# Raja Ram v. Ram Asrey

- **Citation:** (2024) 6 ILRA 108
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-06-11
- **Case number:** Second Appeal No. 135 of 1998
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raja-ram-v-ram-asrey-52117
- **Pages:** 21

## Headnote

Law
-
The
Code
of
Civil
Procedure, 1908 - Order 18, Rule 3(A) -
Party to appear before other witnesses,
Order - 41 , Rule -27 - Production of
additional evidence in Appellate court -
Applicant's application must be considered
during
appeal
hearing
to
determine
relevance of documents and evidence -
6 All. Raja Ram Vs. Ram Asrey
109
Additional evidence admissibility depends
on the appellate court's need for the
evidence to pronounce judgment or for
other substantial cause - true test is
whether
the
appellate
court
can
pronounce judgment without considering
additional evidence. (Para -25)

(B) Civil law - The Code of civil procedure
,1908 - Order-6, Rule-2 - pleadings to
state material facts and not evidence,
Order-6, Rule 3 - forms of pleadings ,
Order-6 , Rule-4 - particulars to be given
where necessary
-
No
set
form
of
pleadings - they should be precise, concise
and in accordance with Order-6, Rule-2
CPC - evidence can be adduced to prove
the Pleadings , but it cannot be adduced
without pleadings - nature of pleading
and evidence to prove it depends on the
facts and circumstances of the case. (Para
- 35)

(C) Evidence law - The Evidence Act ,1872
- Section 90-A - Presumption as to
electronic records five years old -
registration of the earlier two sale deeds
has drawn a presumption of execution of
those sale deeds by the persons, who have
executed the said sale deeds and in
accordance with law -held - no illegality
or error in it. (Para - 28)

Suit for mandatory injunction - claiming title on
the basis of the registered sale deed - not to
interfere
in
his
possession
and
raising
construction on plot in question - correction
deed executed - got registered during pendency
of the first appeal - First Appellate Court's
Decision - No perversity, illegality, or error in
recording correction deed - Granted time for
rebuttal - No rebuttal filed, allowing legal
consideration - maintainability of suit. (Para -
10,24,26,27)

HELD: - Court does not find any perversity,
illegality or error in the findings recorded by the
first appellate court based on pleadings of the
parties, evidence and material on record. The
second appeal has been filed on misconceived
and baseless grounds. (Para -46)

Second appeal dismissed. (E-7)
List of Cases cited:

## Text

_Characters 0–39,713 of 70,952. This is a partial read: ask again with offset=39713 for what follows._

108 INDIAN LAW REPORTS ALLAHABAD SERIES

"158.1. That the officers who are
invested with powers under Section 53 of
the NDPS Act are "police officers" within
the meaning of Section 25 of the Evidence
Act, as a result of which any confessional
statement made to them would be barred
under the provisions of Section 25 of the
Evidence Act, and cannot be taken into
account in order to convict an accused
under the NDPS Act.

158.2. That a statement recorded
under Section 67 of the NDPS Act cannot
be used as a confessional statement in the
trial of an offence under the NDPS Act."

49. In the present case, it is evident
that
the
authorities
themselves
have
violated
the
mandatory
provisions
contained in Rules of 2022 in the manner
detailed in preceeding paragraphs and
prima facie it appears that the aforesaid
violations of the Rules of 2022 will be a
strong factor against the accused persons
being held guilty.

50. Keeping in view the aforesaid
facts, coupled with the fact that the
applicant has no previous criminal history
and he is languishing in jail since
28.01.2024 and no material has been placed
with the counter affidavit to establish that
there is a reason to apprehend that in case
the applicant is released on bail, he would
again indulge in commission of similar
offence again and without making any
observation, which may affect the merits of
the case, I am of the view that the aforesaid
facts are sufficient for making out a case
for enlargement of the applicant on bail in
the aforesaid crime.

51. Accordingly, this bail application
stands allowed.

52. Let the applicant- Vimal Rajput
be released on bail in the aforesaid case on
furnishing a personal bond and two sureties
each in the like amount to the satisfaction
of magistrate/court concerned, subject to
following conditions:-

(i) the applicant shall not tamper
with the prosecution evidence;

(ii)
the
applicant
shall
not
pressurize the prosecution witnesses;

(iii) the applicant shall appear on
each and every date fixed by the trial court,
unless his appearance is exempted by the
learned trial court.
----------
(2024) 6 ILRA 108
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.06.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 135 of 1998

Raja Ram ...Appellant
Versus
Ram Asrey ...Respondent

Counsel for the Appellant:
Nirmal Tewari, Ambika Prasad, Deepak
Tewari, Deepak Tiwari

