& Sons Vs. Mirza Rafaullah Baig & Ors  Insc 187 (23 March 2004)
Lahoti & Dr. Ar. Lakshmanan.
out of S.L.P. (C) No.24319 of 2003) R.C. Lahoti, J.
for issuance of permanent preventive injunction was filed by the
plaintiff-respondents against the defendant-appellants. The suit was decreed by
the trial court. The decree has been maintained by the First Appellate Court as
also by the High Court. Feeling aggrieved, the defendant-appellants have filed
this appeal by special leave.
only submission made by Shri V.R. Reddy, the learned senior counsel for the
appellants, is that the First Appellate Court has committed a grave error of
law in rejecting the application filed by the appellants under Rule 27 of Order
XLI of the Code of Civil Procedure, 1908. It is submitted that if only the
application would have been allowed, the additional evidence sought to be
brought on record by the appellants would have made a material difference in
the findings arrived at by the First Appellate Court and the rejection of the
application has occasioned a failure of justice.
the First Appellate Court, the appellants sought to tender in evidence three
documents which are certified copies of public records. The application was
rejected by the Appellate Court forming an opinion that the application was a
bald application not setting out any facts relevant to the exercise of
jurisdiction by the Appellate Court by reference to any of the clauses (a), (aa)
and (b) of sub-rule (1) of Rule 27 of Order XLI. The prayer was reiterated by
the appellants in the High Court but it met with the same fate and for the same
V.R. Reddy, the learned senior counsel for the appellants, has pressed for the
admission of the same documents in additional evidence and for the consequent
remand to the First Appellate Court.
prayer has been vehemently opposed on behalf of the respondents by their
learned counsel, led by Shri Kapil Sibal, Senior Advocate. At one stage it was
submitted on behalf of the respondents that the exercise sought to be indulged
into by the appellants, would be one in futility inasmuch as the documents
which the appellants are proposing to tender in evidence are already available
on record. In view of this submission, an adjournment was sought for on behalf
of the appellants. It appears that during the pendency of this special leave
petition and between the two dates of hearing, the appellants moved the First
Appellate Court seeking return of the documents which were filed by them in the
First Appellate Court as accompanying the application under Order XLI, Rule 27
of CPC. The First Appellate Court returned the documents on 10.02.2004 and
thereafter these documents have been brought to the notice of this Court by
placing the same at the hearing. Shri Reddy, the learned senior counsel, has
been at pains to demonstrate that the documents already available on record
appear to be the similar certified copies but a minute comparative study of the
documents reveals that the contents of the documents which the appellants were
seeking to be brought on record were at variance with the documents available
on record and, therefore, the admission of these documents in additional
evidence was all the more necessary inasmuch as the Court shall have to hold
which of the two documents carried reliability and that would obviously have a
material bearing on the findings of fact to be arrived at.
Sibal, the learned senior counsel for the respondents, has vehemently urged
that Order XLI, Rule 27 of the CPC was an exception to the ordinary rule of
admitting evidence in civil cases.
In as much
as the exercise of discretion under Order XLI, Rule 27 of the CPC in favour of
the party seeking such exercise, has the result of almost re-opening the trial
which has otherwise stood concluded, care and caution is needed for exercise of
such discretion and the power cannot be exercised just for asking. It was
obligatory on the part of the appellants to have set out in the application such
necessary facts as would lay foundation for the applicability of one of the
grounds contemplated by the provision, failing which no fault can be found with
the discretion exercised by the First Appellate Court and upheld by the High
Court, submitted Shri Kapil Sibal, the learned senior counsel for the
19.03.2004, at the time of hearing, the learned counsel for the appellants,
produced for the perusal of the Court two out of three documents which were
sought to be tendered in evidence before the First Appellate Court and the
return whereof was secured by the appellants on 10.02.2004. Shri Reddy
submitted that the appellants are limiting their prayer to the admission of
these two documents in evidence and would not press for the third one. The two
documents have been placed in a closed cover after perusal by the Court.
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.
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 obtained by them as an additional evidence in Appellate Court.
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 de
hors the deficiency in the application filed by the appellants.
appeal is allowed. The Judgment and decrees passed by the High Court and the
First Appellate Court are set aside. The two documents, filed by the appellants
in this Court, shall be forwarded by the Registrar (Judicial) of this Court to
the First Appellate Court in a sealed cover. The documents shall be admitted in
evidence by the First Appellate Court, subject to payment of Rs.5000/- by way
of costs by the appellants. The First Appellate Court shall, after permitting
the production of such two documents by way of additional evidence, proceed to
hear and decide the appeal afresh and in accordance with law.
parting we make it clear that we have neither touched upon nor expressed any
opinion on the merits of the case. Only production of additional evidence has
been permitted. The First Appellate Court shall be free to form its own opinion
afresh on all the questions of facts and law arising for decision in the
parties, through their respective counsel, are directed to appear before the
First Appellate Court on 19.04.2004.