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PETITIONER:

MAHAVIR SINGH & ORS.

Vs.

RESPONDENT:

NARESH CHANDRA & ANR.

DATE OF JUDGMENT: 08/11/2000

BENCH:

S. Rajendra Babu, & D.P. Mohapatra.

JUDGMENT:

RAJENDRA BABU, J. :

Leave granted.

L...I...T.......T.......T.......T.......T.......T.......T..J

This appeal arises out of an order made by the High

Court in a revision petition filed under Section 115 of the

Code of Civil Procedure, 1908 by which it allowed an

application filed by the respondents- plaintiffs under Order

XLI, Rule 27 read with Section 151 CPC by setting aside the

order dated 24.12.1999 passed by the learned District Judge,

Gurgaon, refusing to permit the respondents-plaintiffs to

adduce additional evidence by the said application. The

respondent-plaintiffs filed a suit for (i) specific

performance of the agreement to sell dated 30.1.1995, (ii)

delivery of vacant possession and (iii) a declaration that

the defendant No.1 was an absolute owner of the land

measuring 102 kanals and 14 marlas as described in the

plaint. In pursuance of the said agreement, it is alleged

that the defendants submitted on 7.2.1995 an application to

the Income Tax Department for obtaining clearance for sale

of the said land which was signed by the plaintiff No.1 and

defendant No.1 along with certain other documents attached

thereto. After trial, the trial court dismissed the suit

against which a regular appeal was filed. In the course of

the trial the original agreement of sale produced before the

court was sent for scientific examination. PW-8, Ashok

Kashyap, who is stated to be Hand-Writing and Finger Prints

Expert, deposed that he had examined the original agreement

to sell dated 30.1.1995 and found evidence of interpolation

at pages 2 and 3. In the appeal filed before the learned

District Judge, an application under Order XLI, Rule 27 CPC

read with Section 151 CPC is filed by the respondents to

adduce additional evidence. The contention put forth in the

appellate court is that the original agreement for sale and

the copy of agreement produced before Income Tax Department

should be examined by Forensic Science Laboratory,

Government of N.C.T., Delhi or by any other Government

Forensic Science Laboratory having sufficient instruments or

apparatus for detection of erasyers thereby asking the Court

to make detailed inquiry as to whether the said facilities

are available in any laboratory and then to send the

documents to such laboratory. The appellate court dismissed

the said application by the order made on 24.12.1999. Being

aggrieved by that order, a revision petition was preferred

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before the High Court, as stated earlier.

It is unfortunate that the appellant made a

representation to the Chief Justice of the High Court to

list the case before another Judge in the circumstances set

forth in the representation and a copy of which was also

sent to the learned Judge. However, it appears that this

aspect does not seem to have been pursued with and the same

learned Judge before whom the matter was listed heard the

matter and decided the same. These allegations have been

reiterated in the course of the special leave petition.

Preliminary objection is raised by the respondents to the

effect that the case came up for hearing in the High Court

on 28.3.2000 and 25.4.2000, while the representation had

been made on 23.3.2000 but not brought to the notice of the

learned Judge nor any objection to this effect during the

course of the hearing of the matter by the learned Judge was

raised before him before the arguments were concluded and,

therefore, reiteration of those apprehensions in the course

of the special leave petition will tantamount to making

allegations against the learned Judge of the High Court

which are uncalled for and this Court should not entertain

the special leave petition at all in view of the conduct of

the appellant. We have given our anxious consideration to

this aspect of the matter. Though certain apprehensions

have been expressed by the appellant as to the

appropriateness of the hearing of the matter by the learned

Judge whose order is under appeal before us, the same has

not been pursued with either before the same learned Judge

or before the learned Chief Justice of the High Court. A

mere reiteration of the circumstances set forth in the said

representation will not disentitle the appellant to file

this special leave petition. In that view of the matter, we

overrule the preliminary objection raised by the learned

counsel for the respondents.

The learned Judge examined the matter as if he was

deciding an original proceeding before him without bearing

in mind the limited scope of Order XLI, Rule 27 CPC and on a

revision petition filed against an order made on the

application filed by the respondents the learned Judge

proceeded to advert to the nature of the facilities

available in the Forensic Science Laboratory, Government of

N.C.T., Delhi. The observations made by the learned

District Judge on the application filed by respondents were

held to be not appropriate by the learned Judge. The view

expressed by the learned District Judge was termed as

fallacious. The High Court took the view that the latest

facility was not available at the time when the parties led

the evidence before the trial court and if this facility

became available only in the year 1999 and if the plaintiff

wants to get the disputed documents examined by such

Laboratory, it could not be said that it will not be a

sufficient cause to permit the plaintiff to adduce

additional evidence during the pendency of the appeal. On

that basis the learned Judge proceeded to order that it was

not appropriate exercise of the discretion vested in the

trial court and would require interference by the High Court

in the original jurisdiction.

Before we proceed further we would like to refer to the

scope of an application under Order XLI, Rule 27 CPC.

