Or.41, rule 27 of C.P.C. - again a petition for production of documents Pending appeal ( pending trial produced , trial court dismissed and High court confirmed the same ) - allowed - High court confirmed the same - apex court held that As we find, it is extremely difficult to put the case
under Order XLI Rule 27 (1)(b) to suggest that it is necessary to take the documents on record in the interest of justice and, additionally, when the said documents were rejected to be taken on record by the trial court and the said rejection had been affirmed by the High Court.
We are conscious, the spectrum that can be covered under Order XLI Rule 27 (1)(b) may be in a
broader one but in certain cases judicial propriety would be an impediment and the present case is one where the judicial propriety comes on the way. Therefore, we are of the considered opinion that the appellate court has erred in taking recourse to the said clause and allowing the application for taking additional evidence and similarly the High Court has committed illegality opining that the order passed by the lower appellate court does not suffer from any infirmity.=
Coming to the case at hand, the documents were sought to be introduced at
the stage of hearing of the suit.
Numerous opportunities were granted to
file the documents, but the plaintiffs chose not to avail of the same.
Therefore, the said documents were not accepted by the trial court.
A
civil revision was filed and dealt with on merits.
Same set of documents
were sought to be introduced before the appellate court as the additional
evidence.
The said documents are not such documents which are clinching and
really essential for pronouncement of the judgment or for that matter any
other substantial cause.
There may be cases where on acceptance of public
documents the decision on the lis in question would subserve cause of
justice and avoid miscarriage of justice.
In the instant case, the
documents which are sought to be filed before the appellate court as
additional evidence are bank accounts which really are not clinching to put
the controversy.
As we find, it is extremely difficult to put the case
under Order XLI Rule 27 (1)(b) to suggest that it is necessary to take the
documents on record in the interest of justice and, additionally, when the
said documents were rejected to be taken on record by the trial court and
the said rejection had been affirmed by the High Court.
We are conscious,
the spectrum that can be covered under Order XLI Rule 27 (1)(b) may be in a
broader one but in certain cases judicial propriety would be an impediment
and the present case is one where the judicial propriety comes on the way.
Therefore, we are of the considered opinion that the appellate court has
erred in taking recourse to the said clause and allowing the application
for taking additional evidence and similarly the High Court has committed
illegality opining that the order passed by the lower appellate court does
not suffer from any infirmity.
Be it stated, the learned counsel has referred to certain authorities which
pertain to scope of Order XLI Rule 27 of the CPC, but they are
distinguishable on facts as they relate to due diligency, relevancy of
documents and the requisite approach. We have already opined that the
documents are not so clinching to be accepted as additional evidence in
exercise of jurisdiction under Order XLI Rule 27(1)(b), for the judicial
propriety becomes an impediment and, therefore, there is no necessity to
advert to the said authorities.
In view of the aforesaid analysis, the appeal is allowed and the orders
passed by the lower appellate court and that of the High Court are set
aside. There shall be no order as to costs.
2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41854
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8283 OF 2014
(Arising out of S.L.P. (C) No. 18676 of 2012)
Surjit Singh & Ors. ... Appellants
Versus
Gurwant Kaur & Ors. ...Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
The respondent No. 1 instituted Civil Suit No. 78 of 2003 in the Court of
the learned Additional Civil Judge (Senior Division), Patti, district Taran
Taran, for specific performance of contract entered into between him and
the appellant No. 1, the predecessor-in-interest of appellants Nos. 2 to 4
and the respondent No. 2 for sale of land admeasuring 28 K 12 M bearing
khata Khatoni 330/1254, 1256, 331/1261 and Killa Nos. 34/25 (712), 40/1/1
(4-15), 10/2 min (0-8), 41/5 min (2-8) 6/1 (7-5) 15/1 (2-16), 34/162 (3-8),
situated in village Talwandi Sobha Singh Tehsil Patti District Amritsar as
per Jamabandi for the year 1997-98 at the rate of Rs.3,22,500/- per Killa
which included all rights attached to the land.
It was averred in the plaint that the defendant in the Civil suit had
received Rs.50,000/- on 7.2.2003 and a further sum of Rs. 50,000/- on
25.2.2003 as against the determined price of 3,22,500/- per killa as per
the agreement. As stipulated in the agreement the balance amount was to be
paid on 3.6.2013 at the time of execution and registration of sale deed
before the sub Registrar, Patti. It was also recited in the agreement that
the suit land was already mortgaged with the State Bank of Patiala and the
defendants should clear the loan before execution of the sale deed in
favour of plaintiff failing which the deposited amount would be forfeited.
The plaintiff, as averred in the plaint, went to the office of the sub-
Registrar but the defendants did not turn up. As there was breach of
contract by the defendants, for they failed to execute and register the
sale deed in favour of the plaintiff, he initiated the civil action for
specific performance of contract or in the alternative for recovery of
Rs.2,00,000/- as compensation.
The defendants entered contest and filed the written statement contending,
inter alia, that the suit was not maintainable; that the plaintiff was not
ready with the balance amount; that the stand put forth by the plaintiff
that he had come to Tehsil complex on 3.6.2003 along with the balance sale
consideration and the attesting witnesses was farther from the truth, for
the original defendants remained present in the office of Sub Registrar,
Patti from 9.00 a.m. to 5.00 p.m. but the plaintiff did not turn up as he
was not ready with the balance consideration; and that the defendants moved
an application before the concerned Sub-Registrar for marking their
presence and gave an affidavit which was duly signed by the Sub-Registrar.
The further stand of the defendants was that the plaintiff and her
relatives tried to take forcible possession of the property in dispute as a
consequence of which FIR No. 97 dated 9.6.2003 for offences punishable
under Sections 307, 326, 323, 148 and 149 of the Indian Penal Code and
Section 25 of the Arms Act was registered.
