Civil Revision Application No.385 of 2000

13th June, 2002

Petitioner Counsel: Mr. C. R. DALVI, Mr. S. M. GORWADKAR
Respondent Counsel: M/s. Bodhanwalla & Co.

Cases Cited:
Gurdev Singh Vs. Mehnga Ram, AIR 1997 SC 3572 [Para 4,12]
Yudhister Vs. Ashok Kumar, AIR 1987 SC 558 [Para 4,14]
Smt. Sarada Vs. Manikkoth Kombra Rajendran JT, 1996 (6) SC 1 [Para 4,13]
Mahavir Singh Vs. Naresh Chandra, 2001(1) ALL MR 782 (S.C.)=2000 AIR SCW 4000 [Para 9]
Indira B. Gokhale Vs. Union of India, AIR 1990 Bom. 98 [Para 14]

JUDGMENT

JUDGMENT :- Heard learned Advocates for the parties. Perused the records.

2. The petitioners are challenging the order dated 5-1-2000, passed by the III Additional District Judge, Pune, in Civil Appeal No.306 of 1999, allowing the application dated 20-11-1999 filed by the respondents under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (for short, "C.P.C."), in the said Appeal.

3. Few facts relevant for the decision are that, the petitioners filed Civil Suit No.705 of 1998 in the Court of Small Causes, Pune, for possession of the premises in occupation of the respondents on the ground that the petitioner-Trust requires the suit premises for expansion of the school building. The claim of the petitioners was contested by the respondents. After considering the evidence on record, the trial Court decreed the suit on 29-1-1999, and aggrieved by the same the respondents preferred Civil Appeal No.306 of 1999. During the pendency of the Appeal, the respondents filed the said application seeking leave of the lower Appellate Court to produce the additional evidence. The application was objected to by the petitioners. After hearing the parties, the lower Appellate Court allowed the same in the following terms:

"1. The appellants are allowed to produce additional evidence relating to the correspondence exchanged between the respondents and Godrej & Boyce Co. Limited, relating to the development of the suit property for commercial and educational purpose.

2. The appellants are permitted to furnish fresh plan submitted by the respondents to the Cantonment Board.

3. The appellants are permitted to produce the respondent's plea, appeals, brouchures calling for financial aid and assistance on behalf of the respondents for building a co-educational institution as stated in the appeal in the suit property (on strict proof according to Evidence Act such evidence would be permitted).

4. The evidence is to be recorded in this Court under Order 41 Rule 28 of C.P.C."

4. Learned Advocate for the petitioners submitted that the respondents had not disclosed the source from which the documents were obtained nor when the respondents acquired knowledge about the same. Hence the additional evidence has been allowed to fill the lacunae in the evidence. It was also contended that there was no case made out of due diligence on the part of the respondents in relation to production of the documents as was otherwise required in order to secure an order under Order 41 Rule 27(b) of C.P.C. While the suit was filed in the year 1993, the application for production of additional document was filed in the year 1999. On the other hand, placing reliance upon the decision of the Apex Court in the matter of Gurdev Singh & Ors. Vs. Mehnga Ram & Anr., reported in AIR 1997 SC 3572, the learned Advocate for the respondents submitted that the impugned order was not revisable and the remedy, if any, was available to the petitioners on disposal of the Appeal by the lower Appellate Court. It was further submitted that pursuant to denial on the part of the petitioners regarding the dealings with Godrej & Boyce Company and consequent to acquisition of knowledge and custody of the documents, the respondents were able to seek indulgence from the lower Appellate Court under Order 41 Rule 27 to place them on record. The documents being material for the defence of the respondents and being of great assistance to the Court to decide the matter in a just and fair manner, and there being no prejudice resulting to the petitioners on account of the respondents being allowed to produce the additional evidence, even on merits there is no case made out for interference in the impugned order. Reliance was sought to be placed in the decisions of the Apex Court in the matters of Yudhister Vs. Ashok Kumar, reported in AIR 1987 SC 558, and Smt. Sarada & Ors. Vs. Manikkoth Kombra Rajendran, reported in JT 1996 (6) SC 1. According to the learned Advocate for the respondents, there being no jurisdictional error committed by the Court below, the revision is liable to be rejected. At the same time, the learned Advocate for the respondents has fairly conceded that the application filed by the respondents could have been considered only under Order 41 Rule 27(b) of C.P.C. and not under (c).

