Narain Das v. Iind Addl. Dist. Judge

1. An alleged Will was sought to be introduced under Order 41, Rule 21 in appeal No. 27 of 1993 pending before the learned Additional District Judge, IInd Court, Moradabad, arising out of a decree passed in original suit No. 207 of 977. By an order dated 1-4-1998 passed by the learned Additional District Judge in the said appeal, the application moved in this regard was rejected. This order is under challenge in the present writ petition.

2. Mr. Rajesh Tandon, learned counsel for the petitioner, contends that the learned lower appellate Court had illegally exercised his jurisdiction in rejecting the said application in the facts and circumstances of the case. According to him, acceptance of additional evidence is a rule and refusal is an exception. In order to decide the question at issue such evidence should have been allowed. He relies on a decision in the case of Jaipur Jaipur Development Authority v. Kailashwati Devi (Smt)., 1997 SCFBRC 386 : ((1997) 7 SCC 297 : AIR 1997 SC 3243). He further contends that it was never known to the petitioner as to in whose custody the said Will was lying though he had disclosed in his written statement as well as in the evidence. It was only in the morning of 1-4-1988 that he came to know about the said Will from Phool Singh. Thus, this was one of the reason for which the petitioner was unable to produce the Will in the trial Court despite his due diligence. On this ground he prays that the impugned order dated 1-4-1998 should be set aside.

3. Mr. K.K Arora, learned counsel for the opposite party on the other hand contends that the application under Order 21 Rule 27 does not contain any of the ingredients as provided in sub-rule (1) of Rule 27 of Order 41. He further contends that it is not supported by any affidavit, by which it can be ascertained that the statement which are being advanced seeking to bring about the ingredients of sub-rule (1) of Rule 27, Order 41, cannot be accepted. He next contends that the said application did not contain any of the ingredients mentioned in sub-rule (1) of Rule 27, Order 41. Therefore, the order passed by the learned appellate Court was justified.

4. I have heard Mr. Tandon and Mr. Arora both at length and have also perused the record placed before this Court.

5. Order 41 rule 27 permits the parties to an appeal to produce additional evidence upon certain contingencies as prescribed therein which are in the following terms:

“27. Production of additional evidence in appellate Court: (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But if—

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause.

the appellate Court may allow such evidence or document to be produced or witness to be examined.”

6. Rule 27 begins with a negative condition. It prescribes that parties to an appeal shall not be entitled to produce additional evidence, oral or documentary in the appellate Court. Thus, it creates a complete prohibition in respect of production of evidence, oral or documentary in the appeal. But, however, it has made some exceptions which are contained in clause (a), (aa) & (b). Thus, the negative condition contained in the scheme of the rule, indicates that such evidence can be admitted only when the conditions mentioned in clause (a), (aa) & (b) are fulfilled. When the statute specifically prescribes particular conditions, in which such evidence can be admitted, when evidence are wholly inadmissible, in that event the conditions appears to be mandatory. Therefore, in view of the negative stipulation, unless those conditions are satisfied, no evidence can be admitted or in other words evidence could be admitted only when one or the other of these conditions are fulfilled and in no other circumstances.

7. In Arjan Singh v. Kartar Singh, AIR 1951 SC 193 and Natha Singh v. Financial Commr. Taxation, Punjab, (1976) 3 SCC 28 : AIR 1976 SC 1053, it was held that the discretion given is strictly circumscribed by the limitations specified in the rule. If the additional evidence is allowed contrary to the principles governing the reception, it will have to be ignored as if it is non existent.

8. Now these three conditions or contingencies provide that, first, when the evidence was refused to be admitted by the Court below when it ought to have admitted. This condition does not apply in the facts and circumstances of the present case. The second condition is that the party seeking to produce additional evidence has to “establish” that notwithstanding the exercise of due diligence, such evidence was not within his knowledge he could not, produce such evidence at the time when the decree was passed inspite of the exercise of due diligence. Thus, there are two conditions namely, one that it was not within the knowledge and the other, that though it was within knowledge but could not be produced after the exercise of due diligence.