The learned trial Judge framed as many as six issues, recorded the evidence
and, eventually, dismissed the suit filed by the plaintiff. It is apt to
mention here that during the pendency of the suit the plaintiff had filed
an application under Section 151 of the Code of Civil Procedure (CPC) for
filing of additional documents with the prayer that the said documents
should be accepted as additional evidence. It was stated in the
application that in her evidence she had already deposed that she had got
Rs.9,00,000/- from her husband’s brother, Gian Singh, and he was having
Rs.1,00,000/- in her account bearing No. 1313. It was also averred that
she was under the impression that her father was prosecuting the case and
had filed the statement of accounts bearing No. 1-29 of Gian Singh and of
plaintiff’s bearing No. SB/17274 but inadvertently her father could not
produce the said statement of accounts and pass books, and she had no
knowledge about the same. In the said backdrop a prayer was made for
acceptance of the documents.
The learned trial Judge, after perusing the material on record, passed the
following order: -
“A perusal of file shows that the suit was filed on 23.7.2003 and issues
were framed on 7.1.2004. Since then, plaintiff availed 14 opportunities to
produce and conclude her evidence and ultimately closed it at her own on
11.5.05 and thereafter the case was fixed for defendant evidence.
Defendant also took 19 opportunities to conclude their evidence and
ultimately closed the same on 19.4.06 and after that the case was fixed for
rebuttal evidence of plaintiff, for which plaintiff took 8 opportunities
and then he came up with the present application. It is clear from the
above facts that it was not mere inadvertence that these copies could not
be produced by the plaintiff, rather the plaintiff did not act diligently
herself. If the applicant was diligent, the application should have come
on record, much earlier and not now and it appears only an attempt to seek
time and fill up lacuna. Accordingly the application is dismissed.”
The aforesaid order was assailed in Civil Revision No. 6014 of 2008 before
the High Court and the learned single Judge, after perusing the order
passed by the learned trial Judge, dismissed the civil revision by
ascribing the following reasons: -
“Keeping in view the order, referred to above, this court is of the view
that prayer made by the learned counsel for the grant of one opportunity to
the petitioner to produce copies of statements of accounts by way of
additional evidence cannot at all be accepted since number of opportunities
were availed of by the plaintiff but failed to produce copies of statement
of account in support of her case. Even otherwise, case is at the fag end
stage and now this application for producing the afore referred documents
in support of her case has been filed just to delay the proceedings of the
case. That apart, the aforementioned copies of statement of accounts were
very much in the knowledge of the plaintiff-petitioner and if the
petitioner had been vigilant, she must have produced the same at
appropriate stage. Approach of the learned trial court in dismissing the
application for producing copies of statement of account by way of
additional evidence cannot at all be said to be erroneous, which may
warrant interference by this court.”
Thereafter the hearing of the suit proceeded and, as has been stated
earlier, it was dismissed. Being grieved by the judgment and decree passed
by the learned trial Judge, the plaintiff preferred an appeal before the
Additional District Judge, Taran Taran. During the pendency of the appeal,
the plaintiff-appellant filed an application under Order XLI Rule 27 of CPC
for production of pass books and the statement of bank accounts as
additional evidence. The said application was resisted on many a ground.
The learned Additional District Judge came to hold that the evidence being
in nature of documentary evidence and being admissible, it was appropriate
to allow the same. The lower appellate court also observed that the
defendants-respondents would have the opportunity to rebut the same. Being
of this view he allowed the application subject to payment of Rs.1,000/- as
costs.
The said order was assailed in Civil Revision No. 5850 of 2011 and the
learned single Judge by order dated 3.5.2012, declined to interfere on the
ground that the lower appellate court had fairly appreciated the provisions
in law and correctly opined that the documents were required for just
decisions of the case. That apart, the learned single Judge observed that
in a suit for specific performance of contract the ready and willingness of
the plaintiff to perform her part of the contract, being an important
factor, by allowing the application the lower appellate court had not
committed any legal infirmity. The said order is under assail in the
present appeal by special leave.
Calling in question the legal substantiality of the order, it is urged by
Ms. Manjula Gupta, learned counsel appearing for the appellants, that once
the application for additional evidence was rejected by the learned trial
Judge and the same got the stamp of approval by the High Court in civil
revision on being assailed, the said order operates as res judicata and,
therefore, the lower appellate court could not have entertained the
application. Learned counsel would further submit that the learned first
appellate Judge has fallen into grave error not only in exercise of his
jurisdiction inasmuch as the plea relating to ready and willingness was
disbelieved by the trial court on the basis of material on record and the
adroit made by the plaintiffs/ appellants at the appellate stage to produce
books of accounts to show that they had money in their accounts, would not
come within the ambit and sweep to make out a case under Order XLI Rule 27
of CPC. That apart, submits learned counsel for the appellants, the
ingredients which are required to be satisfied for getting the benefit
under the said provision, were not at all satisfied and hence, the impugned
order is absolutely vulnerable. In support of her submissions, she has
commended us to the decisions in Arjun Singh v. Mohindra Kumar and
others[1], Kunhayammed and others v. State of Kerala and another[2] and
Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapet[3].
Mr. Vikas Mahajan, learned counsel appearing for the respondents, per
contra, would contend that the first application was filed under Section
151 of CPC for filing additional documents before the trial court and it
has no relevance when an application for filing of additional evidence
under Order XLI Rule 27 of the CPC is filed before the appellate court. It
is urged by him that acceptance of the said documents would subserve the
cause of justice and when the appellate court and the High Court have
accepted the stand of the respondents in proper perspective, the impugned
orders do not warrant any interference by this Court. To bolster the said
submission he has relied on the decisions in K. Venkataramiah v. A.
Seetharama Reddy and others[4], Syed Abdul Khader v. Rami Reddy and
others[5], Billa Jagan Mohan Reddy and another v. Billa Sanjeeva Reddy and
others[6] and Wadi v. Amilal and others[7].
First, we shall deal with the application that was filed by the plaintiffs
before the learned trial Judge. It was an application under Section 151 of
CPC for filing of additional documents and the learned trial Judge passed
an order refusing to take the additional documents on record. The said
order having assailed before the High Court in the civil revision, the High
Court had declined to interfere. The question that arises for
consideration is when such an order passed by the learned trial Judge had
been affirmed by the High Court in exercise of supervisory jurisdiction,
would it still be permissible from the view of propriety on the part of the
first appellate court to accept the documents in exercise of power under
Order XLI Rule 27 of the CPC and, if not, was it not the duty of the High
Court to lancinate it.
