Civil Revision No. 7506 of 2010 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 7506 of 2010 (O&M) Date of Decision: November 3rd, 2011 The Jammu and Kashmir Bank Limited .... Petitioner Versus M/s Evershine Papers and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Alok Jagga, Advocate, for the petitioner. Mr. Namit Gautam, Advocate, for the respondents. VIJENDER SINGH MALIK, J. This is plaintiff's revision petition brought under the provisions of Article 227 of the Constitution of India for setting aside the order dated 11.8.2010 (Annexure P/1) vide which learned Additional District Judge, Ludhiana has dismissed the application filed by the plaintiff under Order 41 Rule 27 read with section 151 CPC for permission to lead additional evidence. The plaintiff had filed a suit for recovery of Rs.93,176.26 against the defendants. A credit facility was allowed to the defendants on 16.11.1981 on the defendants' executing various documents including a guarantee agreement by respondent No.5. As the defendants failed to adhere to the financial discipline and failed to keep the account regular, Civil Revision No. 7506 of 2010 2 .. the suit was filed after giving a legal notice to the defendants. The said suit has been dismissed by learned Civil Judge (Junior Division), Ludhiana vide judgment and decree dated 11.2.2004 for the twin reasons that the plaintiff failed to bring on record the statement of account duly attested under the Bankers' Books Evidence Act, 1891, (for short “the Act”) and that the suit has been filed beyond limitation. In the appeal preferred by the plaintiff, it filed an application under Order 41 Rule 27 read with section 151 CPC for permission to lead additional evidence. It is claimed that some balance confirmation letters and demand promissory note as also the statement of account were although placed on the file, but could not be proved by the plaintiff. It was claimed that documents were also a part of the record and nothing is to be prepared by the plaintiff, which could attract the criticism of fabrication subsequently. Learned Additional District Judge, Ludhiana, hearing learned counsel for the parties, has dismissed the application vide order dated 11.8.2010 (Annexure P1), primarily for the reason that the documents were very much within the knowledge of the plaintiff as they were on the record of the file and, therefore, it cannot be said that they could not be proved due to oversight or inadvertence. It was also observed that non production of evidence for lack of proper legal advice is no ground to allow additional evidence at the appellate stage. He has cited a decision of Hon`ble Supreme Court reported as 2008(1) Civil Court Cases 784. Aggrieved by the aforesaid order, the present revision petition has been filed. I have heard Mr. Alok Jagga, learned counsel for the Civil Revision No. 7506 of 2010 3 .. petitioner and Mr. Namit Gautam, learned counsel for the respondents. I have gone through the record carefully. Learned counsel for the petitioner has submitted that the balance confirmation letters were on the record and they could not be proved on account of fault of the bank officials. According to him, the statement of account was, although, there on the record, yet inadvertently the same could not be certified under the Act. He has submitted that the application under Order 41 Rule 27 CPC is not to be dismissed as a matter of routine. According to him, the court has to consider the merits of the plea taken therein. According to him, the court should not refuse to take additional evidence in case the applicant is the public institution and the public money is at risk of being lost. According to him, the documents sought to be produced by way of additional evidence have also to be taken into account for deciding whether it should be allowed to be proved by way of additional evidence. He has submitted that if the documents sought to be produced by way of additional evidence are such, the genuineness of which could not be doubted, additional evidence should be allowed. Learned counsel for the petitioner has further submitted that the additional evidence under the aforesaid provisions has also to be allowed if it enables the court to pronounce the judgment. Referring me to a decision of this court in Ashok Kumar Vs. Aman Kumar and others 2010(1) RCR (Civil) 937, learned counsel for the petitioner has submitted that the words 'enable it to pronounce judgment' as used in Order 41 Rule 27 CPC imply ability of the court to pronounce a judgment satisfactory to the mind of the court delivering it. According to him, in the Civil Revision No. 7506 of 2010 4 .. absence of the aforesaid documents, the judgment is not pronounced to the satisfaction of the court. According to him, the application in hand has been decided on technical grounds. He has also