JUDGMENT
R.H. Shukla, J.
1. Rule.
Ms. Archana Acharya, learned Advocate, appears and waives service of Rule on behalf of the opponents.
2. The present application for production of additional evidence under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 (the Code for short) has been filed by the appellant-original defendant on the ground set out in the Civil Application, inter alia, that the applicant’s father Jodhsingh Ahluwalia had two sons, the applicant and Gyansingh, and the father, who was doing the business, had taken the applicant and Gyansingh as partners in the partnership business carried on in the name and style of Jodhsingh Gulabsingh & Sons. The copy of the partnership deed is produced at Annexure-A. It has been contended that the suit house Gomti Kunj was purchased in the year 1973 by the applicant and Gyansingh, that is, two brothers. However, the consideration was paid by cheques drawn on the account of the partnership firm maintained with Punjab National Bank. Therefore, though the suit house was purchased by the applicant and his brother Gyansingh, the property belonged to the partnership firm. The copy of the sale deed is produced at Annexure-B. The partition suit was filed which was decreed and the present second appeal is filed against the decree for partition contending, inter alia, that the suit house purchased in the name of the applicant and his brother is, in fact, a partnership property as the consideration has been paid by the cheques drawn on account of the partnership firm. Therefore, it has been contended that this aspect has not been considered while decreeing the suit by the trial Court and confirming the decree by the Appellate Court, as there is nothing on record and hence, the present Civil Application has been filed for tendering the additional evidence, which has been mentioned in the list of documents, that is, two cheques drawn on Punjab National Bank from the account of the partnership firm, partnership deed and rent note. It is prayed that these documents may be permitted to be tendered as additional evidence by an appropriate order directing the District Court (lower Appellate Court) to frame necessary issue after allowing the aforesaid document as additional evidence and decide the same. It is also contended that for the purpose of deciding the present second appeal, the substantial question of law, as suggested and mentioned in the application, that whether the suit property can be ordered to be partitioned as joint property though the same is purchased by the funds of the partnership firm, may be framed.
3. Mr. S. M. Shah, learned Advocate appearing for the applicant, has submitted that though the suit property is purchased in the name of the applicant and his brother, the partnership firm has made the payment and the funds for purchase of the property are that of the partnership firm. Therefore, Mr. Shah submitted that as can be seen from the document, that is, agreement to sell which is produced with the Civil Application at Annexure-A, the endorsement referring to the same cheques is necessary for deciding the real controversy between the parties.
3.1 Mr. S. M. Shah, learned Advocate for the applicant, referred to Section 14 of the Indian Partnership Act, 1932 (the Partnership Act for short) and submitted that if the funds are coming from the partnership firm, then, it is deemed to be a partnership property. He emphasised the word acquired or purchased in support of his contention that if the property is acquired or purchased with the funds of the partnership firm, then, it will be deemed to be the property of the partnership firm.
3.2 Mr. Shah, learned Advocate for the applicant, also submitted that Order XLI, Rule 27 of the Code provides for production of additional evidence in the Appellate Court and referring to the provisions of Rule 27(1)(b), he emphasised that the words used are for any other substantial cause. He, therefore, strenuously submitted that it will be a substantial cause and if the documents produced by the applicants are permitted to be brought on record as additional evidence, then, it will have a bearing on deciding the controversy or the question of law in the second appeal.
3.3 Mr. Shah, learned Advocate for the applicant, also submitted that it is required to be considered and appreciated that the applicant was appearing as a party-in-person and was not represented by a lawyer. Therefore, it is the duty of the learned Presiding Officer or Judicial Officer administering the justice to see that the ultimate object of justice is served and the procedural laws do not come in the way of the parties in doing the justice.
Mr. Shah, learned Advocate for the applicant, has relied upon a judgment in the case of S. Bagirathi Ammal v. Palani Roman Catholic Mission reported in 2007 (13) SCALE 789.
4. Ms. Archana Acharya, learned Advocate appearing for the opponents-original plaintiffs, submitted that the suit filed for partition has been decreed and confirmed in the first Appellate Court and the present application for production of additional evidence is made to change the very nature or complexion of the dispute between the parties. It was submitted that production of additional evidence, as provided in Order XLI, Rule 27 of the Code, is subject to the fulfillment of the conditions laid down therein. For that purpose, she referred to Order XLI, Rule 27 and strenuously submitted that the first condition provided in Order XLI, Rule 27(1)(a) is that either it should have been refused to be admitted by the court from whose decree the appeal is preferred and secondly, the party seeking to produce the additional evidence has to establish that notwithstanding exercise of due diligence the evidence was not within the knowledge and therefore, could not be produced at the time when the decree was passed. Therefore, as these conditions are not fulfilled, at this belated stage, such an application for production of additional evidence may not be entertained. It was contended that such an application for production of additional evidence given at the belated stage is only to fill up the lacunae, which is not the purpose and object of Order XLI, Rule 27 of the Code. In support of this contention, Ms. Acharya referred to and relied upon a judgment of the Honourable Apex Court in the matter between The Municipal Corporation of Greater Bombay v. Lala Pancham and Ors. and emphasised the observations in paragraph 9 as under:
If the High Court, in making these observations, was referring to the provisions of Order XLI, Rule 27 of the Code of Civil Procedure it ought not to have overlooked the mandatory provisions of Clause (b) of Sub-rule (1) of Rule 27. No doubt, under Rule 27 the High Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the High Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case.