In this context, we may refer with profit to the authority in Satyadhan
Ghosal and others v. Smt. Deorajin Debi and another[8]. It was a case
where the landlords had obtained a decree for ejectment against the
tenants. After the decree was made, the Calcutta Thika Tenancy Act, 1949
came into force. The decree had not yet been put for execution. The
tenants preferred an application under Section 28 of the said Act for
rescission of the decree passed against them. The said application was
resisted by the landlords who were the decree-holders. The learned Munsif
rejected the application holding that the tenants were Thika tenants under
the Thika Tenancy Act. Against the said order the tenants moved the High
Court of Calcutta under Section 115 of CPC. By the time the revision
application was taken up for hearing, the Calcutta Thika Tenancy Act was
amended in 1953. The amended Act omitted Section 28 of the original Act.
The High Court considered the effect of the amendment made in the Act and
opined that in view of the amended definition of the term “Thika tenant”
and the evidence brought on record it can be held that the tenants were
Thika tenants. Being of this view, the High Court allowed the revision and
set aside the order of the learned Munsif whereby he had dismissed the
application of the tenants under Section 28 of the Act. After setting
aside the order, the High Court remanded the matter to the court of learned
Munsif for disposal in accordance with law. After remit the learned Munsif
rescinded the decree. The said order was assailed under Section 115 of CPC
which was rejected by the High Court. In revision, a contention was
advanced that Section 28 of the Act was not applicable. The Learned Judge
who heard the matter opined that the question as between the parties was
res judicata. Against the said order an appeal was preferred before this
Court on the strength of special leave. In that context, the Court ruled
thus: -
“The principle of res judicata is based on the need of giving a finality to
judicial decisions. What it says is that once a res is judicata, it shall
not be adjudged again. Primarily it applies as between past litigation and
future litigation. When a matter – whether on a question of fact or a
question of law – has been decided between two parties in one suit or
proceeding and the decision is final, either because no appeal was taken to
a higher court or because the appeal was dismissed, or no appeal lies,
neither party will be allowed in a future suit or proceeding between the
same parties to canvass the matter gain. This principle of res judicata is
embodied in relation to suits in S. 11 of the Code of Civil Procedure; but
even where S. 11 does not apply, the principle of res judicata has been
applied by courts for the purpose of achieving finality in litigation. The
result of this is that the original court as well as any higher court must
in any future litigation proceed on the basis that the previous decision
was correct.
After so stating the Court laid down the principle of the
applicability of the doctrine of res judicata between two stages of the
suit: -
“The principle of res judicata applies also as between two stages in the
same litigation to this extent that a court, whether the trial court or a
higher court having at an earlier stage decided a matter in one way will
not allow the parties to re-agitate the matter again at a subsequent stage
of the same proceedings. Does this however mean that because at an earlier
stage of the litigation a court has decided an interlocutory matter in one
way and no appeal has been taken therefrom or no appeal did lie, a higher
court cannot at a later stage of the same litigation consider the matter
again?”
After posing the said question the Court examined the Privy Council
decisions in Moheshur Singh v. Bengal Government[9], Forbes v. Ameeroonissa
Begum[10] and Sheonath v. Ramnath[11] and accepted the observations made by
the Privy Council in Moheshur Singh (supra) wherein it has been held thus:
-
“We are of opinion that this objection cannot be sustained. We are not
aware of any law or regulation prevailing in India which renders it
imperative upon the suitor to appeal from every interlocutory order by
which he may conceive himself aggrieved, under the penalty, if he does not
so do, of forfeiting for ever the benefit of the consideration of the
appellate court. No authority or precedent has been cited in support of
such a proposition, and we cannot conceive that anything would be more
detrimental to the expeditious administration of justice than the
establishment of a rule which would impose upon the suitor the necessity of
so appealing; whereby on the one hand he might be harassed with endless
expense and delay, and on the other inflict upon his opponent similar
calamities. We believe there have been very many cases before this
Tribunal in which their Lordships have deemed it to be their duty to
correct erroneous interlocutory orders, though not brought under their
consideration until the whole cause had been decided, and brought hither by
appeal for adjudication.”
Approving the said principle this Court opined that the appellants in
that case were not precluded from raising the question that Section 28 of
the original Thika Tenancy Act was not available to the tenants after
coming into force of Thika Tenancy (Amendment) Act, 1953 as it was an
appeal by special leave to the superior court.
The aforesaid decision was approved in Arjun Singh (supra) wherein the
Court ruled thus:-
“If the court which rendered the first decision was competent to entertain
the suit or other proceeding, and had therefore competency to decide the
issue or matter, the circumstance that it is a tribunal of exclusive
jurisdiction or one from whose decision no appeal lay would not by
themselves negative the finding on the issue by it being res judicata in
later proceedings. Similarly, as stated already, though S. 11 of the Civil
Procedure Code clearly contemplates the existence of two suits and the
findings in the first being res judicata in the later suit, it is well
established that the principle underlying it is equally applicable to the
case of decisions rendered at successive stages of the same suit or
proceeding. But where the principle of res judicata is invoked in the case
of the different stages of proceedings in the same suit, the nature of the
proceedings, the scope of the enquiry which the adjectival law provides for
the decision being reached, as well as the specific provisions made on
matters touching such decision are some of the material and relevant
factors to be considered before the principle is held applicable.”
Thereafter, the Court adverted to the applications which were filed in
three suits for setting aside the ex parte orders passed against the
appellant therein, and after deliberating the nature of the order, that is,
one under Order IX Rule 7 and the rejection thereof by the trial court and
affirmance thereof by the High Court, the filing of the application under
Order IX Rule 13 and dismissal of the same on the ground of res judicata
and concurrence thereof by the High Court, the court referred to the
decision in Satyadhan Ghosal (supra) and after reproducing a paragraph from
the same, opined thus: -
“Does this, however, mean that because at an earlier stage of the
litigation a court has decided an interlocutory matter in one way and no
appeal has been taken therefrom or no appeal did lie, a higher court cannot
at a later stage of the same litigation consider the matter again? .... It
is clear therefore that an interlocutory order which had not been appealed
from either because no appeal lay or even though an appeal lay an appeal
was not taken could be challenged in an appeal from the final decree or
order.”
