# Ashok Kumar & Anr v. Onkar Prasad & Anr

- **Citation:** Misc. Single No. 5359 of 2017
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2017-03-09
- **Case number:** Misc. Single No. 5359 of 2017
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-anr-v-onkar-prasad-anr-44330
- **Pages:** 6

## Headnote

Civil law-Original suit filed for cancelation
of registered will deed-on ground that
some imposter was projected as Bahadur
and
thum
impression
is
forged-Suit
dismissed-
Appeal
filed-In
appealApplication under Order 41 Rule 27 C.P.C.
filed-for opinion of fingerprint expert-as
they were not aware of legal issue and
their counsel never advised them for the
same-lack of proper legal advice-not a
substantial cause-W.P. dismissed.

Held, Admittedly, no application was moved by
the petitioners before the trial Court to seek
expert opinion. It cannot be said that the
petitioners with due diligence could not have
moved such an application to disapprove the
thumb impression of Maggal over the will in
question. In the instant case it was not as if the
additional evidence was required by the Court to
enable it to pronounce judgment and, therefore,
3-5 All. Ashok Kumar & Anr. & Onkar Prasad & Anr.
1505
additional evidence was sought to be adduced
for 'substantial cause' and in view of the settled
legal proposition, lack of proper legal advice
does not constitute a 'substantial cause' to let
the petitioners bring in additional evidence at
this belated stage. (Para 15) (E-9)

Cases cited:

1.K.R. Mohan Reddy v. Net Work Inc., (2007)
14 SCC 257

## Text

1504 INDIAN LAW REPORTS ALLAHABAD SERIES
Funeral
Expenses

10,000/-
Loss of Estate
Rs. 15,000/-
Total
Compensatio
n

24,84,808

18. Now coming to the question of
interest, we are of the opinion that in
normal circumstances 6 to 7% only is
admissible in motor accident claim's cases.
However, no straightjacket formula can be
applied and the interest shall be determined
and payable on the facts and circumstances
of each case. The deceased was the only
issue of his parents, and was, thus only
bread earner of the family and it is
unfortunate that he met with fatal accident
and the poor parents had to wait for 3-4
years for the award of compensation and
then more than 7 years before the high
court for enhancement on account of wrong
assessment of income at the end of the
tribunal in spite of settled legal position in
the
matter.
In
such
circumstances,
therefore, we find it proper to award
interest @ 7 % from the date of application
till date of actual payment made under the
award of the tribunal and @ 9% interest on
the enhanced compensation from the date
of payment till enhanced payment is made
under this order and also over and above
the amount if has remained unpaid till date
under the award of the tribunal.

19. Thus the compensation enhanced
from Rs. 6,89,366/- to Rs. 24,84,808/-, i.e.,
by Rs. 17,95,442/- as above shall be paid
@ 9% interest from the date of this
judgment till actual payment is made of the
enhanced compensation including the past
any amount if has remained unpaid, by the
respondents Insurance Company till the
actual enhanced compensation coupled
with unpaid amount, is paid.

18. In view of the above, this appeal
stands allowed in above terms modifying
the award of the Motor Accidents Claims
Tribunal.
----------
(2020)03-05ILR A1504
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.03.2017

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Misc. Single No. 5359 of 2017

Ashok Kumar & Anr. ...Petitioners
Versus
Onkar Prasad & Anr. ...Respondents

Counsel for the Petitioners:
Narendra Bahadur Singh

Counsel for the Respondents:
----

Civil law-Original suit filed for cancelation
of registered will deed-on ground that
some imposter was projected as Bahadur
and
thum
impression
is
forged-Suit
dismissed-
Appeal
filed-In
appealApplication under Order 41 Rule 27 C.P.C.
filed-for opinion of fingerprint expert-as
they were not aware of legal issue and
their counsel never advised them for the
same-lack of proper legal advice-not a
substantial cause-W.P. dismissed.