4.1 She has also relied upon a judgment of the Apex Court in the case of Sunder Lal and Son v. Bharat Handicrafts Private Ltd. , and submitted that the lacunae cannot be permitted to be filled up by at such a belated stage.
4.2 Ms. Acharya has also referred to a judgment in the case of State of Gujarat and Anr. v. Mahendrakumar Parshottambhai Desai (Decd.) by L. Rs. and submitted that Honourable Apex Court has considered the powers of the Appellate Court to allow additional evidence in light of Order XLI, Rule 27 and has specifically observed that powers of the Appellate Court to allow additional evidence when the Court requires the same ‘to enable it to pronounce the judgment’ Application by State as appellant to permit production of certain documents It was not a case ‘as if the additional evidence was required by the Court to enable it to pronounce the judgment’.
4.3 Ms. Acharya, referring to the agreement to sell at Annexure-A, submitted that this agreement to sell is in the name of the applicant and his brother, opponent herein, and it does not refer to the partnership firm, therefore, the document itself makes it clear that the suit property was purchased in the joint name of two brothers. However, by leading additional evidence, a new case is sought to be made out by the applicant that it was a property of the partnership firm, which was never the case and for the first time, a new case is now sought to be made out, which is not permissible. Moreover, it was submitted that the applicant has not clarified as to what is the position of the partnership firm. As can be seen from the partnership deed, Gyansingh expired in the year 1983 and Uttamsingh has also died. The partnership does not exist and therefore, as no such evidence or clarification as to the status of the partnership is made, merely by referring to the endorsement made that the payment has been made through the cheques drawn by the partnership firm by itself would not make the property as a partnership property.
4.4 Ms. Acharya also submitted that though it has been contended that the applicant has appeared as party-in-person and therefore, in the interest of justice, such document may be permitted. However, it transpires from the record that sufficient opportunity was given by the Courts below and yet if the applicant has proceeded as party-in-person, now such a plea cannot be raised. It was submitted that the issue, which is sought to be raised for the first time in the second appeal, cannot be permitted to be raised in the second appeal and more particularly, when such an issue has not been raised all alone since the suit has been filed in the year 1994. Therefore, Ms. Acharya, learned Advocate for the opponents, strenuously submitted that it would amount to changing the very nature of the suit and also adding totally a different and new ground for setting up a new case altogether.
5. Mr. S.M. Shah, learned Advocate for the applicant, in the rejoinder, submitted that no new case is sought to be made out and such an application for production of additional evidence would not cause any prejudice and therefore, it may be allowed.
6. In view of the rival submissions, it is required to be considered that whether the present application for production of additional evidence can be allowed at this belated stage or not. It is not in dispute that the original suit has been filed in the year 1994 and the suit has been decreed, which has been confirmed by the first Appellate Court, and no such contention has been raised that the suit property has been purchased with the funds of the partnership firm and therefore, it is deemed to be the partnership property.
7. A close look at Section 14 of the Partnership Act, would make it clear that it does not apply to the facts of the present case as it makes it very clear that subject to contract between the parties, the property of the firm would include all property and rights and interests in the property originally brought into the stock of the firm, or acquired or purchased by the firm. Therefore, this section would not come to the help of the applicant and the submission made by the learned Advocate, Mr. Shah, referring to the provisions of Section 14 of the Partnership Act, that the suit property can be deemed to be the partnership property as it was acquired with the funds of the partnership firm, cannot be readily accepted inasmuch as even if the cheques are given by the firm drawn from the account of the partnership firm, that by itself would not imply that it was purchased by the partnership firm because there may be a number of possibilities or reasons where instead of partner making the payment from his individual account, payment is made from the account of the firm. Moreover, Section 14 of the Partnership Act makes it very clear that unless contrary intention appears, the property and rights and interests in the property acquired with the money belonged to the firm, are deemed to have been acquired for the firm. Therefore, the intention has to be ascertained and in the facts of the case, the submission made by Mr. Shah, learned Advocate, that as the cheques were given from the account of the partnership firm, the property belonged to the partnership firm, cannot be accepted. Moreover, it is required to be appreciated that no such defence or contention has been raised all along and it has been sought to be taken at this belated stage in the second appeal for the first time. Further, the suit property if was the property of the firm, then, it could have been purchased in the name of the firm whereas the sale deed makes it clear that it has been purchased in the individual name of two brothers. Again the position or status of the partnership firm has not been explained or clarified.