After so stating, the Court observed that if the correctness of the order
of the Civil Judge in disposing of the application under Order IX Rule 7
filed by the appellant was questioned in an appeal against the decree in
the suit, these principles and the observations would have immediate
relevance. In that context, the three-Judge Bench proceeded to deal with
various kinds of interlocutory orders and opined that certain orders that
are interlocutory in nature are capable of being altered or varied by the
subsequent applications for the same relief, normally only on proof of new
facts or new situations which subsequently emerge. The Court emphasised on
the nature of the order and ruled that if it does not impinge upon the
legal rights of parties to the litigation the principle of res judicata
would not apply to the findings on which the order is passed. However, the
Court observed that if applications were made for relief on the same basis
after the same had once been disposed of the court would be justified in
rejecting the same as an abuse of the process of the Court. Thereafter,
the Court proceeded to state that the successive applications based on same
set of facts, if they are interlocutory orders of different nature and are
passed for preservation of property, do not in any manner decide the merit
of the controversy in issue. They can be rejected on the ground of abuse
of the process of the Court but not by principle of res judicata. The said
principle was followed in The United Provinces Electric Supply Co. Ltd.,
Allahabad v. Their Workmen[12] and S. Malla Reddy v. Future Builders
Cooperative Housing Society and others[13].
In the case at hand, we do not intend to deal with the submission whether
rejection of an application to take additional documents on record during
the trial and the affirmation thereof in civil revision by the High Court
would operate as res judicata or not, when an application is preferred
under Order XLI Rule 27 of the CPC, for the provisions are different. But,
we intend to deal with the exercise of jurisdiction and justifiability of
the same regard being had to the special factual matrix of the instant
case.
At this juncture, it is necessary to clarify that sub-rule (1)(a) of Order
XLI Rule 27 is not attracted to the case at hand inasmuch as the documents
were not taken on record by the trial court and error, if any, in the said
order does not survive for reconsideration after the High Court has given
the stamp of approval to the same in civil revision. Similarly, sub-rule
(1)(aa) would not be applicable as the party seeking to produce an
additional evidence on the foundation that despite exercise of due
diligence, such evidence was not within his knowledge or could not, after
exercise of due diligence, be produced by him at the time when the decree
appealed against was passed does not arise, for the documents were sought
to be produced before the trial court. Cases may arise under sub-rule
(1)(b) where the appellate court may require any document to be produced or
any witness to be examined to enable it to pronounce judgment, or for any
other substantial cause. However, exercise of the said power is
circumscribed by the limitations specified in the language of the rule. It
is the duty of the court to come to a definite conclusion that it is really
necessary to accept the documents as additional evidence to enable it to
pronounce the judgment. The true test is, as has been held in Parsotim v.
Lal Mohan[14] where the appellate court was able to pronounce the judgment
from the materials before it without taking into consideration the
additional evidence sought to be adduced. The same principle has been
accepted by a three-Judge Bench in Arjan Singh v. Kartar Singh and
others[15].
Coming to the case at hand, the documents were sought to be introduced at
the stage of hearing of the suit. Numerous opportunities were granted to
file the documents, but the plaintiffs chose not to avail of the same.
Therefore, the said documents were not accepted by the trial court. A
civil revision was filed and dealt with on merits. Same set of documents
were sought to be introduced before the appellate court as the additional
evidence. The said documents are not such documents which are clinching and
really essential for pronouncement of the judgment or for that matter any
other substantial cause. There may be cases where on acceptance of public
documents the decision on the lis in question would subserve cause of
justice and avoid miscarriage of justice. In the instant case, the
documents which are sought to be filed before the appellate court as
additional evidence are bank accounts which really are not clinching to put
the controversy. As we find, it is extremely difficult to put the case
under Order XLI Rule 27 (1)(b) to suggest that it is necessary to take the
documents on record in the interest of justice and, additionally, when the
said documents were rejected to be taken on record by the trial court and
the said rejection had been affirmed by the High Court. We are conscious,
the spectrum that can be covered under Order XLI Rule 27 (1)(b) may be in a
broader one but in certain cases judicial propriety would be an impediment
and the present case is one where the judicial propriety comes on the way.
Therefore, we are of the considered opinion that the appellate court has
erred in taking recourse to the said clause and allowing the application
for taking additional evidence and similarly the High Court has committed
illegality opining that the order passed by the lower appellate court does
not suffer from any infirmity.
Be it stated, the learned counsel has referred to certain authorities which
pertain to scope of Order XLI Rule 27 of the CPC, but they are
distinguishable on facts as they relate to due diligency, relevancy of
documents and the requisite approach. We have already opined that the
documents are not so clinching to be accepted as additional evidence in
exercise of jurisdiction under Order XLI Rule 27(1)(b), for the judicial
propriety becomes an impediment and, therefore, there is no necessity to
advert to the said authorities.
In view of the aforesaid analysis, the appeal is allowed and the orders
passed by the lower appellate court and that of the High Court are set
aside. There shall be no order as to costs.
.............................J.
[Dipak Misra]
.............................J.
[V. Gopala Gowda]
New Delhi;
August 27, 2014.
-----------------------
[1] AIR 1964 SC 993
[2] (2000) 6 SCC 359
[3] (1969) 2 SCC 74
[4] AIR 1963 SC 1526
[5] AIR 1979 SC 553
[6] (1994) 4 SCC 659
[7] JT 2002 (6) SC 16
[8] AIR 1960 SC 941
[9] 7 Moo Ind App 283 at p. 302 (PC)
[10] 10 Moo Ind App 340 (PC)
[11] 10 Moo Ind App 431 (PC)
[12] (1972) 2 SCC 54
[13] (2013) 9 SCC 349
[14] AIR 1931 PC 143
[15] AIR 1951 SC 193
-----------------------
22
under Order XLI Rule 27 (1)(b) to suggest that it is necessary to take the documents on record in the interest of justice and, additionally, when the said documents were rejected to be taken on record by the trial court and the said rejection had been affirmed by the High Court.
