JUDGMENT
V.S. Aggarwal, J.
1. Order 41 Rule 27 of the Code of Civil Procedure, for short “the Code” reads as under:-
“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.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
2. It is this provision which is being pressed into service by the learned Appellate Authority and the order assailed by the Petitioner. A bare perusal of the same indicates that the parties shall not be allowed to adduce additional evidence except on the conditions laid down in Order 41 Rule 27 of the Code. Additional evidence can be allowed when the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or the party seeking to produce additional evidence establishes that such evidence was not within his knowledge and he could not produce it with due diligence in the trial Court; and; lastly, the Court may require any document to be produced or any witness to be examined to enable it to pronounce the judgment.
3. Some of the relevant facts can well be mentioned to precipitate the controversy raised.
4. Respondent Gian Kaur is the owner/landlady of the demises premises. The petitioner is a tenant therein. The respondent had filed a petition for eviction against the petitioner with respect to the property in question. Amongst others, one of the grounds of eviction taken up was that she bona fide require the property for her personal use. Certain witnesses were examined during the trial but she did not examine herself. The learned Rent Controller, Chandigarh, had dismissed the petition for eviction. The learned Rent Controller took note of the fact that the respondent-landlady had not appeared as a witness to make a statement on oath in support of her claim.
5. The respondent had preferred an appeal before the Appellate Authority, Chandigarh. During the pendency of the appeal, an application was filed seeking permission to produce additional evidence it was prayed that her husband had died and she was under a great shock. She could not appear in the witness-box and thus may be permitted to make her own statement on oath. Needless to state, that application was contested.
6. The learned Appellate Authority vide the impugned order allowed the application on payment of Rs. 2,000/- as costs. Aggrieved by the same, present revision petition has been filed.
7. Learned counsel for the petitioner assailed the order passed by the learned Appellate Authority on the grounds (i) that the examination of the evidence is necessary before additional evidence could be permitted which has not been done; (ii) it is not simply the pleasure of the Court but additional evidence can only be allowed in terms of Order 47 Rule 27 of the Code; (iii) evidence as such could have been produced during the trial; and (iv) at the appellate stage lacuna could not be filled up.
8. On appraisal of the facts, it is patent that in the peculiar facts, the impugned order passed by the Appellate Authority require no interference. It must be conceded that there is little confusion and the order made is not happily worded. But that by itself does not justify interference.
9. Strong reliance was placed on the decision of the Supreme Court in the case of Arjan Singh v. Kartar Singh and Ors., A.I.R. 1951 Supreme Court 193. Supreme Court held that the discretion given to the Appellate Court under Order 41 Rule 27 of the Code to receive and admit additional evidence is not an arbitrary one. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion. It can only be done on consideration of evidence on the record. In paragraph 8 of the judgment, the Supreme Court observed as under-
“In the present case, there is nothing to show that there was any lacuna or gap which had to be filled up and that the appellate Ct. felt the need for the omission being supplied so that it could pronounce a judgment; to put it the other way around, it does not appear and it was not stated, that the Dist. J. felt himself unable to come to a decision without copies of the settlement registers that were sought to be put in before him for the first time. On the other hand, the Dist. J. made up his mind to admit the certified copies of the kami beshi & muntakhib asami-war registers even before he heard the appeal. The order allowing the applt. to call the additional evidence is dated 17.3.1942. The appeal was heard on 24.4.1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the Ct. required to be filled up for pronouncing its judgment. In the circumstances, the learned Judges of the H.C. were right in holding that the Dist. J. was not justified in admitting this evidence under Order 41 Rule 27.”
10. Same view prevailed with this Court in the case of Maghar Singh and Anr. v. Kewal Ram, 1972 P.LJ. 323. While relying on the decision of the Supreme Court in Arjan Singh’s case (supra), this Court in paragraph 8 of the judgment held as under: –
“As it is, in the present case, the appellate Court has categorically stated that it did not require the additional evidence to enable it to pronounce the judgment. The mere fact, that the documents sought to be put on the record are genuine, is no ground for allowing additional evidence without even looking through the evidence already on the record.”