Counsel for the Respondent:
P.C. Agarwal, R.C. Gupta

(A)
Civil
Law
-
The
Code
of
Civil
Procedure, 1908 - Order 18, Rule 3(A) -
Party to appear before other witnesses,
Order - 41 , Rule -27 - Production of
additional evidence in Appellate court -
Applicant's application must be considered
during
appeal
hearing
to
determine
relevance of documents and evidence -
6 All. Raja Ram Vs. Ram Asrey
109
Additional evidence admissibility depends
on the appellate court's need for the
evidence to pronounce judgment or for
other substantial cause - true test is
whether
the
appellate
court
can
pronounce judgment without considering
additional evidence. (Para -25)

(B) Civil law - The Code of civil procedure
,1908 - Order-6, Rule-2 - pleadings to
state material facts and not evidence,
Order-6, Rule 3 - forms of pleadings ,
Order-6 , Rule-4 - particulars to be given
where necessary
-
No
set
form
of
pleadings - they should be precise, concise
and in accordance with Order-6, Rule-2
CPC - evidence can be adduced to prove
the Pleadings , but it cannot be adduced
without pleadings - nature of pleading
and evidence to prove it depends on the
facts and circumstances of the case. (Para
- 35)

(C) Evidence law - The Evidence Act ,1872
- Section 90-A - Presumption as to
electronic records five years old -
registration of the earlier two sale deeds
has drawn a presumption of execution of
those sale deeds by the persons, who have
executed the said sale deeds and in
accordance with law -held - no illegality
or error in it. (Para - 28)

Suit for mandatory injunction - claiming title on
the basis of the registered sale deed - not to
interfere
in
his
possession
and
raising
construction on plot in question - correction
deed executed - got registered during pendency
of the first appeal - First Appellate Court's
Decision - No perversity, illegality, or error in
recording correction deed - Granted time for
rebuttal - No rebuttal filed, allowing legal
consideration - maintainability of suit. (Para -
10,24,26,27)

HELD: - Court does not find any perversity,
illegality or error in the findings recorded by the
first appellate court based on pleadings of the
parties, evidence and material on record. The
second appeal has been filed on misconceived
and baseless grounds. (Para -46)

Second appeal dismissed. (E-7)
List of Cases cited:

1. Kalyan Singh Chouhan Vs C.P. Joshi, (2011)
11 SCC 786

2. Biraji @Brijraji & anr. Vs Surya Pratap &
ors.,(2020) 10 SCC 729,

3. Khudawand Haiyal Qaiyoom Vs Sabir, 2007
68 ALR 210

4. Ayyasami Gounder & ors. Vs T.S. Palanisami
Gounder, AIR 1996 Madras 237

5. Marappa Gounder & ors.. Vs Sellappa
Gounder & ors.; AIR 1985 Madras 183

6. A. Andisamy Chettiar Vs A. Subburaj Chettiar,
(2015) 17 SCC 713

7. Srinivas Raghavendrarao Desai (D) by LRS.
Vs V. Kumar Vamanrao @ Alok & ors., 2024 SCC
OnLine SC 226

8. Ram Jas & ors. Vs Surendra Nath & anr., AIR
1980 All 385

9. Smt. Sushila Devi Vs Smt. Jasoda Bai & ors.,
1981 All L.J.263

10. Ved Prakash Rastogi Vs Nagar Palika
Badaun, AIR 2008 All 27

11.
Arulmigu
Velukkai
Sri
Azhagiya
Singaperumal Devasthanam represented by its
Trustees & ors. Vs G.K. Kannan & Ors., 2020
SCC OnLine Mad 28257

12. K. Mahalakshmi Vs B. Yamuna, Second
Appeal No.232 of 2013

13. C. Sesha Reddy Vs T. Basavana Goud, AIR
2003 Karnataka 335,

14. Vivek Kumar Vs Dinesh Chandra Azad, Civil
Misc. Jurisdiction No.597 of 2016

15. Pravesh Kumari & ors. Vs Rishi Prasad &
ors., AIR 1986 Patna 315,

16. Swami Hari Harananda Giri Vs Yogoda
Satsangha Society of India & ors.; AIR 1991
Orissa 75
110 INDIAN LAW REPORTS ALLAHABAD SERIES
17. Maguni Dei Vs Gouranga Sahu & ors.; AIR
1978 Orissa 228

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard, Sri Ambika Prasad, learned
counsel for the defendant-appellant and Sri
Rajesh Tiwari, Advocate holding brief of
Sri P.C. Agarwal, learned counsel for the
plaintiff-respondents.