We are conscious, the spectrum that can be covered under Order XLI Rule 27 (1)(b) may be in a
broader one but in certain cases judicial propriety would be an impediment and the present case is one where the judicial propriety comes on the way. Therefore, we are of the considered opinion that the appellate court has erred in taking recourse to the said clause and allowing the application for taking additional evidence and similarly the High Court has committed illegality opining that the order passed by the lower appellate court does not suffer from any infirmity.=
Coming to the case at hand, the documents were sought to be introduced at
the stage of hearing of the suit.
Numerous opportunities were granted to
file the documents, but the plaintiffs chose not to avail of the same.
Therefore, the said documents were not accepted by the trial court.
A
civil revision was filed and dealt with on merits.
Same set of documents
were sought to be introduced before the appellate court as the additional
evidence.
The said documents are not such documents which are clinching and
really essential for pronouncement of the judgment or for that matter any
other substantial cause.
There may be cases where on acceptance of public
documents the decision on the lis in question would subserve cause of
justice and avoid miscarriage of justice.
In the instant case, the
documents which are sought to be filed before the appellate court as
additional evidence are bank accounts which really are not clinching to put
the controversy.
As we find, it is extremely difficult to put the case
under Order XLI Rule 27 (1)(b) to suggest that it is necessary to take the
documents on record in the interest of justice and, additionally, when the
said documents were rejected to be taken on record by the trial court and
the said rejection had been affirmed by the High Court.
We are conscious,
the spectrum that can be covered under Order XLI Rule 27 (1)(b) may be in a
broader one but in certain cases judicial propriety would be an impediment
and the present case is one where the judicial propriety comes on the way.
Therefore, we are of the considered opinion that the appellate court has
erred in taking recourse to the said clause and allowing the application
for taking additional evidence and similarly the High Court has committed
illegality opining that the order passed by the lower appellate court does
not suffer from any infirmity.
Be it stated, the learned counsel has referred to certain authorities which
pertain to scope of Order XLI Rule 27 of the CPC, but they are
distinguishable on facts as they relate to due diligency, relevancy of
documents and the requisite approach. We have already opined that the
documents are not so clinching to be accepted as additional evidence in
exercise of jurisdiction under Order XLI Rule 27(1)(b), for the judicial
propriety becomes an impediment and, therefore, there is no necessity to
advert to the said authorities.
In view of the aforesaid analysis, the appeal is allowed and the orders
passed by the lower appellate court and that of the High Court are set
aside. There shall be no order as to costs.
2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41854
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8283 OF 2014
(Arising out of S.L.P. (C) No. 18676 of 2012)
Surjit Singh & Ors. ... Appellants
Versus
Gurwant Kaur & Ors. ...Respondents
J U D G M E N T
Dipak Misra, J.
Leave granted.
The respondent No. 1 instituted Civil Suit No. 78 of 2003 in the Court of
the learned Additional Civil Judge (Senior Division), Patti, district Taran
Taran, for specific performance of contract entered into between him and
the appellant No. 1, the predecessor-in-interest of appellants Nos. 2 to 4
and the respondent No. 2 for sale of land admeasuring 28 K 12 M bearing
khata Khatoni 330/1254, 1256, 331/1261 and Killa Nos. 34/25 (712), 40/1/1
(4-15), 10/2 min (0-8), 41/5 min (2-8) 6/1 (7-5) 15/1 (2-16), 34/162 (3-8),
situated in village Talwandi Sobha Singh Tehsil Patti District Amritsar as
per Jamabandi for the year 1997-98 at the rate of Rs.3,22,500/- per Killa
which included all rights attached to the land.
It was averred in the plaint that the defendant in the Civil suit had
received Rs.50,000/- on 7.2.2003 and a further sum of Rs. 50,000/- on
25.2.2003 as against the determined price of 3,22,500/- per killa as per
the agreement. As stipulated in the agreement the balance amount was to be
paid on 3.6.2013 at the time of execution and registration of sale deed
before the sub Registrar, Patti. It was also recited in the agreement that
the suit land was already mortgaged with the State Bank of Patiala and the
defendants should clear the loan before execution of the sale deed in
favour of plaintiff failing which the deposited amount would be forfeited.
The plaintiff, as averred in the plaint, went to the office of the sub-
Registrar but the defendants did not turn up. As there was breach of
contract by the defendants, for they failed to execute and register the
sale deed in favour of the plaintiff, he initiated the civil action for
specific performance of contract or in the alternative for recovery of
Rs.2,00,000/- as compensation.
The defendants entered contest and filed the written statement contending,
inter alia, that the suit was not maintainable; that the plaintiff was not
ready with the balance amount; that the stand put forth by the plaintiff
that he had come to Tehsil complex on 3.6.2003 along with the balance sale
consideration and the attesting witnesses was farther from the truth, for
the original defendants remained present in the office of Sub Registrar,
Patti from 9.00 a.m. to 5.00 p.m. but the plaintiff did not turn up as he
was not ready with the balance consideration; and that the defendants moved
an application before the concerned Sub-Registrar for marking their
presence and gave an affidavit which was duly signed by the Sub-Registrar.
The further stand of the defendants was that the plaintiff and her
relatives tried to take forcible possession of the property in dispute as a
consequence of which FIR No. 97 dated 9.6.2003 for offences punishable
under Sections 307, 326, 323, 148 and 149 of the Indian Penal Code and
Section 25 of the Arms Act was registered.