Held, Admittedly, no application was moved by
the petitioners before the trial Court to seek
expert opinion. It cannot be said that the
petitioners with due diligence could not have
moved such an application to disapprove the
thumb impression of Maggal over the will in
question. In the instant case it was not as if the
additional evidence was required by the Court to
enable it to pronounce judgment and, therefore,
3-5 All. Ashok Kumar & Anr. & Onkar Prasad & Anr.
1505
additional evidence was sought to be adduced
for 'substantial cause' and in view of the settled
legal proposition, lack of proper legal advice
does not constitute a 'substantial cause' to let
the petitioners bring in additional evidence at
this belated stage. (Para 15) (E-9)

Cases cited:

1.K.R. Mohan Reddy v. Net Work Inc., (2007)
14 SCC 257

2. N. Kamalam v. Ayyasamy, (2001) 7 SCC 503

3. U.O.I. v. Ibrahim Uddin, (2012) 8 SCC 148

(Delivered by Hon'ble Rakesh Srivastava,
J.)

1. Heard Shri Narendra Bahadur
Singh, learned counsel for the petitioners.

2. This petition under Article 227 of
the Constitution of India has been filed
challenging the order dated 21.2.2014
passed by the Additional District Judge,
Court No. 7, Faizabad in Civil Appeal
No.155 of 2011 (Ashok Kumar v. Onkar
Prasad) whereby and whereunder the
application on behalf of the plaintiffpetitioner herein purported to be made
under Order 41 Rule 27 of the Code of
Civil Procedure, 1908 (for short ''the Code')
has been rejected.

3. In order to appreciate the issue
requiring determination a few material facts
are stated as under: -

Maggal, the original plaintiff,
instituted a suit against Onkar Prasad and
Om Prakash, the defendants-respondents
herein, for cancellation of a registered will
deed dated 27.5.1982, executed by his
brother Bahadur in favour of Onkar Prasad
and
Om
Prakash,
the
defendants,
respondents herein. It was the case of the
original plaintiff that the Ram Narayan, the
father of the respondents got the will deed
executed in their favour by projecting some
imposter as Bahadur and that the alleged
thumb impression of Bahadur on the will
was a forged one. The suit was contested
by the defendants by filing their written
statement. During the pendency of the suit,
the original plaintiff died and in his place
the petitioners were substituted as his legal
representatives.

4. The trial Court after appreciating
the evidence on record dismissed the suit
by judgment and decree dated 12.8.2011.
Feeling aggrieved, the petitioners filed an
appeal before the Additional District Judge.
In the said appeal, the petitioners on
24.9.2013 moved an application under
Order 41 Rule 27 of the Code praying that
the opinion of fingerprint expert be called
for to establish that the thumb impression
on the will deed was not that of Bahadur. It
was stated that the petitioners were not well
versed with the law and were totally
dependent upon their counsel and that their
counsel did not advice them to seek the
opinion of a fingerprint expert. It was
alleged that while preparing the case their
counsel advised them to seek the opinion of
fingerprint expert, and accordingly, the
application was being moved.

5. To the said application objection
was filed on behalf of the respondents to
the effect that the petitioners cannot be
permitted to fill any lacuna in the case and
the application under Order 41 Rule 27 was
moved with a view to delay the decision of
the case.

6. By reason of the impugned order,
the Additional District Judge has rejected
the said application on the ground that the
case of the petitioner was not covered
1506 INDIAN LAW REPORTS ALLAHABAD SERIES
under Order 41 Rule 27 of the Code. The
relevant portion of the order is extracted
below: -

