Discretion to admit additional evidence under Order 41 Rule 27 must be exercised judiciously; possession is not the sole criterion for specific performance under Section 55 of the Transfer of Property Act.

KAMAL KHATA, JJ.

RESERVED ON : 10 th December 2024.

PRONOUNCED ON : 20 th December 2024.

ORDER (Per : Kamal Khata, J) :-

1) By this Chamber Summons, filed under the provisions of Order 41 Rule 27 read with Order 43 Rule 2 of the Code of Civil Procedure 1908 (CPC), the original Appellant seeks the following relief:

“(a) That this Hon'ble Court be pleased to permit the Appellants to produce the additional evidence viz. a certified copy of the Agreement of Joint Development dated 31 st December 2005 details whereof is given in the schedule to the above Chamber Summons and/or that the said additional evidence be taken on the record of the above proceedings.”

2) Mr. Navroz Seervai, learned Senior Counsel representing the Applicants/Original Appellant (“Wadia”), submitted that Wadia seeks to introduce the Joint Development Agreement dated 31 st December 2005 (“

JDA”) as additional evidence, which, despite exercising due diligence, could not be produced before the Trial Court. He argued that, had the trial Court considered the JDA, it might have reached a different conclusion regarding issue no 5, which read as follows:

“5. Whether the Plaintiff proves that they have taken effective control and possession of the suit properties as alleged in paragraph 14 of the plaint?

He emphasized that, the conclusion that “the Plaintiff was put in effective control and possession of the suit properties and continues to be so ever since” would likely have been different.

2.1) He categorically asserted that, this application falls under Order 41 Rule 27(1)(aa). He therefore, contends that the Court has two options: i) to hear the Chamber Summons and decide whether the matter should be remanded to the Trial Court or (ii) to take the document on record and deal with it as contemplated under Order 41 Rule 28 of CPC, before finally deciding the Appeal. He further submits that if this is not done, the Appellants case would suffer severe prejudice.

2.2) Mr. Seervai argued that, when a party seeking to introduce additional evidence satisfies the requirements of Order 41, Rule 27 (1) (aa), the party has the right to present such additional evidence before the final hearing of the Appeal to avoid prejudicing its case. He argued that, in such a scenario, the Court has no discretion in the matter. To support his argument, he relied on the decision of the Division Bench of this Court in the case of Hasanate Taheriyyah Fidayyiah V/s Mahesh s/o Kishor Saran reported in 2014 (2) Mh.L.J. 884 which approved the decision of the Himachal Pradesh High Court in Himanshu V/s. Bishnu Dutt reported in 2006 (3) Civil LJ 396. He submitted that the principles laid down in Hasanate’s case squarely apply to present case, holding that an application under Order 41 Rule 27 (1) (aa) must be decided before the Appeal is heard. Furthermore, he distinguished the judgment in Union of India V/s. Ibrahim Uddin & Anr. reported in (2012) 8 SCC 148 , by asserting that it applies solely to cases under Order 41 Rule 27 (1) (b).

2.3) Mr. Seervai relied on another judgment of the Division Bench of this Court, in Ferani Hotels Pvt. Ltd. V/s. Nusli Neville Wadia reported in 2013 (3) MhLJ 509 . In this case, the Division Bench, after considering the principles laid down in Ibrahim Uddin ( supra), decided an application under Order 41 Rule 27 (1) (aa) before hearing the Appeal. He highlighted that, while the application under Order 41 Rule 27 (1) (aa) was resolved in 2012, the Appeal itself is still pending before this Hon’ble Court.

2.4) Mr. Seervai further submitted that, the judgment in Ferani Hotels (supra) was challenged before the Hon’ble Supreme Court, but the Special Leave Petition (SLP) against it was dismissed as withdrawn by Order dated 12 th August, 2016. He also referred to the judgement of the Hon’ble Supreme Court in J. Balaji Singh V/s. Diwakar Cole , reported in (2017) 14 SCC 207 , particularly paragraphs 4, 5 and 10. In this case, the Supreme Court endorsed the practice of Appellate Courts