5. The Court below while allowing the application filed by the respondents for production of additional evidence has observed that the respondents were not the parties to the documents sought to be produced and they were not within the knowledge of the respondents, and pursuant to the acquisition of knowledge about the existence of those documents, the respondents sought to produce the same before the Court. It has also been observed that "the person in whose knowledge the document sought to be produced has denied the existence of such document. Even though the document existed, the respondent No.1/plaintiffs (petitioners herein) denied the existence of the same." It has also been observed that the evidence on record shows that the respondents herein had no knowledge about the existence of the documents which they sought to produce, and those documents are necessary for a just decision in the case. Rejecting the contention regarding failure on the part of the respondents to disclose the source and the timing regarding the knowledge of the documents, the lower Appellate Court has observed that non-disclosure of the same cannot be a justification for refusal of leave to produce the additional evidence.

6. The provisions of law in relation to production of additional documents in Order 41 Rule 27 of C.P.C., as applicable to the State of Maharashtra, read thus :

"27(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

(b) the party seeking to adduce additional evidence satisfies the Appellate Court that such evidence, notwithstanding the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made, or

(c) 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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

7. Apparently, the question of entertaining an application under Order 41 Rule 27(c) arises when the Court itself requires a document to be produced or any witness to be examined to enable it to pronounce the judgment, or for any other substantial cause. That is not the case in hand. It is also not the case of the respondents that they had tried to produce the said document before the trial Court and it had refused to allow the production thereof. Hence the case cannot fall under clause (a).

8. It was at the instance of the respondents that the Court had exercised its power under Order 41 Rule 27 of C.P.C. and, therefore, the order has necessarily to be construed as to have been passed under sub-clause (b) thereof. Sub-clause (b) refers to cases where the parties seeking to adduce additional evidence satisfies the Appellate Court that such evidence, notwithstanding the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed. The point for consideration which arises, therefore, is whether the respondents had made out a case of due diligence for production of documents under Order 41 Rule 27(b) of C.P.C.

9. The lower Appellate Court had held that the evidence on record shows that the respondents had no knowledge about the existence of the documents, but at the same time, there is nothing on record nor any finding by the lower Appellate Court as regards the point of time when the respondents acquired knowledge about the documents in question. For the purpose of establishing due diligence on the part of the applicant in a matter for production of documents in terms of Order 41 Rule 27(b), it is necessary for the applicant to satisfy the Court that inspite of taking appropriate steps, the applicant could not produce such evidence prior to the date of the application seeking to produce such documents. Bare reading of the application filed by the respondents herein before the lower Appellate Court discloses statements like "...... the appellants have not got denoting that the respondents have negotiated ...... after looking into the now available additional evidence by way of documents ...... the appellants have now been able to lay their hand on the present evidence ....." etc. It does not disclose as to when the said additional evidence was made available to the respondents. In the absence of such information, apparently, there was no material on record to arrive at any finding regarding due diligence on the part of the respondents in the matter of production of the said additional evidence. Undoubtedly, the disclosure of the source from which the documents are obtained may not be necessary in each and every case as has been rightly observed by the lower Appellate Court. However, it can be a relevant factor in deciding the issue pertaining to due diligence. Whether the applicant could have acquired the knowledge about such document from the person from whose custody the same were obtained, much prior to filing of the application or not can be ascertained only after such source is disclosed. When the party itself chooses to be totally silent about such source as well as that of the timing of acquisition of knowledge about the existence of the documents, it cannot be said that the party had acted with due diligence in approaching the Court for the purpose of production of additional evidence. Due diligence on the part of the applicant seeking to produce additional evidence, and that too at the appellate stage, has to be established by disclosing the acts revealing the requisite and adequate attention and due and necessary care in procuring and/or attempting to procure the proposed additional evidence by such an applicant prior to the date of approaching the Court seeking leave to produce such additional evidence. It should not be forgotten that the Court is not bound to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the Court to be exercised judiciously and sparingly as has been ruled by the Apex Court in Mahavir Singh & Ors. Vs. Naresh Chandra & Anr., reported in 2000 AIR SCW 4000 : [2001(1) ALL MR 782 (S.C)].

