IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.6401 of 2009 (O&M) Date of Decision : 9.9.2010 Satnarain ....Petitioner Versus Smt. Sunder and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Ajay Kumar Kansal, Advocate for the petitioner. Mr.Amit Kumar Jain, Advocate for the respondents. ..... MAHESH GROVER, J. This revision petition is directed against the order dated 29.9.2009 by which the application moved by the petitioner under Order 41, Rule 27, CPC to lead additional evidence has been declined. The petitioner during the course of proceedings before the trial court had produced document Ex.PW2/A prepared by Nafe Singh PW2, which is revenue record indicating some mutations of the land which is in controversy. The petitioner's grievance was confined to two mutation numbers, i.e. 150 and 173. The excerpt which was produced by the said witness Nafe Singh was only partial and referred to both the mutations i.e. 150 and 173 which were incomplete. The mistake was realised after the passing of the decree prompting the C.R.No.6401 of 2009 (O&M) -2- petitioner to move such an application which has been declined vide the impugned order. Learned counsel for the petitioner states that the aforesaid excerpt which is incomplete was provided under the directions of the Court when the said witness was directed to produce it and, therefore, there was no reason to disbelieve or doubt about its correctness or authenticity and it is only due to erroneous impression that such a lapse occurred. He contended that he was entitled to produce the complete evidence so as to enable the court to reach the just conclusion. Reliance was placed on Jayaramdas and Sons v. Mirza Rafatullah Baig and others AIR 2004 SC 3685, North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) By Lrs 2008(3) R.C.R.(Civil) 165 and Mahavir Singh and others v. Naresh Chandra and another AIR 2001 SC 134. On the other hand, learned counsel for the respondents has stated that the petition is misconceived and the Court cannot grant permission to lead additional evidence especially when the document was to the knowledge of the petitioner and also for the reason that the application has been moved at the interim stage. Reliance was placed on Gurdev Singh and others v. Mehnga Ram and another AIR 1997 SC 3572. I have heard the learned counsel for the parties and have also perused the impugned order as also the judgments which have been relied upon by the learned counsel for the parties. The Supreme Court in Jayaramdas and Sons v. Mirza Rafatullah Baig and others, AIR 2004 SC 3685 observed as C.R.No.6401 of 2009 (O&M) -3- follows :- “8. It is true that additional evidence, whether oral or documentary, is not to be admitted in Appellate Court unless a case for admission thereof is made out by reference to clause (a) or (aa) of sub-rule (1) of Rule 27 or unless the Appellate Court requires such evidence to enable it to pronounce judgment or for any other substantial cause within the meaning of clause (b). A perusal of the documents, brought to our notice by the learned counsel for the appellants and their comparison with the documents already available on record clearly goes to show that the two are at variance and the effect of such variance determined either way would have a material bearing on the crucial issue arising for decision between the parties. 9. As already pointed out both the sets of documents are certified copies of public documents. The appellants would not ordinarily suspect or doubt the documents where the certified copies of public documents were secured from the public officer having the custody of such public documents. It is only when it came to their knowledge that the certified copies were at variance with the originals or were not complete copies that they thought of securing another set of certified copies and then seeking leave of the Court for producing the certified copies and then seeking leave of the Court for producing C.R.No.6401 of 2009 (O&M) -4- the certified copies obtained by them as an additional evidence in Appellate Court. The case of the appellants for production of additional evidence falls within clause (aa) of sub-rule (1), abovesaid. It would have been better if such ground was set out specifically in the application so that the opposite party could have had an opportunity of meeting the plea and the First Appellate Court could also have had the provisions of clause (aa) of sub-rule (1) in its mind for dealing with the appellants' application. However, still we feel that the ends of justice demand the additional evidence being allowed to be produced dehors the deficiency in the application filed by the appellants.” Likewise, in North Eastern Railway Administration, Gorakhpur v. Bhagwan Das(D)By Lrs 2008(3) R.C.R.(Civil) 165 it was observed as follows :- “14. Again in K.Venkataramiah v. A.Seetharama Reddy & Ors., AIR 1963 SC 1526 a Constitution Bench of this Court while reiterating the afore-noted observations in Parsotim's case (supra), pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other substantial cause'. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence 'to enable it to pronounce C.R.No.6401 of 2009 (O&M) -5- judgment', it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner.” In Mahavir Singh and others v. Naresh Chandra and another AIR 2001 SC 134 the following observations have been made :- “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 prescribed under Order XLI, Rule 27, CPC. The Court is not, however, 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. Order XLI, Rule 27, CPC envisages certain circumstances when additional evidence can be adduced. They are : (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 C.R.No.6401 of 2009 (O&M) -6- requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The expression “to enable it to pronounce judgment” contemplates a situation when the appellate Court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands. 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. 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.” The discretionary power vested in the Court, therefore, is wide enough to take it to the circumstances which exist so as to permitting the parties before it to produce additional evidence. Order XLI, Rule 27, CPC, which contemplates leading of additional evidence, is extracted as under :- “27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -- C.R.No.6401 of 2009 (O&M) -7- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) 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 (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” From a perusal of the provisions of law and also from the observations of the Supreme Court it becomes clear that the petitioner has been prejudiced by the impugned order. The witness was directed to produce the relevant documents at the instance of the Court and, therefore, the petitioner under bona fide mistake that the document was correct to its character exhibited the same. It is quite plausible that the mistake was discovered subsequently and in any eventuality the documents being there would not prejudice the rights of either of the parties if the complete and correct version is permitted to come on C.R.No.6401 of 2009 (O&M) -8- record. Having regard to the aforesaid, the revision petition is accepted and the petitioner is permitted to produce the additional evidence in the shape of complete documents which reflects the correct status of the mutations. Petition allowed. 9.9.2010 (MAHESH GROVER) JUDGE dss