Civil Procedure (for short referred to as 'CPC') for additional evidence.
2. Upon notice, respondent No.1 (iii) and 2 filed the reply and opposed the prayer of the petitioner, pleading non- maintainability of the petition and being devoid of merits.
3. Learned counsel for the petitioner (plaintiff before the trial Court) submits that petitioner filed a suit for declaration, seeking his ownership and possessory rights in the suit property (fully detailed in the head note of the plaint), to the extent of 1/4th share on the basis of natural succession after death of his father late Sant Rajinder Singh, by declaring relinquishment deed dated 08.07.2009 and the subsequent mutations No.2266, 2314 and 1453, entered and sanctioned in the revenue record, on the basis of the said relinquishment deed as null and void, not binding upon the right, title and interest of the petitioner to the extent of his share in the suit property, with additional relief of grant of decree of permanent injunction against the respondents (defendants), restraining them from alienating the suit land to the extent of his share.
4. Counsel for the petitioner further submits that respondents (defendants) appeared, filed their written statements, and parties led their respective evidence on the issues framed by the Court, on the pleadings submitted by the parties. Thereafter, the learned trial Court on appraisal of the evidence, decided the suit and decreed the same in favour of the petitioner (plaintiff) vide judgment and decree dated 11.01.2017 (Annexure P-1).
5. Arguing further, learned counsel for the petitioner submits that along with the appeal respondents (defendants) filed an application dated 17.02.2017 under Order 41 Rule 27 CPC (Annexure P-2) seeking permission to produce additional evidence and again, moved another application dated 09.11.2021 (Annexure P-3) to lead additional evidence. The petitioner resisted the applications, claiming their non-maintainability; with an attempt on the part of the respondents to fill up lacunae in their evidence. It is argued that learned Appellate Court, erroneously allowed the application for additional evidence, though partly.
6. Learned counsel further submits that additional evidence can be allowed, when such evidence was not in the knowledge of the applicant despite exercise of due diligence, or could not produce the same. However, learned Appellate Court overlooked the above legal principles while allowing the application. In fact, respondents had prior knowledge of the death of the witnesses to the alleged Wills, as son of one witness deposed about the death of his father. Despite that, no cogent reason was furnished by the respondents for not producing the death certificates of the marginal witnesses to the alleged Wills, especially when relief claimed is on the basis of the alleged Wills.
7. Further, it is stated that learned Appellate Court also failed to note that after framing additional issue with respect to the Wills, respondents (defendants) led evidence. In this regard, reference was made to para No.6 and 7 of the judgment of the trial Court, wherein it is mentioned that additional issue was framed on 03.01.2017. Thereafter, the parties led the evidence.
8. Learned counsel for the petitioner argues that the respondents (defendants) had the opportunity to lead the evidence at the time when the additional issue was framed. Now, they should not be permitted to lead the evidence that was left out by them. Learned Appellate Court, unfortunately, failed to note this material fact and permitted the respondents to lead
The central legal point established in the judgment is the enabling power of the Appellate Court to allow additional evidence for any substantial cause and the need for such evidence to pronounce jud....
The discretion of the appellate court to determine the necessity of additional evidence and the probative value of the evidence in arriving at a just decision.
The main legal point established in the judgment is that the power to permit additional evidence at the appellate stage under Order 41 Rule 27 CPC is limited and should be exercised sparingly, with s....
Appellate court cannot admit additional evidence under Order 41 Rule 27 CPC absent due diligence proof or necessity for judgment; must record reasons; erroneous allowance despite negligence and delay....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
