Citation Codes

Equivalent Citations

citation codes

Case Number

C.M No. 644 of 1991 in C.R 340 of 1990

Judges

Ms. Usha Mehra, J.

Acts

provisions of Rule 27 (1) of Order 47
provision of Rule 27
Order 41 Rule 27

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Smart Summary

Judgment Summary — Ms. Usha Mehra, J.

Factual and Procedural Background

This application arises from a revision petition in which the petitioner sought permission to place on record three rent receipts said to have been executed by Smt. Surjit Kaur, the previous landlady from whom the respondent purchased the house in 1979. The petitioner contended that he became a tenant of Smt. Surjit Kaur around 1973–1974 and that, in early 1974, the landlady issued receipts confirming that the premises were let for residential-cum-commercial purposes. Those receipts were not produced earlier because they could not be traced when the written statement was filed and when evidence was earlier adduced. During the pendency of the revision petition (filed in March 1990), on the advice of the petitioner's counsel (Mr. H.S. Dhir), the petitioner searched old house and business records and his wife located a file containing three old rent receipts. The petitioner then made the present application to place those receipts on record. The respondent contested the application, pointing to an earlier categorical statement by the petitioner when he testified as R.W.1 on 12 December 1989 that no agreement or rent receipts had been issued by Smt. Surjit Kaur, and alleging that the receipts now produced are forged or fabricated. The Court was asked to decide whether these additional documents could be admitted at the appellate stage under Order 41 Rule 27 CPC.

Legal Issues Presented

Whether the three rent receipts, discovered and tendered during the pendency of the revision petition, can be admitted as additional documentary evidence under Order 41 Rule 27 of the Code of Civil Procedure.
Whether the petitioner has established that, notwithstanding the exercise of due diligence, the receipts were not within his knowledge or could not be produced at the time of the trial or earlier appeal proceedings.
Whether the circumstances relied upon by the petitioner amount to a ground that justifies allowing additional evidence at the appellate stage (for example, whether the receipts were newly discovered material evidence or whether the appellate court requires them to pronounce judgment).

Arguments of the Parties

Petitioner's Arguments

The petitioner claimed tenancy from about 1973–1974 and that receipts were issued in early 1974 showing permission for residential-cum-commercial user of the premises.
The receipts could not be traced earlier and therefore were not produced with the written statement or at the earlier trial or evidence stage.
During the pendency of the revision petition (circa 1990), on the advice of his counsel (Mr. H.S. Dhir), the petitioner searched old house and business records; his wife searched for about one and a half months and located a file containing three rent receipts, which were handed to counsel and then sought to be placed on record by the present application.
The petitioner asserted that the non-production of the documents earlier was not intentional or deliberate and that the receipts were not within his knowledge despite his search when prompted by counsel.

Respondent's Arguments

When the petitioner appeared as R.W.1 on 12 December 1989 he had given a categorical statement that no agreement was executed with Smt. Surjit Kaur and that no rent receipt was issued; hence the receipts now produced are forged and fabricated.
If the receipts were genuine they would have been within the petitioner's possession or control earlier and the petitioner did not attempt to trace them; he cannot now take advantage of his negligence to introduce additional evidence.
The petitioner had previously, in a suit before a Sub-Judge, admitted that the rent since 1979 was Rs. 275 per month, whereas the alleged receipts show Rs. 250 per month — this discrepancy was urged as evidence of fabrication.
No revenue stamp was affixed to the receipts as would be expected if they were genuine and issued at the relevant time; this was relied upon to challenge authenticity and the propriety of admitting them now.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Soonda Ram v. Rameshwar Lal, (1975) 3 SCC 698 : AIR 1975 S.C. 479	The principle that where requisite findings of fact have been recorded on appraisal of the evidence adduced by the parties, and the issue was decided on that evidence, additional evidence should not be allowed at the appellate stage; no justification for remand in such cases.	The Court relied on this authority to support the proposition that the appellate forum should not permit additional evidence simply to remedy deficiencies in a party's case when the matter was already decided on the evidence before the trial court. The precedent fortified the Court's refusal to admit the receipts as additional evidence where the petitioner had not satisfactorily shown due diligence or a basis for treating the receipts as newly discovered evidence.

Court's Reasoning and Analysis

The Court began by identifying and reproducing the governing provision, Order 41 Rule 27(1) of the Code of Civil Procedure, which restricts parties from producing additional evidence in the appellate court except in limited circumstances: (a) where the trial court refused to admit evidence which ought to have been admitted; (aa) where the party shows that, despite exercising due diligence, the evidence was not within his knowledge or could not be produced at the time of the trial or when the decree was passed; or (b) where the appellate court requires the document or witness to pronounce judgment or for any other substantial cause.