10. It appears that the Court below was very much impressed by the contention of the respondents that they are not parties to the documents or that they are strangers to the documents. The point which is required to be considered is not whether the parties are stranger to the documents or not, but whether there was any opportunity to the party to produce the document prior to the date on which the party seeks to produce the same. In order to ascertain the same, again the date and source from which the documents were obtained assume great importance and both these factors are undisputedly not disclosed by the respondents.

11. The Court below, therefore, having proceeded to allow the application under Order 41 Rule 27(b) of C.P.C. in the absence of any material on record to give minimal credit of due diligence to the respondents in the matter of production of the documents, has clearly exercised its jurisdiction improperly and, therefore, warrants interference by this Court in its revisional jurisdiction.

12. The Apex Court in the case of Gurdev Singh Vs. Mehnga Ram (supra) has held that the High Court was not justified in interfering under section 115 of C.P.C. in the order passed by the lower Appellate Court in exercise of power under Order 41 Rule 27(b) of C.P.C. It is to be noted that though the reported judgment does not reproduce the provisions of Order 41 Rule 27(b), it is needless to say that the same relates to the provisions in the C.P.C. as they are applicable to the State of Punjab and Haryana and not to the State of Maharashtra. Undisputedly, clause (b) of Rule 27 of C.P.C., as applicable beyond the territory of the State of Maharashtra, reads thus :

"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".

Apparently, clause (b) is in pari materia with clause (c) of Rule 27, Order 41 of C.P.C., as is applicable in the State of Maharashtra. Being so, the judgment of the Apex Court in Gurdev Singh's case is not applicable to the matter in issue. In Gurdev Singh's case the order allowing the document was passed by the Appellate Court having found the examination of the hand-writing expert to be necessary for pronouncement of the judgment and/or for substantial cause in the matter. That is not the case in hand. No doubt the lower Appellate Court has observed at one place in the impugned order that "I see that the documents are necessary for the just decision in the case." However, apart from making this bare observation, the order does not disclose in what manner the documents are necessary for the just decision of the case. As already observed above, the impugned order has been passed in exercise of powers under Order 41 Rule 27(b), as applicable to the State of Maharashtra and more or less similar to clause (aa) of the said Rule, as applicable to the area otherwise than the State of Maharashtra. Considering the fact that the lower Appellate Court in Gurdev Singh's case had found the examination of the hand-writing expert to be necessary for the purpose of pronouncement of judgment or for any other substantial cause in the matter, and while holding that "the Appellate Court hearing the matter finally could exercise jurisdiction one way or the other under Order 41 Rule 27, specially clause (b)" and considering that interference under section 115 of C.P.C. in such orders would not be proper, the Apex Court held that the order of the High Court in exercise of its revisional jurisdiction was not sustainable.