The learned trial Judge framed as many as six issues, recorded the evidence
and, eventually, dismissed the suit filed by the plaintiff. It is apt to
mention here that during the pendency of the suit the plaintiff had filed
an application under Section 151 of the Code of Civil Procedure (CPC) for
filing of additional documents with the prayer that the said documents
should be accepted as additional evidence. It was stated in the
application that in her evidence she had already deposed that she had got
Rs.9,00,000/- from her husband’s brother, Gian Singh, and he was having
Rs.1,00,000/- in her account bearing No. 1313. It was also averred that
she was under the impression that her father was prosecuting the case and
had filed the statement of accounts bearing No. 1-29 of Gian Singh and of
plaintiff’s bearing No. SB/17274 but inadvertently her father could not
produce the said statement of accounts and pass books, and she had no
knowledge about the same. In the said backdrop a prayer was made for
acceptance of the documents.
The learned trial Judge, after perusing the material on record, passed the
following order: -
“A perusal of file shows that the suit was filed on 23.7.2003 and issues
were framed on 7.1.2004. Since then, plaintiff availed 14 opportunities to
produce and conclude her evidence and ultimately closed it at her own on
11.5.05 and thereafter the case was fixed for defendant evidence.
Defendant also took 19 opportunities to conclude their evidence and
ultimately closed the same on 19.4.06 and after that the case was fixed for
rebuttal evidence of plaintiff, for which plaintiff took 8 opportunities
and then he came up with the present application. It is clear from the
above facts that it was not mere inadvertence that these copies could not
be produced by the plaintiff, rather the plaintiff did not act diligently
herself. If the applicant was diligent, the application should have come
on record, much earlier and not now and it appears only an attempt to seek
time and fill up lacuna. Accordingly the application is dismissed.”
The aforesaid order was assailed in Civil Revision No. 6014 of 2008 before
the High Court and the learned single Judge, after perusing the order
passed by the learned trial Judge, dismissed the civil revision by
ascribing the following reasons: -
“Keeping in view the order, referred to above, this court is of the view
that prayer made by the learned counsel for the grant of one opportunity to
the petitioner to produce copies of statements of accounts by way of
additional evidence cannot at all be accepted since number of opportunities
were availed of by the plaintiff but failed to produce copies of statement
of account in support of her case. Even otherwise, case is at the fag end
stage and now this application for producing the afore referred documents
in support of her case has been filed just to delay the proceedings of the
case. That apart, the aforementioned copies of statement of accounts were
very much in the knowledge of the plaintiff-petitioner and if the
petitioner had been vigilant, she must have produced the same at
appropriate stage. Approach of the learned trial court in dismissing the
application for producing copies of statement of account by way of
additional evidence cannot at all be said to be erroneous, which may
warrant interference by this court.”
Thereafter the hearing of the suit proceeded and, as has been stated
earlier, it was dismissed. Being grieved by the judgment and decree passed
by the learned trial Judge, the plaintiff preferred an appeal before the
Additional District Judge, Taran Taran. During the pendency of the appeal,
the plaintiff-appellant filed an application under Order XLI Rule 27 of CPC
for production of pass books and the statement of bank accounts as
additional evidence. The said application was resisted on many a ground.
The learned Additional District Judge came to hold that the evidence being
in nature of documentary evidence and being admissible, it was appropriate
to allow the same. The lower appellate court also observed that the
defendants-respondents would have the opportunity to rebut the same. Being
of this view he allowed the application subject to payment of Rs.1,000/- as
costs.
The said order was assailed in Civil Revision No. 5850 of 2011 and the
learned single Judge by order dated 3.5.2012, declined to interfere on the
ground that the lower appellate court had fairly appreciated the provisions
in law and correctly opined that the documents were required for just
decisions of the case. That apart, the learned single Judge observed that
in a suit for specific performance of contract the ready and willingness of
the plaintiff to perform her part of the contract, being an important
factor, by allowing the application the lower appellate court had not
committed any legal infirmity. The said order is under assail in the
present appeal by special leave.
Calling in question the legal substantiality of the order, it is urged by
Ms. Manjula Gupta, learned counsel appearing for the appellants, that once
the application for additional evidence was rejected by the learned trial
Judge and the same got the stamp of approval by the High Court in civil
revision on being assailed, the said order operates as res judicata and,
therefore, the lower appellate court could not have entertained the
application. Learned counsel would further submit that the learned first
appellate Judge has fallen into grave error not only in exercise of his
jurisdiction inasmuch as the plea relating to ready and willingness was
disbelieved by the trial court on the basis of material on record and the
adroit made by the plaintiffs/ appellants at the appellate stage to produce
books of accounts to show that they had money in their accounts, would not
come within the ambit and sweep to make out a case under Order XLI Rule 27
of CPC. That apart, submits learned counsel for the appellants, the
ingredients which are required to be satisfied for getting the benefit
under the said provision, were not at all satisfied and hence, the impugned
order is absolutely vulnerable. In support of her submissions, she has
commended us to the decisions in Arjun Singh v. Mohindra Kumar and
others[1], Kunhayammed and others v. State of Kerala and another[2] and
Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapet[3].
Mr. Vikas Mahajan, learned counsel appearing for the respondents, per
contra, would contend that the first application was filed under Section
151 of CPC for filing additional documents before the trial court and it
has no relevance when an application for filing of additional evidence
under Order XLI Rule 27 of the CPC is filed before the appellate court. It
is urged by him that acceptance of the said documents would subserve the
cause of justice and when the appellate court and the High Court have
accepted the stand of the respondents in proper perspective, the impugned
orders do not warrant any interference by this Court. To bolster the said
submission he has relied on the decisions in K. Venkataramiah v. A.
Seetharama Reddy and others[4], Syed Abdul Khader v. Rami Reddy and
others[5], Billa Jagan Mohan Reddy and another v. Billa Sanjeeva Reddy and
others[6] and Wadi v. Amilal and others[7].
First, we shall deal with the application that was filed by the plaintiffs
before the learned trial Judge. It was an application under Section 151 of
CPC for filing of additional documents and the learned trial Judge passed
an order refusing to take the additional documents on record. The said
order having assailed before the High Court in the civil revision, the High
Court had declined to interfere. The question that arises for
consideration is when such an order passed by the learned trial Judge had
been affirmed by the High Court in exercise of supervisory jurisdiction,
would it still be permissible from the view of propriety on the part of the
first appellate court to accept the documents in exercise of power under
Order XLI Rule 27 of the CPC and, if not, was it not the duty of the High
Court to lancinate it.