2. This second appeal has been filed
for setting aside the judgment and decree
dated 15.12.1997 passed by Judge, Small
Causes, Sitapur in Civil Appeal No.186 of
1988; Jagdeo Singh and Others Vs. Raja
Ram dismissing the Regular Suit No.174 of
1984; Ram Asrey and Others Vs. Raja Ram
and for maintaining the judgment and
decree of the trial court dated 31.10.1988.

3. The following substantial question
of law has been formulated in this second
appeal.

"Whether the judgment passed by
the first appellate court is perverse and
illegal."

4. Learned counsel for the defendantappellant submitted that no evidence could
have been adduced in regard to the
correction deed made during pendency of
appeal and sale deed executed by Manno
Devi in favour of Ram Chandra, minor son
of Babu Lal and sale deed executed by him
to Chhote Lal and Smt. Lalti Devi without
amendment in the plaint and the same
could not have been considered and no
presumption also could have been drawn in
regard to registered sale deed executed by
Smt. Manno Devi and Ram Sundar in the
years 1970 and 1973. He also submitted
that the sale deed by Chhote Lal was not
executed by him on his behalf and the
correction deed executed by him could not
have been considered in absence of
pleadings.
He
further
submitted
that
plaintiff-respondents appeared in evidence
as PW-2 in place of PW-1 in violation of
Order-18, Rule-3 (A) of Civil Procedure
Code, 1908 (here-in-after referred as CPC)
but the first appellate court has failed to
consider it. He further submitted that the
possession of defendant-appellant was
proved and the evidence of PW-1 and PW2 was contradictory in regard to plinth and
wall, which is against the plaintiffrespondents, whose possession was not
proved on account of thatch of Raja Ram in
east and west of his house and the land in
dispute after his thatch on the east. He
further submitted that the suit for injunction
without prayer for declaration was not
maintainable but the first appellate court
has failed to consider the same and allowed
the
appeal
without
considering
the
pleadings, evidence and material on record,
therefore the pleadings recorded by the first
appellate court are perverse and illegal,
thus not sustainable in the eyes of law and
liable to be set-aside.

5. Learned counsel for the defendantappellant
relied
on
Kalyan
Singh
Chouhan Vs. C.P. Joshi; (2011) 11 SCC
786, Biraji @ Brijraji and Another and
Another Vs. Surya Pratap and Others;
(2020) 10 SCC 729, Khudawand Haiyal
Qaiyoom Vs. Sabir; 2007 68 ALR 210,
Ayyasami Gounder and Others Vs. T.S.
Palanisami Gounder; AIR 1996 Madras
237, Marappa Gounder and Others. Vs.
Sellappa Gounder And Others; AIR
1985 Madras 183, A. Andisamy Chettiar
Vs. A. Subburaj Chettiar; (2015) 17 SCC
713 and Srinivas Raghavendrarao Desai
(D) by LRS. Vs. V. Kumar Vamanrao @
Alok and Others; 2024 SCC OnLine SC
226.
6 All. Raja Ram Vs. Ram Asrey
111

6. Learned counsel for the plaintiffrespondents submitted that the suit for
permanent injunction was rightly and in
accordance with law was filed and there
was no need of prayer for declaration.
There was no substantial denial of title and
there was only a colourable denial of title.
The objection in regard to prayer for
declaration had not been taken before the
court's below. The sale deed in question on
the basis of which the plaintiff-respondents
are owner have also not been challenged
and all the sale deeds are intact. Even
otherwise the earlier sale deeds of the land
in dispute have also not been challenged.
He further submitted that no perversity or
illegality in appellate court's order could be
shown. He further submitted that when the
aforesaid two sale deeds were filed, the
opportunity was granted on 26.08.1986 for
rebuttal but there was no rebuttal, therefore
the objection in this regard is not
sustainable in the eyes of law. He further
submitted that the evidence was rightly
adduced in accordance with law because
the
case
was
being
got
adjourned
repeatedly by the defendant-appellant and
on account of repeated adjournments
witnesses had to return, therefore the
objection of violation of Order-18, Rule 3
(A) is not sustainable. Even otherwise no
prejudice could be shown. The executor of
the sale deed appeared as PW-1 and stated
that the sale deed was executed by him on
his behalf and as power of attorney holder
of Smt. Lalti Devi. He further submitted
that the correction deed was executed at the
appellate stage and the same was filed,
which was taken on record with cost, which
was accepted but there was no rebuttal
despite opportunity and time granted or
challenge to the same. He further submitted
that
the
evidence
of
the
plaintiffrespondents was declined to be considered
on the ground of their age, whereas the
evidence
of
defendant-appellant
was
considered in similar circumstances by the
trial court which could not have been done
and the same has rightly been considered
by the first appellate court in accordance
with law.

