HIGH COURT OF JAMMU AND KASHMIR AT JAMMU C. Rev. 137/2007 Date of decision: 04.12.2008 ________________________________________________________ Kartar Chand and anr Vs. Sheelo Devi and ors Coram: MR. JUSTICE J. P. SINGH, JUDGE. Appearing Counsel: For Petitioner(s) : Mr. Bachan Lal Kalgotra, Advocate. For Respondent(s) :Mr. R.P. Sharma, Advocates. i) Whether approved for reporting in Press/Journal/Media : Yes ii) Whether to be reported in Digest/Journal :Yes _______________________________________________________________________________________ Petitioners-plaintiffs have filed this Revision Petition questioning Additional District Judge, Jammu’s order of August 16, 2007 dismissing their application under Order 41 Rule 27 of the Code of Civil Procedure whereby they had sought permission for one of the appellants to appear as witness in the case which, according to them, they could not do because of the inexperience and inadvertence of the counsel they had engaged in the trial court. Petitioners’ learned counsel, Shri Bachan Lal Kalgotra, submits that being rustic villagers, the petitioners had gone by the advice of their counsel in not appearing as their own witness during the trial of the case because the 2 counsel was under a misconception that the statement which one of them had made in the suit when the respondents had been set ex-parte would survive for consideration by the court despite lifting of ex-parte proceedings against the respondents, And that interest of justice would warrant providing an opportunity to the appellants to substantiate their claim to the property in dispute by appearing as a witness in the case. Per contra, Shri R. P. Sharma, submitted that petitioners had taken numerous opportunities to produce their evidence in the case and their non- appearance, being intentional, no further opportunity could be allowed to them to fill up the lacunae they had intentionally left in the case, and additionally because the provisions of Order 41 Rule 27 of the Code of Civil Procedure may not permit allowance of additional evidence. I have considered the submissions made at the Bar. Powers of the Appellate Court to pass orders for production of documents or allowance of other evidence, is circumscribed for its exercise only in three situations contemplated by Order 41 Rule 27 of the Code of Civil Procedure. For exercising its jurisdiction under Order 41 Rule 27 of CPC, the Appellate Court is thus required to arrive at a finding about the existence of one or the other contingencies contemplated by three clauses of Order 41 Rule 27 CPC. Conditions precedent for application of the provisions of Order 41 Rule 27 (1) (a) and (1) (aa) are, however, different from those of Order 41 Rule 27 (1) (b) CPC. In cases where provisions of Order 41 Rule 27 (a) CPC are invoked, the appellant seeking production of additional evidence will have to 3 satisfy the Court that the Court from whose decree the appeal has been preferred had refused to admit evidence which should have been admitted. In those cases where the provisions of Order 41 Rule 27 (1) (aa) CPC are invoked, the appellant seeking permission to produce additional evidence will have to establish that notwithstanding exercise of due diligence, the evidence which he wants to adduce, was not within his knowledge or could not, after exercise of due diligence be produced by him during the currency of the suit. On the other hand, when resort is contemplated to the provisions of Order 41 Rule 27 (1) (b) of CPC, the Appellate Court is required under law to consider the entire evidence on record and thereafter come to an independent finding as to whether or not any document which is sought to be produced by the appellant or any witness(s) proposed to be examined by the appellant, was necessary for the Appellate Court, to pronounce judgment. Power under Order 41 Rule 27 (b) of CPC may also be exercised by the Appellate Court in case it finds any other substantial cause, to permit production of additional evidence. Perusal of petitioners’ application indicates that the case projected by the petitioners in their application was not covered by the contingencies contemplated either by Rule 27 (1) (a) or Rule 27 (1) (aa) of Order 41 CPC. The case which the petitioners had set up in their application was rather based on one of the grounds which they had projected in their memo of appeal which, for facility of reference reproduced hereunder:- “…..The facts on record reveal that the plaintiffs’ intention was never to avoid witness box. The fact of the matter is that one of the plaintiffs had appeared as a witness and his statement was recorded when the case was proceeding ex- parte. And then the ex-parte proceedings were set aside and the plaintiffs proceeded further to lead evidence in the case 4 and inadvertently the counsel for the plaintiffs in the muffacil did not produce any plaintiff against as witness under the bonafide and honest impression that one of the plaintiff has appeared, of course, without visualizing the legal technicalities that the statement of a witness examined during separate proceedings may or may not be read in evidence. However, the plaintiffs are ready and prepared to appear in the case to face cross-examination of the defendant/respondents if the Hon’ble Court provides an opportunity to the appellants/plaintiffs to be heard. And as appellate court has unfettered powers under rule 27 order 41 of the rules and particularly under section 151 CPC to permit a party to an appeal to lead additional evidence. However, the objection that the appellants have not appeared as their own witnesses in the case was never raised at any stage by the respondent’s counsel, not even during final arguments. Had the counsel for respondents raised the objection at that stage the appellants certainly would have applied to the learned trial court under section 151 CPC to permit the appellants or any one of them to again appear in the witness box. The learned trial Judge has taken the appellants by surprise by invoking this almost sole ground to dismiss the case of the plaintiffs and thus punishing the plaintiffs without any dereliction or negligence on their part.” As the case projected by the petitioners seeking permission to lead additional evidence was infact one of the grounds which they had projected in the memo of appeal so the right course available to the Ist Appellate Court was to consider petitioners’ application at the time of consideration of the appeal itself for final disposal. This is so because it is only at the stage of consideration of the appeal that the Appellate Court would be in a better position to dwell on the plea which the petitioners had projected seeking permission to lead additional evidence. Such permission could be considered for its grant or refusal only if the Appellate Court had required any witness to be examined to enable it to pronounce judgment in the case or if it otherwise found, any substantial cause to have been made out by the petitioners for allowing them to appear as their own witness in the case. Petitioners-plaintiffs’ application has been rejected by learned Additional District Judge, Jammu on the grounds that Order 41 Rule 27 CPC would not permit filling up of any lacunae or gap in the evidence which the 5 petitioners, by omitting to appear as their own witness, had left in the case and that the application was belated because of its having been filed after about two years of filing of the appeal. In view of the above discussion, it is thus apparent that the Ist Appellate Court had erred in rejecting petitioners’ application on the ground that it had been filed belatedly. This is so because the plea which the petitioners had projected for the second time in the application under Order 41 Rule 27 CPC stood already raised by them in so many words in their memo of appeal. Rejection of petitioners’ application on the ground of delay cannot, thus, be justified. As appellants’ application was not covered by the contingencies contemplated by Order 41 Rule 27 (1) (a) and (aa) so the Appellate Court was required to consider it at the time when it had to take up the appeal for hearing on its merits. It has committed an error apparent on the face of record in dismissing petitioners’ application without going through the merits of the controversy raised in the suit. The order passed by the Ist Appellate Court cannot, therefore, sustain. For all what has been said above, allowing this Revision Petition, Additional District Judge, Jammu’s order of August 16, 2007 rejecting petitioners’ application is, accordingly, set aside and it is directed that the Ist Appellate Court shall take up the petitioners’ appeal for consideration along with their application seeking production of additional evidence and pass appropriate orders in view of the provisions of Order 41 Rule 27 of the Code 6 of Civil Procedure as may be warranted under law after hearing the parties on the appeal and the application. ( J. P. Singh ) Judge JAMMU: 04.12.2008 TILAK, Secy.