"izLrqr dsl esa izkFkhZ@vihykFkhZx.k ds
}kjk ,slh dksbZ fLFkfr ugha crk;h x;h gS ftlds
}kjk vkns'k 41 fu;e 27 flfoy izfdz;k lafgrk
ds izko/kku esa fu/kkZfjr 'krksZa esa ls dksbZ Hkh 'krZ
vFkok fLFkfr izdV ;k LFkkfir gksrh gksA voj
U;k;ky; ds le{k mHk; i{kksa }kjk vius&vius
lk{; izLrqr fd, x, FksA lk{;ksa ds vk/kkj ij
voj U;k;ky; usa fookfnr@iz'uxr olh;rukek
fnukad 27-05-1982 dks lgh ekuk] ftlesa
olh;ukek ds gkf'k;k xokgku }kjk U;k;ky; esa
lk{; nsdj mls lkfcr djk;k x;k gSA ,slh
fLFkfr esa] izLrqr vihy ds LRkj ij] ;g dRrbZ
vko';d izrhr ugha gksrk
fd fookfnr
olh;rukek ds lgh gksus ds rF; ds fcUnq ij
voj U;k;ky; ds }kjk vfUre fofu'p;u fd,
tkus ds mijkUr fcuk fdlh vkSfpR; ;k vk/kkj ds
vc olh;rukek ij yxs fu'kkuh vaxwBk dk feyku
fu"iknudrkZ ds fdlh vU; nLrkost ij cus
fu'kkuh vaxwBk ls djk;k tk;A voj U;k;ky; ds
le{k bl gsrq izkFkhZ@vihykFkhZx.k dks iw.kZ volj
FkkA ;g Hkh LFkkfir ugh fd;k x;k gS fd
izkFkhZ@vihykFkhZx.k us voj U;k;ky; ds le{k
olh;drkZ ds fu'kkuh vaxwBk dh dksbZ bDliVZ jk;
eaxk, tkus dk dksbZ izkFkZuki= nsdj iSjoh dh
x;h ftldks voj U;k;ky; us bUdkj dj fn;k
jgk gksA bl izdkj izLrqr izkFkZuki= foyEcudkjh
,oa fujk/kkj izrhr gksrk gS tks fujLr gksus ;ksX;
gSA"

7. Learned counsel for the petitioner
has submitted that it was only on account
of lack of legal advice that the petitioner
did not move an application before the trial
Court seeking the opinion of a fingerprint
expert. He has submitted that in the interest
of justice the application be allowed and
the opinion of fingerprint expert be called
for.

8. Under the scheme of the Code, it is
the trial Court, before whom, the parties are
required to adduce their evidence, oral or
documentary. However, under Section
107(1)(d), additional evidence can be
adduced before the appellate court in three
exceptional circumstances enumerated in
Rule 27 of Order 41 of the Code. Rule 27
of Order 41 reads 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--

(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."

9. Power of the appellate court to pass
any order under Rule 27 of Order 41 is
limited. Clauses (a), (aa) and (b) of sub-rule
(1) refer to three different situations. For
exercising its jurisdiction thereunder, the
appellate court must arrive at a finding that
one or the other conditions enumerated
3-5 All. Ashok Kumar & Anr. & Onkar Prasad & Anr.
1507
thereunder is satisfied. It is clear that
parties to the lis are not entitled to produce
additional evidence as a matter of course.
Before a party is permitted to produce
additional evidence under sub-clause (aa),
it has to show a good reason as to why the
evidence was not produced in the trial
Court. It is well settled that the parties
cannot be allowed to fill the lacunae at the
appellate stage.

10. In K.R. Mohan Reddy v. Net Work
Inc., (2007) 14 SCC 257 the Apex Court
has held as under:

"17. It is now a trite law that the
conditions precedent for application of clause
(aa) of sub-rule (1) of Rule 27 of Order 41 is
different from that of clause (b). In the event the
former is to be applied, it would be for the
applicant to show that the ingredients or
conditions precedent mentioned therein are
satisfied. On the other hand if clause (b) to subrule (1) of Rule 27 of Order 41 CPC is to be
taken recourse to, the appellate court is bound to
consider the entire evidence on record and
come to an independent finding for arriving at a
just decision; adduction of additional evidence
as has been prayed by the appellant was
necessary.
* * *

19. The appellate court should not
pass an order so as to patch up the weakness of
the evidence of the unsuccessful party before
the trial court, but it will be different if the court
itself requires the evidence to do justice between
the parties. The ability to pronounce judgment
is to be understood as the ability to pronounce
judgment satisfactorily to the mind of the court.
But mere difficulty is not sufficient to issue
such direction."

