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Saturday, September 6, 2014

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.= 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 = 2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41854

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.

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[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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