9. In the present case, the first condition is not attracted for the simple reason that existence of the Will was pleaded in the written statement and was also stated in the oral evidence, therefore, it was within the knowledge.

10. The ground that has been put forth by the appellant was the second ground that after the exercise of due diligence, it could not be produced. Now in order to bring the case within the ambit of clause (aa) that it could not be produced after exercise of due diligence as contained in the said clause, it was the responsibility of the appellant to ‘establish’ such fact. The expression ‘establish’ means that one has to assert on the face of the dispute raised by the other. Admittedly, the question has been disputed. The Court has to rely on the pleadings which are adequately verified. The verification can be simple or through affidavit.

11. Order 19 provides as to in respect of which fact, affidavit is required. When the statute requires one of the parties to establish certain facts through an application without requiring oral evidence, in that event it is to be established through affidavit. When adducing oral evidence a witness has to give his evidence on oath and is also subjected to cross-examination. But when a matter is sought to be established in a process other than oral evidence which is a double checking, it has to be through affidavit. Thus, an application under Order 41 rule 27 which requires establishment of a particular fact within the contingencies of clause (aa), it has to be supported by an affidavit.

12. In the case of M.M Quarim v. Manohar, (1981) 3 SCC 36 : AIR 1981 SC 1113, it was held that the affidavit sworn at the foot of application for additional evidence is sufficient compliance with Rule 27.

13. None of the parties had contended neither the Court had observed that the Court had required the alleged document to be produced in order to enable it to pronounce the judgment or for any other substantial cause. Here in this case, clause (b) has not been resorted to therefore, it is not necessary to refer to the said clause for our present purpose.

14. Now in order to ascertain as to whether the contingency contained in second part of clause (aa) is established or not, it would be necessary to refer to the relevant facts of the case.

15. Admittedly, the Will was referred to and pleaded in the written statement and was also mentioned in the oral evidence of the defendant. But no explanation appears to have been given in the application as to what had prevented the appellant from producing the said document before the trial Court when the decree was passed except alleging that he had no knowledge as to in whose custody the Will was lying and he came to learn about when the Will was sought to be produced by one Phool Singh. The application which contained such explanation has been produced through a supplementary affidavit which is annexure-2 to the supplementary affidavit. In the said application which is dated 1-4-1988, it has been alleged that the Will was written by Phool Singh, who informed the petitioner only yesterday that he had discovered the Will and therefore he had attempted to bring the said Will in appeal through an application filed by him, but the said application was refused to be entertained. Thus, the petitioner did not have any knowledge with whom the Will was lying till the morning of 1-4-1988 and therefore the Will should be admitted. This application appears to have been filed through counsel, who had signed the same. It does not appear from the said application that it was signed by the petitioner. It was also not supported by affidavit. It is difficult to rely on such application which is even not signed by the defendant and also not verified by him. Then again, unless it is affirmed by an affidavit, it is difficult to accept the same. The other application which is annexure-3 to the supplementary affidavit, was also filed through counsel but not signed by the defendant. However, Mr. Tandon contends that the said applications were signed by the defendant. Be that as it may, even if those are signed, admittedly if is neither verified through simple verification nor by affidavit. Then again, the ground taken is vague and indefinite. The fact remains that it was only on 1-4-1988 when Phool Singh came in and tried to introduce the document through application filed by him, it is not known for what reason the knowledge dawned on the petitioner. The application does not contain sufficient reason so as to bring the case within the ambit of clause (aa). The other application which is annexure-4 to the supplementary affidavit, is also in the same line as that of annexure-2 which indicate that the application, affidavit and the Will will be attached. It is stated by Mr. Tandon that the said affidavit and application of Phool Singh has been annexed as annexure-4 to the writ petition. Said Phool Singh appears to have filed an application along with affidavit seeking to introduce the said Will. Now Phool Singh is not a party to the appeal. Order 41 rule 27 is a right given to the parties to the appeal. Therefore, said Phool Singh, a stranger to the appeal, cannot come and file application or affidavit as alleged. When he is not entitled to make any such application, in that event the application and affidavit filed by him cannot be looked into and cannot support the case of the petitioner.