In this context, we may refer with profit to the authority in Satyadhan
Ghosal and others v. Smt. Deorajin Debi and another[8]. It was a case
where the landlords had obtained a decree for ejectment against the
tenants. After the decree was made, the Calcutta Thika Tenancy Act, 1949
came into force. The decree had not yet been put for execution. The
tenants preferred an application under Section 28 of the said Act for
rescission of the decree passed against them. The said application was
resisted by the landlords who were the decree-holders. The learned Munsif
rejected the application holding that the tenants were Thika tenants under
the Thika Tenancy Act. Against the said order the tenants moved the High
Court of Calcutta under Section 115 of CPC. By the time the revision
application was taken up for hearing, the Calcutta Thika Tenancy Act was
amended in 1953. The amended Act omitted Section 28 of the original Act.
The High Court considered the effect of the amendment made in the Act and
opined that in view of the amended definition of the term “Thika tenant”
and the evidence brought on record it can be held that the tenants were
Thika tenants. Being of this view, the High Court allowed the revision and
set aside the order of the learned Munsif whereby he had dismissed the
application of the tenants under Section 28 of the Act. After setting
aside the order, the High Court remanded the matter to the court of learned
Munsif for disposal in accordance with law. After remit the learned Munsif
rescinded the decree. The said order was assailed under Section 115 of CPC
which was rejected by the High Court. In revision, a contention was
advanced that Section 28 of the Act was not applicable. The Learned Judge
who heard the matter opined that the question as between the parties was
res judicata. Against the said order an appeal was preferred before this
Court on the strength of special leave. In that context, the Court ruled
thus: -
“The principle of res judicata is based on the need of giving a finality to
judicial decisions. What it says is that once a res is judicata, it shall
not be adjudged again. Primarily it applies as between past litigation and
future litigation. When a matter – whether on a question of fact or a
question of law – has been decided between two parties in one suit or
proceeding and the decision is final, either because no appeal was taken to
a higher court or because the appeal was dismissed, or no appeal lies,
neither party will be allowed in a future suit or proceeding between the
same parties to canvass the matter gain. This principle of res judicata is
embodied in relation to suits in S. 11 of the Code of Civil Procedure; but
even where S. 11 does not apply, the principle of res judicata has been
applied by courts for the purpose of achieving finality in litigation. The
result of this is that the original court as well as any higher court must
in any future litigation proceed on the basis that the previous decision
was correct.
After so stating the Court laid down the principle of the
applicability of the doctrine of res judicata between two stages of the
suit: -
“The principle of res judicata applies also as between two stages in the
same litigation to this extent that a court, whether the trial court or a
higher court having at an earlier stage decided a matter in one way will
not allow the parties to re-agitate the matter again at a subsequent stage
of the same proceedings. Does this however mean that because at an earlier
stage of the litigation a court has decided an interlocutory matter in one
way and no appeal has been taken therefrom or no appeal did lie, a higher
court cannot at a later stage of the same litigation consider the matter
again?”
After posing the said question the Court examined the Privy Council
decisions in Moheshur Singh v. Bengal Government[9], Forbes v. Ameeroonissa
Begum[10] and Sheonath v. Ramnath[11] and accepted the observations made by
the Privy Council in Moheshur Singh (supra) wherein it has been held thus:
-
“We are of opinion that this objection cannot be sustained. We are not
aware of any law or regulation prevailing in India which renders it
imperative upon the suitor to appeal from every interlocutory order by
which he may conceive himself aggrieved, under the penalty, if he does not
so do, of forfeiting for ever the benefit of the consideration of the
appellate court. No authority or precedent has been cited in support of
such a proposition, and we cannot conceive that anything would be more
detrimental to the expeditious administration of justice than the
establishment of a rule which would impose upon the suitor the necessity of
so appealing; whereby on the one hand he might be harassed with endless
expense and delay, and on the other inflict upon his opponent similar
calamities. We believe there have been very many cases before this
Tribunal in which their Lordships have deemed it to be their duty to
correct erroneous interlocutory orders, though not brought under their
consideration until the whole cause had been decided, and brought hither by
appeal for adjudication.”
Approving the said principle this Court opined that the appellants in
that case were not precluded from raising the question that Section 28 of
the original Thika Tenancy Act was not available to the tenants after
coming into force of Thika Tenancy (Amendment) Act, 1953 as it was an
appeal by special leave to the superior court.
The aforesaid decision was approved in Arjun Singh (supra) wherein the
Court ruled thus:-
“If the court which rendered the first decision was competent to entertain
the suit or other proceeding, and had therefore competency to decide the
issue or matter, the circumstance that it is a tribunal of exclusive
jurisdiction or one from whose decision no appeal lay would not by
themselves negative the finding on the issue by it being res judicata in
later proceedings. Similarly, as stated already, though S. 11 of the Civil
Procedure Code clearly contemplates the existence of two suits and the
findings in the first being res judicata in the later suit, it is well
established that the principle underlying it is equally applicable to the
case of decisions rendered at successive stages of the same suit or
proceeding. But where the principle of res judicata is invoked in the case
of the different stages of proceedings in the same suit, the nature of the
proceedings, the scope of the enquiry which the adjectival law provides for
the decision being reached, as well as the specific provisions made on
matters touching such decision are some of the material and relevant
factors to be considered before the principle is held applicable.”
Thereafter, the Court adverted to the applications which were filed in
three suits for setting aside the ex parte orders passed against the
appellant therein, and after deliberating the nature of the order, that is,
one under Order IX Rule 7 and the rejection thereof by the trial court and
affirmance thereof by the High Court, the filing of the application under
Order IX Rule 13 and dismissal of the same on the ground of res judicata
and concurrence thereof by the High Court, the court referred to the
decision in Satyadhan Ghosal (supra) and after reproducing a paragraph from
the same, opined thus: -
“Does this, however, mean that because at an earlier stage of the
litigation a court has decided an interlocutory matter in one way and no
appeal has been taken therefrom or no appeal did lie, a higher court cannot
at a later stage of the same litigation consider the matter again? .... It
is clear therefore that an interlocutory order which had not been appealed
from either because no appeal lay or even though an appeal lay an appeal
was not taken could be challenged in an appeal from the final decree or
order.”