cited some decisions of this court and Hon`ble Supreme Court of India reported as Gurdial singh and others Vs. Mam Chand and others 2011(1) RCR (Civil) 690, Kasturi Lal Vs. Smt. Kaushalya Devi, 2010(4) Civ CC 625, M/s Zuber Rice Mills Vs. The Punjab State Coop. Supply and Marketing Federation Ltd. & Ors. 2009(5) RCR (Civil) 697, Arpana Sharma Vs. Rajinder Sharma and others 2009(3) RCR (Civil) 958 and North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (D) By LRs 2008(3) RCR (Civil) 165. Learned counsel for the respondents has submitted on the other hand that documents were within the knowledge of the plaintiff and had been produced along with the plaint. According to him, the plaintiff had been quite negligent in prosecuting its claim as its evidence had to be closed by the court by its order. He has further submitted that the petitioner did not file the application for additional evidence along with the grounds of appeal even and this speaks volumes about its intention to safe-guard the public money. Learned counsel for the respondents has further submitted that by dismissal of the suit, a valuable right has accrued to the respondents and if the application for additional evidence is allowed, that valuable right would be snatched from them. According to him, prejudice would certainly be caused to the respondents if this application is allowed. He has also added that if this additional evidence is allowed, the defendants- respondents would not be entitled to rebut the same, for which they Civil Revision No. 7506 of 2010 5 .. would have a right if this evidence was led by the plaintiff while leading its evidence before the trial court. He has cited before me a solitary decision of this court in Smt. Krishana Vs. Magha Ram and another 2010 (2) R.C.R. (Civil) 91, where party having knowledge of the documents from the very beginning, having failed to prove them before the trial court, was held not entitled to produce the same because by doing so, the said party is trying to fill up the lacuna left in the case. Additional evidence at the stage of appeal is to be received as per Order 41 Rule 27 CPC. As the facts of the case are, it cannot be said that the trial court refused to admit this evidence so as to bring the case within purview of clause (a) of sub rule (1) of Rule 27 Order 41. Clause (aa) requires the party seeking to produce additional evidence to establish that the evidence sought to be produced as additional evidence was either not within his knowledge or could not be produced by him at the time when the decree against him was passed inspite of the exercise of due diligence by him. It is not the case of the petitioner. Now remains clause (b) of sub rule (1) of Rule 27 CPC, which requires the appellate court to receive a document by way of additional evidence or allow a witness to be cross examined to enable it to pronounce judgment or for any substantial cause. The words 'to enable it to pronounce judgment' would mean that the court should be in a position to decide the case on merits and not on account of some gap in the evidence, which was left unfilled by a party when it was leading its evidence. In the absence of a document, vital to the case of the plaintiff, the court would dismiss the suit. This dismissal would, however, not mean pronouncement of judgment in the Civil Revision No. 7506 of 2010 6 .. sense in which it is mentioned in clause (b). The appellate court can also receive additional evidence in the form of document or examine a witness for any other substantial cause. It is argued by learned counsel for the respondents that the plaintiff could not complete its evidence and its evidence was closed by order of the court. The plaintiff is a bank and it is custodian of public money. The court has a duty to protect that money. The fact that the plaintiff could not complete its evidence would show that some of its officials were at fault of not bringing the evidence. If some official colludes with the debtor and does not bring some vital documents on record, the case of the bank should not be allowed to suffer by refusing to allow the additional evidence. Production of additional evidence, in such a case, would amount to substantial cause. In all the decisions cited by learned counsel for the petitioner, additional evidence has been allowed for similar reasons. Therefore, learned Additional District Judge, Ludhiana was not justified in declining the request of the petitioner for additional evidence. The revision petition is, consequently, allowed, subject to payment of Rs.10,000/- as costs, setting aside the impugned order, with the direction to learned Additional District Judge, Ludhiana to receive the evidence in question and give an opportunity to the defendants to lead that evidence in rebuttal. (VIJENDER SINGH MALIK) JUDGE November 3rd, 2011 som