8. In light of the above background, the provisions of Order XLI, Rule 27 of the Code are now required to be considered, which provides for production of additional evidence in the Appellate Court. There is no quarrel with the proposition that the High Court as an Appellate Court has the power to allow the additional evidence in a given case. However, this discretion is required to be exercised with due care and circumspection. A bare perusal of the provisions of Order XLI, Rule 27 makes it clear that normally, such additional evidence has not to be granted and provision is made as and by way of exception that additional evidence may be permitted subject to fulfillment of the conditions, as provided in Clauses (a) and (aa) of Sub-rule (1) of Rule 27. In other words, the scope is very limited for granting such an application. The language in which the entire provision has been couched makes it very clear that only in limited circumstances, such additional evidence may be permitted subject to fulfillment of the conditions laid down therein. Therefore, normally, such an additional evidence is not to be allowed as the language clearly provides shall not be entitled. However, it transpires that it has been permitted as and by way of exception, subject to the fulfillment of the conditions mentioned in Clauses (a), (aa) and (b) of Sub-rule (1) of Rule 27 of Order XLI of the Code. Clause (a) of Sub-rule (1) of Rule 27 provides that it can be permitted if it was refused to be admitted in evidence by the court from whose decree the appeal is preferred. Clause (aa) of Sub-rule (1) of Rule 27 provides that it has to be first established that notwithstanding the exercise of due diligence, the evidence was not within the knowledge or could not, after the exercise of due diligence, be produced. Therefore, it again imposes an obligation on the party seeking production of such additional evidence at the belated stage to establish that in spite of due diligence, it was not within the knowledge and after exercising such diligence, it could not be produced when decree was passed. In the facts of the present case, none of these conditions have been fulfilled. Further, Clause (b) of Sub-rule (1) of Rule 27 refers to other substantial cause, for which it can be permitted. However, substantial cause cannot be defined and it will depend upon the facts of the case and therefore, this discretion is though granted, it has to be first satisfied that there exists any other substantial cause for which this discretion can be exercised.
9. The reliance placed by Ms. Archana Acharya, learned Advocate for the opponents, referring to the judgment in the case of State of Gujarat and Anr. v. Mahendrakumar Parshottambhai Desai (Decd.) by L. Rs. , and emphasising the observation with regard to the powers of the Appellate Court to allow additional evidence, is required to be considered. Further, in the said judgment referring to the earlier judgment of the Apex Court in the case of The Municipal Corporation of Greater Bombay v. Lala Pancham and Ors. wherein it has been referred and quoted that, wherein this Court held that though the Appellate Court has the power to allow a document to be produced and a witness to be examined under Order XLI, Rule 27 of the Code of Civil Procedure, the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did not entitle the Appellate Court to let in fresh evidence at the appellate stage without even such evidence, it can pronounce the judgment in the case. It does not entitle the Appellate Court to let in fresh evidence only for purposes of pronouncement of judgment in a particular way.
10. Another aspect, which has been emphasised by Mr. Shah, learned Advocate, referring to Clause (b) of Sub-rule (1) of Rule 27, more particularly, the words other substantial cause, that the Court can, for doing the real justice between the parties or in the interest of justice, exercise the discretion and the rules of procedure should not come in the way of the ultimate object of the justice, also cannot be accepted. Though the submissions have been made, there is no quarrel that the rules or procedures are handmade so as to do justice between the parties and the ultimate object of the Court has to be doing the justice between the parties. However, a close look at the provisions of Clause (b) of Sub-rule (1) of Rule 27 also would make it clear that if the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce the judgment, or for any other substantial cause, it can exercise the discretion. In other words, again it is an enabling provision for the Court and it has to be produced if the Court requires that it should be produced to pronounce judgment or for any other substantial cause. The words used are substantial cause and in my opinion, the cause shown by the applicant is not a substantial cause which would require exercise of such discretion at such a belated stage.
11. A useful reference can be made to the observations of the Honourable Apex Court in the judgment in the case of Jayaramdas & Sons. v. Mirza Rafatullah Baig and Ors. , in paragraph 8 that:
It is true that additional evidence, whether oral or documentary, is not to be admitted in Appellate Court unless case for admission thereof is made out by reference to Clause (a) or (aa) of Sub-rule (1) of Rule 27 or unless the Appellate Court requires such evidence to enable it to pronounce judgment or for any other substantial cause within the meaning of Clause (b).
12. The reliance placed by Mr. S.M. Shah, learned Advocate for the applicant, upon a judgment in the case of S. Bagirathi Ammal v. Palani Roman Catholic Mission reported in 2007 (13) SCALE 789, is not applicable to the facts of the present case as it is relating to the scope of review and is in a given set of facts.
13. Another facet of the submission that the applicant was appearing as party-in-person and therefore, in the interest of justice, the additional evidence may be allowed, cannot be accepted inasmuch as the applicant had sufficient opportunity to engage the lawyer or take suitable advise at both the Courts below and if at all the party does not engage or take suitable advise, then, he cannot be permitted to raise such contention that he may be allowed to produce additional evidence at any stage merely because he had not engaged the lawyer in spite of sufficient opportunity and de hors the provisions of law, leniency has to be shown. That would not be the purpose and therefore, in my opinion, the present application deserves to be rejected.
14. In view of the above discussion, the present application hereby stands rejected. Rule is discharged. No costs.