After so stating, the Court observed that if the correctness of the order
of the Civil Judge in disposing of the application under Order IX Rule 7
filed by the appellant was questioned in an appeal against the decree in
the suit, these principles and the observations would have immediate
relevance. In that context, the three-Judge Bench proceeded to deal with
various kinds of interlocutory orders and opined that certain orders that
are interlocutory in nature are capable of being altered or varied by the
subsequent applications for the same relief, normally only on proof of new
facts or new situations which subsequently emerge. The Court emphasised on
the nature of the order and ruled that if it does not impinge upon the
legal rights of parties to the litigation the principle of res judicata
would not apply to the findings on which the order is passed. However, the
Court observed that if applications were made for relief on the same basis
after the same had once been disposed of the court would be justified in
rejecting the same as an abuse of the process of the Court. Thereafter,
the Court proceeded to state that the successive applications based on same
set of facts, if they are interlocutory orders of different nature and are
passed for preservation of property, do not in any manner decide the merit
of the controversy in issue. They can be rejected on the ground of abuse
of the process of the Court but not by principle of res judicata. The said
principle was followed in The United Provinces Electric Supply Co. Ltd.,
Allahabad v. Their Workmen[12] and S. Malla Reddy v. Future Builders
Cooperative Housing Society and others[13].
In the case at hand, we do not intend to deal with the submission whether
rejection of an application to take additional documents on record during
the trial and the affirmation thereof in civil revision by the High Court
would operate as res judicata or not, when an application is preferred
under Order XLI Rule 27 of the CPC, for the provisions are different. But,
we intend to deal with the exercise of jurisdiction and justifiability of
the same regard being had to the special factual matrix of the instant
case.
At this juncture, it is necessary to clarify that sub-rule (1)(a) of Order
XLI Rule 27 is not attracted to the case at hand inasmuch as the documents
were not taken on record by the trial court and error, if any, in the said
order does not survive for reconsideration after the High Court has given
the stamp of approval to the same in civil revision. Similarly, sub-rule
(1)(aa) would not be applicable as the party seeking to produce an
additional evidence on the foundation that despite exercise of due
diligence, such evidence was not within his knowledge or could not, after
exercise of due diligence, be produced by him at the time when the decree
appealed against was passed does not arise, for the documents were sought
to be produced before the trial court. Cases may arise under sub-rule
(1)(b) where the appellate court may require any document to be produced or
any witness to be examined to enable it to pronounce judgment, or for any
other substantial cause. However, exercise of the said power is
circumscribed by the limitations specified in the language of the rule. It
is the duty of the court to come to a definite conclusion that it is really
necessary to accept the documents as additional evidence to enable it to
pronounce the judgment. The true test is, as has been held in Parsotim v.
Lal Mohan[14] where the appellate court was able to pronounce the judgment
from the materials before it without taking into consideration the
additional evidence sought to be adduced. The same principle has been
accepted by a three-Judge Bench in Arjan Singh v. Kartar Singh and
others[15].
Coming to the case at hand, the documents were sought to be introduced at
the stage of hearing of the suit. Numerous opportunities were granted to
file the documents, but the plaintiffs chose not to avail of the same.
Therefore, the said documents were not accepted by the trial court. A
civil revision was filed and dealt with on merits. Same set of documents
were sought to be introduced before the appellate court as the additional
evidence. The said documents are not such documents which are clinching and
really essential for pronouncement of the judgment or for that matter any
other substantial cause. There may be cases where on acceptance of public
documents the decision on the lis in question would subserve cause of
justice and avoid miscarriage of justice. In the instant case, the
documents which are sought to be filed before the appellate court as
additional evidence are bank accounts which really are not clinching to put
the controversy. As we find, it is extremely difficult to put the case
under Order XLI Rule 27 (1)(b) to suggest that it is necessary to take the
documents on record in the interest of justice and, additionally, when the
said documents were rejected to be taken on record by the trial court and
the said rejection had been affirmed by the High Court. We are conscious,
the spectrum that can be covered under Order XLI Rule 27 (1)(b) may be in a
broader one but in certain cases judicial propriety would be an impediment
and the present case is one where the judicial propriety comes on the way.
Therefore, we are of the considered opinion that the appellate court has
erred in taking recourse to the said clause and allowing the application
for taking additional evidence and similarly the High Court has committed
illegality opining that the order passed by the lower appellate court does
not suffer from any infirmity.
Be it stated, the learned counsel has referred to certain authorities which
pertain to scope of Order XLI Rule 27 of the CPC, but they are
distinguishable on facts as they relate to due diligency, relevancy of
documents and the requisite approach. We have already opined that the
documents are not so clinching to be accepted as additional evidence in
exercise of jurisdiction under Order XLI Rule 27(1)(b), for the judicial
propriety becomes an impediment and, therefore, there is no necessity to
advert to the said authorities.
In view of the aforesaid analysis, the appeal is allowed and the orders
passed by the lower appellate court and that of the High Court are set
aside. There shall be no order as to costs.
.............................J.
[Dipak Misra]
.............................J.
[V. Gopala Gowda]
New Delhi;
August 27, 2014.
-----------------------
[1] AIR 1964 SC 993
[2] (2000) 6 SCC 359
[3] (1969) 2 SCC 74
[4] AIR 1963 SC 1526
[5] AIR 1979 SC 553
[6] (1994) 4 SCC 659
[7] JT 2002 (6) SC 16
[8] AIR 1960 SC 941
[9] 7 Moo Ind App 283 at p. 302 (PC)
[10] 10 Moo Ind App 340 (PC)
[11] 10 Moo Ind App 431 (PC)
[12] (1972) 2 SCC 54
[13] (2013) 9 SCC 349
[14] AIR 1931 PC 143
[15] AIR 1951 SC 193
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