Applying the rule, the Court observed that the petitioner had not established any of the statutory grounds permitting additional evidence. Specifically:

The petitioner failed to prove that he had exercised due diligence to trace or produce the receipts earlier. The Court emphasized that the initial burden is on the applicant to show that failure to produce the documents earlier was not due to lack of diligence.
The factual account given by the petitioner — that the receipts were located only after counsel insisted on searching records and that the petitioner's wife found them after a period of searching — led the Court to conclude that the petitioner displayed a casual attitude and had not satisfied the requirement of due diligence.
The petitioner had earlier given a categorical statement as R.W.1 that no rent receipts were issued by the previous landlady. The Court treated this earlier admission as undermining the present claim that the receipts existed but were unknowable to the petitioner earlier.
The written statement also did not indicate the existence of any written agreement or receipts, which the Court noted as additional evidence that the petitioner had opportunities earlier to produce such material and did not do so.
The respondent pointed to discrepancies (different rent amounts in earlier litigation) and absence of revenue stamps to challenge authenticity; the Court declined to adjudicate the genuineness of the receipts but observed these contentions when assessing the overall case for admitting additional evidence.
The Court invoked the Supreme Court's decision in Soonda Ram (supra) to underscore that Order 41 Rule 27 is not meant to permit a litigant to patch up weak parts of his case at the appellate stage where issues were already decided on the basis of evidence placed before the trial court.

On this combined analysis — statutory criterion, the petitioner's prior admissions and conduct, and the guiding authority — the Court concluded that the petitioner had not satisfied the requirements for admitting additional documentary evidence at the appellate stage.

Holding and Implications

Holding: The application to place the three rent receipts on record is rejected; the appeal (revision) is dismissed.

Implications:

Direct effect on the parties: The three rent receipts will not be admitted as additional evidence in the pending revision proceedings; the petitioner is not permitted to rely on them at this appellate stage.
Broader legal implication: The decision applies the established limitation in Order 41 Rule 27 CPC — additional evidence will not be permitted where a party fails to show due diligence or other statutory grounds permitting such evidence. The Court expressly relied on the Supreme Court authority in Soonda Ram to reinforce that appellate courts should not be used to rectify deficiencies in a party's case when the matter was already tried and decided on the evidence before the trial court. The opinion does not announce any new legal principle or departure from existing authorities; it applies the existing rule to the facts at hand.

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Trilochan Singh v. Usha Dhir .

Ms. Usha Mehra, J.— By this application, the petitioner wants to place on record the three rent receipts alleged to have been executed by Smt. Surjit Kaur, the previous landlady from whom the present respondent purchased the house in question in 1979. According to the petitioner, he was a tenant of Smt. Surjit Kaur, who permitted him to use the premises for residential-cum-commercial purposes somewhere in 1973-1974.

2. In the beginning of 1974, landlady issued the reecipts confirming the fact that the tenanted premises was allowed to be used for residential-cum-commercial purposes. The fact that the premises was let out for residential-cum-commercial purposes was specifically pleaded before the Addl. Rent Controller. However, since these receipts could not be traced out, therefore, these could not be placed at the time of filing the written statement or at the time when the evidence was adduced or subsequent thereto. Even after Usha Dhir, the respondent herein, purchased this premises, the petitioner had been using the same for residential-cum-commercial purposes. This fact was in the knowledge of the respondent. Till the revision petition was filed in 1990 these receipts were not traceable. However, during the pendency of the revision petition, the present Counsel Mr. H.S Dhir was of the firm view that at the time of inception of tenancy there must be some writing/receipt/correspondence between the landlady and the petitioner. On being stressed by the Counsel, the petitioner took the matter seriously and searched out his old record in the house and business premises. On the advice of the Counsel when the record was searched, three rent receipts beside other letters and bills ware found which the petitioner in turn handed over to the lawyer and consequently present application. That the non-production of documents was neither intentional nor deliberate.

Page: 5363. This application has been contested by the respondent on the ground that the petitioner, when he appeared in the witness box as R.W 1 on 12th December, 1989, made a categorical statement that no agreement was executed with Smt. Surjit Kaur the previous owner and that the said landlady/owner never issued any rent receipt. The receipts which have now been purported to have been issued by the erstwhile landlady are, therefore, forged and fabricated documents. If, however, these alleged receipts were issued by previous landlady, then these were in possession and under the control of the petitioner. He did not try to trace these receipts. He cannot take advantage of his negligence, and, therefore, at this stage additional evidence should not be allowed.

4. I have heard the learned Counsel for the parties and perused the record. In order to decide this application we have to look to the provisions of Rule 27 (1) of Order 47 which are reproduced as under:

O. 41 R. 27(1) of C.P.C

“(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 the 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.”