16. In Kachireddi v. Sakireddi, 31 Cal WN 245 : (AIR 1927 PC 27), it was held that when application is made at a late stage to put in evidence “resnoviter ad notitiant preventa, one of the preliminary duties of the applicant is to show that it was owing to no want of diligence on his part that the matter was not discovered before. In Mrs. Indira Bhalchandra Gokhale v. Union of India, AIR 1990 Bom 98 at page 101 it has been held that Order 41 rule 27 is not to be taken recourse to merely because a party at the stage of appeal finds that some material which could have tilted the decision in its favour has not been produced but should have been. In Ruwaiya v. Maqbul, AIR 1936 Allahabad 217 and Durga v. Ramrati, AIR 1937 Patna 584, it was held that a party has a right to produce additional evidence if he satisfies the Court that he exercised due diligence and the evidence was not within his knowledge.

17. Thus, the applicant is required to establish the fact of his exercise of due diligence. In the present case, it is apparent that the appellant was not able to establish that he had exercised due diligence as discussed above.

18. So far as the decision in Jaipur Development Authority's case ((1997) 7 SCC 297 : AIR 1997 SC 3243) (supra) is concerned, the same does not help the contention of Mr. Tandon. Inasmuch as in the said case it was held that conditions mentioned in the said clauses provided in sub-rule (1) of Rule 27 must be complied with by the party producing additional evidence to the extent that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or he could not produce the same after exercise of due diligence. In the said case, it was held that if such conditions are complied with, then it is not necessary as to whether one has led evidence or has not produced any evidence. The sub-rule does not make any distinction between who has produced evidence and one who has not produced evidence in the trial Court. All that is required is that the conditions in the body of the said rule, must be proved to exist. It is not permissible to restrict clause (aa) for the benefit of only those who have adduced some evidence in the trial Court. Thus, the said decision does not help the petitioner in the facts and circumstances of the present case.

19. Mr. Tandon also draws my attention to an application and affidavit filed on 12th May, 1998, namely after the order dated 6-5-1998 was passed by this Court on the writ petition when these very points were confronted to Mr. Tandon. Mr. Tandon contends that now the application dated 12th May, 1998 contains sufficient reasons and is also supported by affidavit, therefore, the Court should decide the said application and affidavit.

20. I am afraid such a step could be available to the appellant after the order dated 1-4-1998 was passed and the same has been challenged in the present writ petition. The decision is admittedly a case decided in respect of a particular issue in between the parties. The principle of res judicata even applies to the different stages of the same proceedings. Reference may be had to the case of Y.B Patel v. Y.L Patil, (1976) 4 SCC 66 : AIR 1977 SC 392 and Prahalad v. Sukhdev, (1987) 1 SCC 727 : AIR 1987 SC 1145. Once he had sought to introduce the document and had suffered an order which has since been challenged here unsuccessfully in the present petition, it is not open to him to fill up the lacuna by filing subsequent application and take advantage thereof. If such a situation is permitted, in that event, the principle of public policy, on which section 11 has been based in the Code or the principle of res-judicata is conceived of, would altogether stand frustrated.

21. After having perused the order passed by the appellate Court, it appears that the appellate Court had considered all these aspects and had come to the conclusion that the case does come within the ambit of clause (aa) of Rule 27(1), Order 41. In the facts and circumstances of the case as observed earlier, I do not find any reason to disagree with the reasonings given by the Court below.

22. For all these reasons, I am not inclined to interfere with the impugned order. The writ petition, therefore, fails and is accordingly dismissed. However, there will be no order as to costs.

23. Petition dismissed.