IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. C. Rev. 137 of 2007 Kartar Chand and anr petitioners Sheelo Devi and ors respondents !Mr. Bachan Lal Kalgotra, Advocate ^Mr. R.P. Sharma, Advocates Mr. JUSTICE J. P. SINGH, JUDGE Date : 04/12/2008 :J U D G M E N T:
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Petitioners-plaintiffs have filed this Revision Petition questioning
Additional District Judge, Jammu’s order of August 16, 2007 dismissing their
application under Order 41 Rule 27 of the Code of Civil Procedure whereby
they had sought permission for one of the appellants to appear as witness in
the case which, according to them, they could not do because of the
inexperience and inadvertence of the counsel they had engaged in the trial
court.
Petitioners’ learned counsel, Shri Bachan Lal Kalgotra, submits that
being rustic villagers, the petitioners had gone by the advice of their counsel
in not appearing as their own witness during the trial of the case because the
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counsel was under a misconception that the statement which one of them had
made in the suit when the respondents had been set ex-parte would survive for
consideration by the court despite lifting of ex-parte proceedings against the
respondents, And that interest of justice would warrant providing an
opportunity to the appellants to substantiate their claim to the property in
dispute by appearing as a witness in the case.
Per contra, Shri R. P. Sharma, submitted that petitioners had taken
numerous opportunities to produce their evidence in the case and their nonappearance,
being intentional, no further opportunity could be allowed to
them to fill up the lacunae they had intentionally left in the case, and
additionally because the provisions of Order 41 Rule 27 of the Code of Civil
Procedure may not permit allowance of additional evidence.
I have considered the submissions made at the Bar.
Powers of the Appellate Court to pass orders for production of
documents or allowance of other evidence, is circumscribed for its exercise
only in three situations contemplated by Order 41 Rule 27 of the Code of
Civil Procedure. For exercising its jurisdiction under Order 41 Rule 27 of
CPC, the Appellate Court is thus required to arrive at a finding about the
existence of one or the other contingencies contemplated by three clauses of
Order 41 Rule 27 CPC.
Conditions precedent for application of the provisions of Order 41 Rule
27 (1) (a) and (1) (aa) are, however, different from those of Order 41 Rule 27
(1) (b) CPC. In cases where provisions of Order 41 Rule 27 (a) CPC are
invoked, the appellant seeking production of additional evidence will have to
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satisfy the Court that the Court from whose decree the appeal has been
preferred had refused to admit evidence which should have been admitted. In
those cases where the provisions of Order 41 Rule 27 (1) (aa) CPC are
invoked, the appellant seeking permission to produce additional evidence will
have to establish that notwithstanding exercise of due diligence, the evidence
which he wants to adduce, was not within his knowledge or could not, after
exercise of due diligence be produced by him during the currency of the suit.
On the other hand, when resort is contemplated to the provisions of
Order 41 Rule 27 (1) (b) of CPC, the Appellate Court is required under law to
consider the entire evidence on record and thereafter come to an independent
finding as to whether or not any document which is sought to be produced by
the appellant or any witness(s) proposed to be examined by the appellant, was
necessary for the Appellate Court, to pronounce judgment. Power under
Order 41 Rule 27 (b) of CPC may also be exercised by the Appellate Court in
case it finds any other substantial cause, to permit production of additional
evidence.
Perusal of petitioners’ application indicates that the case projected by
the petitioners in their application was not covered by the contingencies
contemplated either by Rule 27 (1) (a) or Rule 27 (1) (aa) of Order 41 CPC.
The case which the petitioners had set up in their application was rather based
on one of the grounds which they had projected in their memo of appeal
which, for facility of reference reproduced hereunder:-
“…..The facts on record reveal that the plaintiffs’ intention
was never to avoid witness box. The fact of the matter is that
one of the plaintiffs had appeared as a witness and his
statement was recorded when the case was proceeding exparte.
And then the ex-parte proceedings were set aside and
the plaintiffs proceeded further to lead evidence in the case
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and inadvertently the counsel for the plaintiffs in the
muffacil did not produce any plaintiff against as witness
under the bonafide and honest impression that one of the
plaintiff has appeared, of course, without visualizing the
legal technicalities that the statement of a witness examined
during separate proceedings may or may not be read in
evidence.
However, the plaintiffs are ready and prepared to appear in
the case to face cross-examination of the
defendant/respondents if the Hon’ble Court provides an
opportunity to the appellants/plaintiffs to be heard. And as
appellate court has unfettered powers under rule 27 order
41 of the rules and particularly under section 151 CPC to
permit a party to an appeal to lead additional evidence.
However, the objection that the appellants have not
appeared as their own witnesses in the case was never
raised at any stage by the respondent’s counsel, not even
during final arguments. Had the counsel for respondents
raised the objection at that stage the appellants certainly
would have applied to the learned trial court under section
151 CPC to permit the appellants or any one of them to
again appear in the witness box. The learned trial Judge has
taken the appellants by surprise by invoking this almost
sole ground to dismiss the case of the plaintiffs and thus
punishing the plaintiffs without any dereliction or negligence
on their part.”
As the case projected by the petitioners seeking permission to lead
additional evidence was infact one of the grounds which they had projected in
the memo of appeal so the right course available to the Ist Appellate Court
was to consider petitioners’ application at the time of consideration of the
appeal itself for final disposal. This is so because it is only at the stage of
consideration of the appeal that the Appellate Court would be in a better
position to dwell on the plea which the petitioners had projected seeking
permission to lead additional evidence. Such permission could be considered
for its grant or refusal only if the Appellate Court had required any witness to
be examined to enable it to pronounce judgment in the case or if it otherwise
found, any substantial cause to have been made out by the petitioners for
allowing them to appear as their own witness in the case.
Petitioners-plaintiffs’ application has been rejected by learned
Additional District Judge, Jammu on the grounds that Order 41 Rule 27 CPC
would not permit filling up of any lacunae or gap in the evidence which the
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petitioners, by omitting to appear as their own witness, had left in the case
and that the application was belated because of its having been filed after
about two years of filing of the appeal.
In view of the above discussion, it is thus apparent that the Ist
Appellate Court had erred in rejecting petitioners’ application on the ground
that it had been filed belatedly. This is so because the plea which the
petitioners had projected for the second time in the application under Order
41 Rule 27 CPC stood already raised by them in so many words in their
memo of appeal. Rejection of petitioners’ application on the ground of delay
cannot, thus, be justified.
As appellants’ application was not covered by the contingencies
contemplated by Order 41 Rule 27 (1) (a) and (aa) so the Appellate Court was
required to consider it at the time when it had to take up the appeal for
hearing on its merits. It has committed an error apparent on the face of record
in dismissing petitioners’ application without going through the merits of the
controversy raised in the suit. The order passed by the Ist Appellate Court
cannot, therefore, sustain.
For all what has been said above, allowing this Revision Petition,
Additional District Judge, Jammu’s order of August 16, 2007 rejecting
petitioners’ application is, accordingly, set aside and it is directed that the Ist
Appellate Court shall take up the petitioners’ appeal for consideration along
with their application seeking production of additional evidence and pass
appropriate orders in view of the provisions of Order 41 Rule 27 of the Code
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of Civil Procedure as may be warranted under law after hearing the parties on
the appeal and the application.
( J. P. Singh )
Judge
JAMMU:
04.12.2008
TILAK, Secy.