5. The perusal of the above rule makes it clear that the additional evidence can be adduced only when the same was refused by the Trial Court or when the petitioner establishes that in spite of exercising due diligence, this evidence was not within his knowledge or could not be traced out in spite of the best efforts or that this evidence is required by the Appellate Court. None of these grounds are made out in this application. The petitioner never exercised due diligence to trace out these rent receipts. The primary duty of the applicant is to show that it was owing to no want of diligence on his part that the documents could not be traced out. In fact this rule covers discovery of new and important evidence not available at the trial as a ground for allowing additional evidence. Therefore, the word used in the rule “within his knowledge” would mean new or fresh evidence which was discovered subsequently and for that the applicant has to satisfy the Court that he exercised due diligence but still such evidence was not within his knowledge. Order 41 Rule 27 is not to be taken recourse to merely because a party at appellate stage finds that some material which could have titled the scale in his favour has not been produced which should have been produced. It is unimaginable that the petitioner who had been litigating with the respondent for more than Page: 5376 years was not aware of the existing of these rent receipts and on the insistence of the lawyer, his wife searched out these receipts. This averment of the petitioner in this application clearly shows that he did not exercise due diligence. It is not believable that a tenant would not remember as to whether any receipt was issued by his landlord and for that he had to be reminded by his lawyer. After all he was a tenant and if any rent receipts were issued by the landlady it must have been in his knowledge. Para 7 of his application makes a very interesting reading:

PARA 7

“That the petitioner herein preferred the revision in March, 1990 before this Hon'ble Court as no documents were traceable about the permission granted by the previous landlady Smt. Surjit Kaur for residential cum commercial user. During the pendency of this revision petition the petitioner also engaged Shri H.S Dhir, Advocate, for prosecuting this revision petition. Mr. Dhir after going through the brief asked the petitioner as to whether any rent receipts were issued by the landlady at the time of inception of tenancy of these premises or subsequent thereto or at any point of time or there was any correspondence regarding the user of the suit premises for residential cum commercial purpose resting with the petitioner herein, because Mr. H.S Dhir was of the firm view that at the time of inception of contract of tenancy there must be some writing/receipt/correspondence between the landlady and the petitioner herein. This fact was stressed by the Counsel to be taken as a very serious matter and the petitioner was asked to go through the entire record of his house and business. Mrs. Harcharan Kaur wife of the petitioner herein who had accompanied the petitioner in the chamber of Mr. Dhir was advised to go through the old records and if any document was available, the same should taken out for bringing the same to the notice of the Hon'ble Court. After searching the house and business site for about 1½ months, Mrs. Trilochan Singh was able to trace out a very old file containing three rent receipts apart from other letters and bills etc. which they brought to the Counsel. After seeing these receipts Counsel opined that these receipts are very much material and relevant for a just and proper decision of the case. These receipts could neither be traced nor located by the petitioner herein despite exercising his due diligence as he had lost sight by them due to the passage of time.”

6. This shows the casual attitude of the tenant. He never bothered to find out the receipts but it was his Counsel who was of the firm view that there must be some writing and, thereafter, the tenant took the matter seriously. To my mind, the petitioner has not been able to satisfy to this Court that he exercised due diligence. The additional evidence is allowed to be produced for the requirement of the Court and not to enable a party to make good the deficiency in his case. The provision of Rule 27 are not intended to be invoked to allow a litigant who had been unsuccessful in the Trial Court to patch up the weak parts of his case and fill up the omissions at appellate stage. Supreme Court in the case of Soonda Ram v. Rameshwar Lal, (1975) 3 SCC 698 : AIR 1975 S.C 479, opined that where requisite findings of fact have been recorded on appraisal of the evidence adduced by the parties. The issue was decided on the evidence adduced by the parties Page: 538and the defect was not such that could enable the Court to obliterate and ignore the evidence adduced on the point. In such an eventuality the High Court committed no error, rather, it was right in not permitting the appellants to adduce any additional evidence at the appellate stage. There is no justification for making an order of remand in such a case. The petitioner has not satisfactorily explained the best efforts made and still this additional evidence he could not adduce at the first instance or that he was deprived of the opportunity to produce this evidence. That apart, petitioner appearing as R.W 1 on the contrary in no uncertain words admitted that the previous landlord/owner never issued any rent receipt to him. So having admitted that no rent receipts were issued, where is the question now for him to let these be produced. The petitioner in his written statement,’ in reply to para 14, did not deny that there was no written agreement. Had these rent receipts been in existence indicating the purpose of letting, the petitioner at the first available opportunity would have mentioned so in the written statement itself. Mr. Kamlesh Kumar, appearing for the respondent, contended that the petitioner admitted in a suit filed by him before Sub-Judge that the rate of rent since 1979 was Rs. 275/- per month. But these alleged rent receipts show the rate of rent to be Rs. 250/- per month. Therefore, these receipts are fabricated. Moreover, no revenue’ stamp has been affixed on these rent receipts. Had it been genuine and issued at the relevant time, there would have been revenue stamps affixed on these receipts. He further contended that the petitioner has fabricated these receipts but could not affix the revenue stamps of the relevant time. I am not going into the controversy about the genuineness or otherwise of these receipts. Admittedly this Court has ample power to allow the additional evidence at any stage, if is satisfied that the additional evidence was not available in spite of due diligence or that the same was not within the petitioner's knowledge. Even otherwise from the facts which have come on record it indicates that the portion given on tenancy is being used for residential purposes only and it is only a portion under the stairs which is not a part of the tenancy, is alleged to be used for storage of left over chicken.

7. For the reasons stated above I find no merits in this application, the same is accordingly rejected.

Appeal dismissed.

Trilochan Singh v. Usha Dhir .

Judgment Summary — Ms. Usha Mehra, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Trilochan Singh v. Usha Dhir .

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