Civil Revision No.2764 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.2764 of 2011(O&M) Date of Decision: May 2, 2011 Sanjay Kumar and another .....Petitioners v. Jaspal Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.J.S.Hooda, Advocate for the petitioners. Mr.A.K.Bishnoi, Advocate for respondent no.1-Caveator. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.11166-CII of 2011 Application is allowed subject to all just exceptions. Civil Revision No.2764 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for quashing the impugned order dated 5.4.2011, passed by learned Additional District Judge, Faridabad, vide which application filed by petitioners seeking permission to adduce additional evidence has been declined. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned appellate Court. Facts relevant for the decision of present revision petition are that a suit was filed by respondent no.1-plaintiff against Smt.Vimla Maggu, defendant no.1, predecessor in interest of present petitioners, who died during the pendency of the appeal and respondents-defendants no.2 to 4, to whom the property in dispute was transferred by way of sale by Smt.Vimla Maggu subsequently, on the brief allegation that Smt.Vimla Maggu executed an agreement to sell dated 20.8.2003 in favour of respondent Civil Revision No.2764 of 2011(O&M) -2- no.1-plaintiff for a sale consideration of `7,08,000/- and had also agreed to execute the sale deed in his favour within 60 days from the date of execution of the aforesaid agreement and on her refusal to get the sale deed executed, as per agreement, the present suit for specific performance of the said agreement has been filed. In the written statement filed by defendant no.1, it was disclosed that she had already sold the suit property to respondents- defendants no.2 to 4 vide registered sale deed No.9867 dated 30.11.2004, and hence, respondents-defendants no.2 to 4 were impleaded as parties on such disclosure. Defendant no.1 while admitting the execution of the agreement to sell and receipt of `55,000/- as earnest money had taken the plea that it was plaintiff who was not ready and willing to perform his part of the contract and as defendant no.1 was in need of money, she had to sell the suit property to her daughters. Respondents-defendants no.2 to 4 had taken the plea of bona fide purchasers of the suit property for consideration. Plea has also been taken that the transfer was made in their favour, after the plaintiff had given “No Objection Certificate” to HUDA authorities and only after the requisite permission for transfer was granted by HUDA authorities to defendant no.1 to sell the suit property in favour of respondents-defendants no.2 to 4. Issues were framed. Parties adduced evidence in support of their respective claims. Learned trial Court decreed the suit filed by respondent no.1- plaintiff against which appeal was filed by predecessor-in-interest of present petitioners. During pendency of appeal, an application was filed by petitioners for adducing additional evidence. It has been contended that no objection certificate was submitted by respondent-plaintiff himself before HUDA authorities, which is very essential for the decision of present case. It has been further contended that the same was in the custody of respondents-defendants no.2 to 4, however, no evidence was adduced by respondents-defendants no.2 to 4 as they were proceeded ex parte and that predecessor-in-interest of present petitioners, i.e., their mother was not in the knowledge of the said certificate, hence, it is contended that permission may be granted to them to produce the said certificate in additional evidence. The said plea has been contested by respondent no.1-plaintiff. Civil Revision No.2764 of 2011(O&M) -3- The said application was declined by learned first appellate Court vide impugned order by observing that the appellants were well aware about existence/non-existence of the document from the very beginning and objection regarding the NOC was raised in the written statement filed by respondents-defendants no.2 to 4 and hence, petitioners-appellants are having no right to lead additional evidence. It has been contended by learned counsel for the petitioners that their mother was an old lady and that document was not in her knowledge and that the same was in the knowledge of respondents-defendants no.2 to 4 only, who are her daughters, who did not pursue the case later on and proceeded ex parte and did not lead any evidence and hence, mother of petitioners could not produce the said document, which is very essential for decision of present controversy. On the other hand, it has been contended by learned counsel for respondent no.1-plaintiff that no such NOC was given by respondent no.1- plaintiff to respondents no.2 to 4 or to the HUDA authorities and that the plea was already taken in the written statement filed by respondents- defendants no.2 to 4 and hence, it is contended that petitioners-appellants are having no right to adduce additional evidence. Law on the point has been well settled by Hon'ble Apex Court in Mahavir Singh v. Naresh Chandra, 2001(1) RCR (Civil) 454: 2001(2) Civ.C.C.708: 2001 AIR (SC) 134, relevant paragraph of which reads as under:- “5. 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 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 Civil Revision No.2764 of 2011(O&M) -4- 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 equipment 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 Civil Revision No.2764 of 2011(O&M) -5- 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 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, 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 Civil Revision No.2764 of 2011(O&M) -6- notice the decision of this Court in Gurdev Singh & Ors. vs. Mehnga Ram & Others., 1997 (6) SCC 507: 1997 (3) RCR (Civil) 712 (SC), 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.” If ratio of the said decision is applied to the facts of present case, this Court is of the view that petitioners-appellants are having no right to adduce evidence as the plea was already taken by subsequent vendees in the written statement filed by them. Petitioners are legal representatives of their deceased mother. Subsequent vendees are daughters of mother of petitioners, i.e., defendant no.1. Agreement was executed between defendant no.1-plaintiff and mother of present petitioners. The dispute is that plaintiff was ready and willing to perform his part of the contract, however, before execution of the sale deed in favour of plaintiff, the property was transferred by defendant no.1 in favour of her daughters, i.e., respondents-defendants no.2 to 4 for consideration. Respondents-defendants no.2 to 4 are not contesting this suit. They were proceeded ex parte. They also did not file any appeal. Appeal was filed only by defendant no.1 and after her death, present petitioners were impleaded as her legal representatives. As per written statement filed by respondents-defendants no.2 to 4, it was pleaded that respondent no.1-plaintiff had filed NOC before HUDA authorities which is being denied by respondent no.1-plaintiff. Hence, the evidence now sought to be adduced under Order 41 Rule 27 of the Code of Civil Procedure, if any, was already in the knowledge of predecessor-in-interest of present petitioners, i.e., their mother and respondents-defendants no.2 to 4, who are daughters of defendant no.1. Merely on the ground that subsequent vendees were proceeded ex parte and did not adduce any evidence, it cannot be said that petitioners, who are legal heirs of defendant no.1, are having right to adduce additional evidence to prove the plea of respondents-defendants no.2 to 4, who are already Civil Revision No.2764 of 2011(O&M) -7- proceeded ex parte by learned trial Court. Hence, in view of aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned appellate Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law has been well settled by Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. 2.5.2011 (Ram Chand Gupta) meenu Judge