13. The decision of the Apex Court in Smt. Sarada & Ors. (supra) was in the peculiar facts of the said case and the Apex Court had clearly observed that the documents which were sought to be produced as the additional evidence were not only relevant and material for decision but they were absolutely necessary to render fair justice to the parties. Undisputedly, the production of the documents in question in the matter in hand is stated to be in relation to the facts pleaded in para 14 of the written statement and those facts relate to negotiations by the petitioners with Godrej & Boyce Co. for the sale of the suit premises and the plot of land wherein the suit premises are situated. The documents are, therefore, stated to be in support of the defence put-forth by the respondents to the effect that on the one hand the petitioners are claiming requirement of the premises for their occupation whereas in reality of petitioners are interested in disposing of the premises in favour of the company named by the respondents. However, the Court below has clearly observed that the production of the said documents would show that the petitioners herein are in possession of excess space to give it to outsiders and therefore production of additional evidence is necessary and relevant. Apparently, the documents in question are not in relation to the defence sought to be raised by the respondents and therefore could not have been held to be relevant and material for decision on the point in issue between the parties. Being so, the decision of the Apex Court in Smt. Sarada's case is also of no help to the respondents to justify the impugned order.

14. Reference was made to the decision of the Apex Court in Yudhister's case (supra) while contending that no prejudice will result to the petitioners on account of the respondents being allowed to produce the additional evidence. In the said case the Apex Court had held that section 15 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 deals with the powers of the Appellate and the Revisional Authorities under the said Act. Sub-section (4) of the said section specifically provides that, if necessary, after further enquiry as it thinks fit either personally or through the Controller, the Appellate Authority shall decide the appeal, and therefore the Appellate Authority has been by express provision authorised to admit additional evidence. It cannot be disputed that the provisions of sub-section (4) of section 15 in the said Act are in no way in pari materia with the provisions of Order 41 Rule 27(b). The ruling of the Apex Court clearly reveals that the Appellate Authority under the said Act is specifically empowered, if necessary, to hold further enquiry as it thinks fit, either personally or through the Controller, and thereafter to decide the appeal and therefore the Appellate Authority has, by express provision, jurisdiction to admit additional evidence. That is not the case with the Civil Court while dealing with civil suit in terms of provisions of C.P.C. The powers of the Appellate Court under the C.P.C. in the matter of allowing the parties to lead additional evidence are specified under section 107 r/w Order 41 Rule 27 of C.P.C. Unless the case squarely falls within the parameters of the provisions of law contained in Order 41 Rule 27(b), in the absence of case of due diligence being made out by the party seeking to lead their evidence, it cannot be said that the decision in Yudhister's case can be of any help to the respondents to justify the impugned order. This Court in Indira B. Gokhale Vs. Union of India, reported in AIR 1990 Bombay 98 has held that Order 41 Rule 27 of C.P.C. 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.

15. Besides, the additional evidence to be allowed to be produced by the party should be disclosed with necessary clarity. The documents to be produced should be known to the parties and the Court before being allowed to be produced. The impugned order does not disclose the details of the alleged correspondence exchanged between the respondents and Godrej & Boyce Co. Ltd. relating to the development of the suit property, neither there is any reference to the date of the letters nor to the signatories of such letters. So also, the plan allowed to be produced is neither identified by the date of submission of the plan to the Cantonment Board nor does it disclose the property to which the said plan relates to. No document can be allowed as an additional evidence without proper description of the document. Learned Advocate for the respondents has also fairly stated that there are no pleadings nor any defence as regards the alleged efforts on the part of the petitioners to seek financial assistance from the public for developing the new building in the suit property. Being so, the document allowed under serial No.3 can be of no relevancy to the matter in issue.

16. Neither the case of due diligence is made out for the purpose of the production of the additional evidence in terms of Order 41 Rule 27(b) of C.P.C., nor the documents sought to be produced are described with sufficient details regarding such documents. Some of those documents are undisputedly beyond the scope of pleadings of the respondents.

17. In the result, therefore, the revision application succeeds. The impugned order is set aside. The application filed by the respondents for production of additional evidence before the lower Appellate Court is dismissed. Rule is made absolute in above terms with no order as to costs.

18. On oral request by the learned Advocate for the respondents, the interim order granted during the pendency of the revision application shall continue to be in force for a period of ten weeks from today.

Certified copy expedited.

Revision application allowed.