Additional evidence under Order 41 Rule 27 CPC cannot be admitted if the party failed to exercise due diligence during the trial and the evidence was within their knowledge, especially when the application is filed with significant delay.

HARPREET KAUR JEEWAN, J.

1. The appellant-defendant has filed the present Regular Second Appeal being aggrieved of the concurrent findings of the trial Court and the First Appellate Court decreeing the suit of the respondent-plaintiff, whereby, the appellant-defendant has been restrained from acting on the basis of the demand notice.

2. As per brief facts, the respondent-plaintiff was issued a memo dated 28.12.1990 by the appellant-respondent for recovery of Rs.2,87,291/- with respect to electricity connection. The respondent-plaintiff challenged the said memo alleging that it is violative of the provisions of Section 26 of the Electricity Act. The appellant-defendant has not referred the matter to the sole arbitrator and directly raised demand from the respondent-plaintiff.

3. The suit was contested by the appellant-defendant. It is the contention of the appellant-defendant that the checking of the premises of the respondent-plaintiff was made by the Flying Squad. The electricity meter was showing less consumption of the electricity to the extent of 69.97%. The inspection of the meter was carried out by the Flying Squad in the presence of the electrician of the respondent-plaintiff. It was contended that the appellant-defendant is ready to refer the dispute to the Chief Electrical Inspector.

4. The trial framed the following issues : -

“1. Whether the demand raised by defendants No.1 dated 28.12.90 is null and void? OPP

2. Whether the plaintiff is entitled to the injunction prayed for? OPP

3. Whether the plaintiff is stopped to file the suit by his act and conduct? OPD

4. Whether the suit is not maintainable in the present form? OPD

5. Relief.”

5. Parties led their evidence and the trial Court decreed the suit by setting aside the said demand notice.

6. The First Appellate Court dismissed the appeal filed by the appellant-defendant.

7. While dismissing the appeal, the First Appellate Court has observed that the appellant has failed to lead evidence to show as to how a conclusion was made that the meter in question was showing less consumption. The appellant should have found actual consumption of the electricity by installing a check meter or by using any other electrical instrument to check the actual consumption of the electricity but there is no such evidence on record. As such, it cannot be concluded that the electric meter was giving slow reading.

8. The appellant-defendant had filed the present Regular Second Appeal impugning the judgment and decree dated 06.04.1994, passed by the Additional District Judge, Ferozepur.

8.1. Along with the appeal, the appellant has also filed an application under Order 6 Rule 17 CPC seeking amendment of the written statement filed by the appellant-Board.

8.2. An application bearing Civil Miscellaneous No.3403-C-1994 was filed by the appellant-defendant under Order 41 Rule 27 read with Section 151 CPC for leading additional evidence by way of proving the check meter report dated 19.12.1990 (Annexure ‘A’).

8.3. The application for leading additional evidence as well as the application for amendment of the written statement are liable to be dismissed on the ground of delay and laches. The alleged inspection conducted by the Flying Squad took place on 18.12.1990. The check meter installation and subsequently, its report, is stated to be of the next day i.e. 19.12.1990. The su