11. Similarly, in the case of Chaman Lal and Anr. v. The State of Punjab, (1974)76 P.L.R. 8 (S.N.); 1974 Revenue Law Reporter 10, this Court held that production of additional evidence can only be permitted when the Court examined the evidence already existing on the record.
12. In the present case in hand, it cannot be held that said evidence on record has not been considered. In fact, one is constraint to observe that the said evidence had, indeed, been considered, it is not always necessary that while considering the said evidence, specific opinion should be formulated. In fact, a perusal of the order itself reveals whether the said evidence has been considered or not. If specific findings were to be recorded, that would be embarrassing to either party but the tenor of the order always makes the position clear, it is only on appraisal of evidence and consideration of the same that the Appellate Authority felt that the statement of the respondent should be recorded. Therefore, this particular contention of the learned Counsel is of little avail.
13. As regards the contention that it is not the pleasure of the Appellate Authority, indeed, in principle there is no controversy. It is not a matter of routine that additional evidence can be permitted. In the case of Sucha Singh v. Gurnam Singh, 1972 Revenue Law Reporter, 456, this Court concluded that this is not a matter of routine but the case must fall within the strict provisions of Order 41 Rule 27 of the Code. But as would be noticed hereinafter, it cannot be termed in the present case that it was simply at the pleasure of the Appellate Authority. As pointed above, if the Appellate Authority finds that evidence is necessary to pronounce the judgment, additional evidence can be recorded. That seemingly prevailed with the Appellate Authority. It is true that in so many words such fact has not been recorded but the Appellate Authority relying upon the past precedents proceeded to allow additional evidence. Omission of a particular line or a paragraph will not permit this court to undo what has been done, particularly when one read the reasons for allowing the same.
14. The contention further, as pointed out above, was that additional evidence could be produced in the trial Court with due diligence and that has not been done. Reliance was placed on the decision rendered Jay this court in the case of Municipal Committee, Sonepat v. Ram Ditta Mal, 1983 Haryana Rent Reporter, 331 and in the case of Buta Singh and Anr. v. Jota Singh, (1990-2)98 P.L.R. 510. However, these particular decisions are confined to the controversy when the case falls under Order 41 Rule 27(1 )(aa) of the Code. If the Court requires the same for the pronouncement of the judgment as in the present case, in that even the cited decisions will have little role to play. Therefore, the said contention as such must fail.
15. The last submission in this regard pertained to the fact that the Supreme Court in the case of State of U.P. v. Manbodhan Lal Srivastava, A.I.R. 1957 S.C. 912, has held that the lacuna cannot be allowed to be filled up. However, the scope of Order 41 Rule 27 of the Code has been widened. Supreme Court in the case of Jaipur Development Authority v. Smt. Kailashwati Devi, (1997-3)117 P.LR. 880 (S.C.), considered this aspect and in paragraph 6 of the judgment held as under:-
“The intention of the sub-rule, in our view, is that a party who, for the reasons mentioned in the sub-clause, was unable to produce the evidence in the trial Courts, should be enabled to produce the same in the appellate Court. The sub-rule mentions the conditions which must be complied with by the party producing the additional evidence, namely, 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: in the trial Court. It is not one of the conditions that the party seeking to introduce “additional” evidence must have also been one who has led some evidence in the trial Court. Such view amounts to introducing an additional condition not contemplated by the sub-rule. No distinction was intended by the sub-rule between a party who has produced some evidence in the trial Court and one who has adduced no evidence in the trial Court All that is required is that the conditions mentioned in the body of the sub-rule must be proved to exist. It is not permissible to restrict the sub-clause (aa) for the benefit of only those who have adduced some evidence in the trial Court.”
16. The present case clearly falls within the ambit mentioned above. Moreso, as pointed out above, seemingly the Appellate Authority felt that additional evidence is required for the pronouncement of the judgment. For allowing the additional evidence, the Appellate Authority relied on the decision of the Supreme Court in the case of Sabha Singh v. Jit Singh, 1996(2) C.C.C. 339. The discretion, therefore, in this regard requires no interference.
17. For these reasons, the revision petition being without merit must fail and is accordingly dismissed in limine.