Section 107 CPC enables an appellate court to take

additional evidence or to require such other evidence to be

taken subject to such conditions and limitations as are

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prescribed under Order XLI, Rule 27 CPC. Principle to be

observed ordinarily is that the appellate court should not

travel outside the record of the lower court and cannot take

evidence on appeal. However, Section 107(d) CPC is an

exception to the general rule, and additional evidence can

be taken only when the conditions and limitations laid down

in the said rule are found to exist. The court is not bound

under the circumstances mentioned under the rule to permit

additional evidence and the parties are not entitled, as of

right, to the admission of such evidence and the matter is

entirely in the discretion of the court, which is, of

course, to be exercised judiciously and sparingly. The

scope of Order XLI, Rule 27 CPC was examined by the Privy

Council in Kesowji Issur v. G.I.P.Railway, AIR 1931 PC 143,

in which it was laid down clearly that this rule alone can

be looked to for taking additional evidence and that the

court has no jurisdiction to admit such evidence in cases

where this rule does not apply. Order XLI, Rule 27 CPC

envisages certain circumstances when additional evidence can

be adduced :

(i) the court from whose decree the appeal is preferred

has refused to admit evidence which ought to have been

admitted, or

(ii) the party seeking to produce additional evidence,

establishes that notwithstanding the exercise of due

diligence, such evidence was not within his knowledge or

could not, after the exercise of due diligence, be produced

by him at the time when the decree appealed against was

passed, or

(iii) the appellate court requires any document to be

produced or any witness to be examined to enable it to

pronounce judgment, or for any other substantial cause.

In the present case, it is not the case of either party

that the first situation is attracted. So far as the second

circumstance noticed above is concerned, question of

exercise of due diligence would not arise because the

concerned scientific laboratory from which examination is

sought to be made itself was not in existence at the time of

trial and so that clause is also not attracted. In the

third circumstance 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. The expression to enable it to

pronounce judgment has been subject of several decisions

including Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979

SC 553 wherein it was held that when the appellate court

finds itself unable to pronounce judgment owing to a lacuna

or defect in the evidence as it stands, it may admit

additional evidence. The ability to pronounce a judgment is

to be understood as the ability to pronounce a judgment

satisfactory to the mind of court delivering it. It is only

a lacuna in the evidence that will empower the court to

admit additional evidence [ See : The Municipal Corporation

of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC

1008]. But a mere difficulty in coming to a decision is not

sufficient for admission of evidence under this rule. The

words or for any other substantial cause must be read with

the word requires, which is set out at the commencement of

the provision, so that it is only where, for any other

substantial cause, the appellate court requires additional

evidence, that this rule would apply as noticed by the Privy

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Council in Kesowji Issur v. G.I.P.Railway [supra]. It is

under these circumstances such a power could be exercised.

Therefore, when the first appellate court did not find the

necessity to allow the application, we fail to understand as

to how the High Court could, in exercise of its power under

Section 115 CPC, could have interfered with such an order,

particularly when the whole appeal is not before the court.

It is only in the circumstances when the appellate court

requires such evidence to pronounce the judgment the

necessity to adduce additional evidence would arise and not

in any other circumstances. When the first appellate court

passed the order on the application filed under Order XLI,

Rule 27 CPC, the whole appeal was before it and if the first

appellate court is satisfied that additional evidence was

not required, we fail to understand as to how the High Court

could interfere with such an order under Section 115 CPC.

In this regard, we may notice the decision of this Court in

Gurdev Singh & Ors. vs. Mehnga Ram & Anr., 1997 (6) SCC

507, in which the scope of exercise of power under Section

115 CPC on an order passed in an application filed under

Order XLI, Rule 27 CPC was considered. When this decision

was cited before the High Court, the same was brushed aside

by stating that the principle stated therein is not

applicable to the facts of this case. We do not think so.

The High Court ought not to have interfered with such an

order.

Shri Gopal Subramanium, learned senior counsel for the

respondents, submitted that now that the documents had been

sent to the concerned Laboratory and the opinion had been

ascertained, the matter can certainly be examined by the

court. We cannot agree as this trend, if allowed, would

result in that at any stage of the case either in the first

appeal or the second appeal, the additional evidence is

sought to be adduced on the ground that better scientific

evidence can be adduced, the process would become unending.

It is only in the circumstances prescribed under Order XLI,

Rule 27 CPC such power can be exercised. He contended that

if the order of the High Court could not be sustained on the

ground that the entire appeal was not before it, the order

of the first appellate court also cannot be sustained

because while examining the effect of the evidence in the

course of the appeal, the application under Order XLI, Rule

27 CPC could have been dismissed. But the argument ignores

the fact that if the first appellate court had deemed it

necessary to allow the parties to adduce additional

evidence, it ought to have examined the entire evidence and

when it was rejecting the application, it felt that the

evidence already on record was sufficient one way or the

other. In that view of the matter, we do not wish to

express any opinion on this matter as it is open to the

parties to urge that aspect of the case in the appeal that

is pending before the High Court.

We, therefore, allow this appeal, set aside the order

made by the High Court and restore that of the first

appellate court. However, we are making it clear that its

correctness can be challenged by the aggrieved party in the

appeal that is pending before the High Court, if permissible

under law. The appeal is allowed accordingly. However, in

the circumstances of the case, we make no order as to costs.