11. In N. Kamalam v. Ayyasamy, (2001) 7
SCC 503 the Apex Court while interpreting
Rule 27 of Order 41 of the Code, observed as
under:

"19. Incidentally, the provisions of
Order 41 Rule 27 have not been engrafted in
the Code so as to patch up the weak points in
the case and to fill up the omission in the court
of appeal -- it does not authorise any lacunae or
gaps in evidence to be filled up. The authority
and jurisdiction as conferred on to the appellate
court to let in fresh evidence is restricted to the
purpose of pronouncement of judgment in a
particular way." (emphasis supplied)

12. In Union of India v. Ibrahim Uddin,
(2012) 8 SCC 148 after a survey of a large
number of cases the Apex Court held as under:

"36. The general principle is that
the appellate court should not travel outside
the record of the lower court and cannot
take any evidence in appeal. However, as
an exception, Order 41 Rule 27 CPC
enables
the
appellate
court
to
take
additional
evidence
in
exceptional
circumstances. The appellate court may
permit additional evidence only and only if
the conditions laid down in this Rule are
found to exist. The parties are not entitled,
as of right, to the admission of such
evidence. Thus, the provision does not
apply, when on the basis of the evidence on
record, the appellate court can pronounce a
satisfactory
judgment.
The
matter
is
entirely within the discretion of the court
and is to be used sparingly. Such a
discretion is only a judicial discretion
circumscribed by the limitation specified in
the Rule itself. (Vide K. Venkataramiah v.
A. Seetharama Reddy, Municipal Corpn. of
Greater Bombay v. Lala Pancham, Soonda
Ram v. Rameshwarlal and Syed Abdul
Khader v. Rami Reddy.)

37. The appellate court should not
ordinarily allow new evidence to be
1508 INDIAN LAW REPORTS ALLAHABAD SERIES
adduced in order to enable a party to raise a
new point in appeal. Similarly, where a
party on whom the onus of proving a
certain point lies fails to discharge the
onus, he is not entitled to a fresh
opportunity to produce evidence, as the
court can, in such a case, pronounce
judgment against him and does not require
any additional evidence to enable it to
pronounce
judgment.
(Vide
Haji
Mohammed Ishaq v. Mohd. Iqbal and
Mohd. Ali and Co.)
* * *

39. It is not the business of the
appellate court to supplement the evidence
adduced by one party or the other in the
lower court. Hence, in the absence of
satisfactory reasons for the non-production
of the evidence in the trial court, additional
evidence should not be admitted in appeal
as a party guilty of remissness in the lower
court is not entitled to the indulgence of
being allowed to give further evidence
under this Rule. So a party who had ample
opportunity to produce certain evidence in
the lower court but failed to do so or
elected not to do so, cannot have it
admitted in appeal. (Vide State of U.P. v.
Manbodhan
Lal
Srivastava
and
S.
Rajagopal v. C.M. Armugam.)

40. The inadvertence of the party
or his inability to understand the legal
issues involved or the wrong advice of a
pleader or the negligence of a pleader or
that the party did not realise the
importance of a document does not
constitute a "substantial cause" within the
meaning of this Rule. The mere fact that
certain evidence is important, is not in itself
a sufficient ground for admitting that
evidence in appeal.
(emphasis supplied)

13. These are the broad principles to
be kept in view while dealing with an
application under Order 41 Rule 27 of the
Code.

14. In the present case, the contention
of the petitioners was that the will deed was
not executed by Bahadur and it did not
contain
his
thumb
impression.
The
petitioners had ample opportunity before
the trial Court to adduce evidence in
support of their contention. It was open to
them to call for an expert opinion but the
same was not done and their suit was
dismissed on the ground that the petitioners
were not able to establish their case. At the
appellate stage, in the application moved by
the petitioners under Order 41 Rule 27 of
the Code the only reason for adducing
additional evidence was that they were not
aware of legal issue and their counsel never
advised them to call for the opinion of
fingerprint expert.

15. Admittedly, no application was
moved by the petitioners before the trial
Court to seek expert opinion. It cannot be
said that the petitioners with due diligence
could not have moved such an application
to disapprove the thumb impression of
Maggal over the will in question. In the
instant case it was not as if the additional
evidence was required by the Court to
enable it to pronounce judgment and,
therefore, additional evidence was sought
to be adduced for ''substantial cause' and in
view of the settled legal proposition, lack
of proper legal advice does not constitute a
''substantial cause' to let the petitioners
bring in additional evidence at this belated
stage.

16. The burden of proving that the
will deed was concocted and forged was on
the petitioners and they ought to have taken
steps to have the document examined by a
fingerprint expert, to establish that the
3-5 All. Smt. Shanti Devi & Anr.Vs. Union of India & Ors.
1509
disputed thumb mark on the will, was
different from the admitted thumb mark of
Bahadur. They failed to do so. The
petitioners cannot be permitted to fill in the
lacuna in their case.

17. The lower appellate court has
elaborately considered the factual matrix
and held that the petitioners have not
satisfied any of the conditions stipulated
under Order 41 Rule 27 and hence they are
not entitled to produce additional evidence.
The Additional District Judge has rightly
dismissed the application moved on behalf
of the petitioners.

18. There is no infirmity or illegality
in the order impugned in this petition. The
petition is devoid of merit and is
accordingly dismissed.
----------
(2020)03-05ILR A1509
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.03.2020

BEFORE

THE HON'BLE PANKAJ KUMAR JAISWAL, J.
THE HON'BLE KARUNESH SINGH PAWAR, J.

Misc. Bench No. 6823 of 2020

Smt. Shanti Devi & Anr. ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Himanshu Raghave

Counsel for the Respondents:
C.S.C., A.S.G.

Civil law-Court cannot direct the State to
legislate-not
even
indirectly-power
exclusvely conferred on the legislators-no
writ can be issued-W.P. dismissed. (E-9)

Cases cited:

1. Pravasi Bhalai Sangathan Vs. U.O.I. reported
in AIR 2014 SC 1591

2. U.O.I. vs Prakash P. Hinduja & anr reported
in AIR 2003 SC 2692

3. Suresh Seth Vs Commissioner, Indore
Municipal reported in AIR 2006 SC 767

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard Sri Himanshu Raghav,
learned counsel for the petitioner, Sri
Rakumar
Singh,
learned
counsel
for
respondent no. 1, and Sri Manish Mishra,
learned counsel for respondent no. 2 and 3.

Through
this
writ
petition
the
petitioners are praying following relief:-

(i) Issue an appropriate writ,
order or direction thereby holding the
omission to make any provision for
enabling
by
State
Government
the
restoration of property of senior citizens
lost in deceptive transactions, ultra vires to
Sub-section (2) of Section 22 of The
Maintenance and Welfare of Parents and
Senior Citizens Act, 2007;

(ii) Issue a writ, order or
direction in the nature of mandamus or
likewise
thereby
directing
the
State
Government to restore the amount of
money lost in the execution of fraudulent
sale deed dated 15.01.2016 (Annexure No.
3) after recovering the same from the
private opposite parties.

2. Brief facts of the case are that the
petitioners are couple and senior citizens.
The petitioner no. 2 retired in the year 2015
as driver from Public Works Department
and as such he got certain post retiral dues.
One Naresh Chand sold a piece of land