7. On the basis of above, submission
of learned counsel for the plaintiffrespondents is that the first appellate court
has rightly and in accordance with law
allowed the appeal and set-aside the
judgment and decree passed by the trial
court and decreed the suit filed by the
plaintiff-respondents
of
permanent
injunction by means of the impugned
judgment and decree, which does not suffer
from any perversity, illegality or error. The
appeal has been filed on misconceived and
baseless grounds. The substantial question
of law formulated in the appeal does not
arise, therefore the appeal is liable to be
dismissed with cost.

8. Learned counsel for the plaintiffrespondents relied on Ram Jas And
Others Vs. Surendra Nath and Another;
AIR 1980 All 385, Smt. Sushila Devi Vs.
Smt. Jasoda Bai and Others; 1981 All
L.J. 263, Ved Prakash Rastogi Vs. Nagar
Palika Badaun; AIR 2008 All 27,
Arulmigu
Velukkai
Sri
Azhagiya
Singaperumal Devasthanam represented
by its Trustees and Others Vs. G.K.
Kannan and Others; 2020 SCC OnLine
Mad 28257, Judgement and Order dated
23.05.2019 passed in K. Mahalakshmi
Vs. B. Yamuna; Second Appeal No.232
of 2013 and M.P. Nos.1 of 2013 by High
Court of Madras, C. Sesha Reddy Vs. T.
Basavana Goud; AIR 2003 Karnataka
335,
Judgment
and
Order
dated
18.08.2016 passed in Vivek Kumar Vs.
Dinesh Chandra Azad; Civil Misc.
Jurisdiction No.597 of 2016 by High
112 INDIAN LAW REPORTS ALLAHABAD SERIES
Court of Judicature at Patna, Pravesh
Kumari and Others Vs. Rishi Prasad
And Others; AIR 1986 Patna 315, Swami
Hari
Harananda
Giri
Vs.
Yogoda
Satsangha Society of India and Others;
AIR 1991 Orissa 75 and Maguni Dei Vs.
Gouranga Sahu And Others; AIR 1978
Orissa 228.

9. I have considered the submissions
of learned counsel for the parties and
perused the records.

10. The plaintiff-respondents filed
suit for mandatory injunction for a
direction to the defendant-appellant not to
interfere in his possession and raising
construction on plot in question. The suit
was filed alleging therein that the plaintiffrespondents are owner and in possession of
the plot which is 25 ft. east to west and 45
ft. north to south. The said plot was
purchased by the plaintiff-respondents from
the general power of attorney holder of
Smt. Lalti Devi namely Chhote Lal through
registered sale deed dated 31.10.1979 and
since then they are in possession. The
defendant- appellant has no concern with
the land in dispute. The defendantappellant was not permitting the plaintiffrespondents to raise construction and
adamant to quarrel.

11. The suit was contested by the
defendant-appellant
by
filing
written
statement denying the allegations made in
the plaint. It was specifically stated in the
written
statement
that
the
plaintiffrespondents are not in possession of the
land in dispute since the statutory period of
limitation, as such suit for permanent
injunction is not maintainable and liable to
be dismissed. It was further averred that the
defendant-appellant is the owner of the plot
in dispute as well as in possession over it
since the time of his ancestors. It was
further alleged that Smt. Lalti Devi was
neither owner of the plot in question nor
has any concern with it and Chhote Lal is
not his power of attorney holder. It has
further been alleged that the land in dispute
is being used as courtyard and Sahan by the
defendant-appellant and the opening of the
house of the defendant-appellant and his
brothers is on it and there are masonry wall
and foundation made by the defendantappellant and masonry construction is in
existence. It has further been alleged that
since
the
defendant-appellant
is
in
possession, therefore the suit for injunction
is not maintainable. Smt. Lalti Devi was
neither the owner as alleged by the
plaintiff-respondents nor Chhote Lal his
agent and attorney and the owner of the
land in dispute was Devi Deen; real uncle
of the defendant-appellant, who was in
possession over it during his life time and
after his death defendant-appellant is
continuing to be in possession. Hence the
suit is not maintainable and liable to be
dismissed.

12. On the basis of pleadings of the
parties, five issues were framed by the trial
court. The issue no.1 was as to whether the
plaintiffs are owner and in possession of
the land in dispute described in the plaint.
Issue no.2 was regarding insufficiency of
valuation and court fees. Issue no.3 was as
to whether the suit is bad for non joinder of
necessary
parties
and
liable
to
be
dismissed. Issue no.4 was as to whether the
suit was time barred and the last and the
fifth issue was as to whether entitled for
any relief. The plaintiff-respondents filed a
copy of the sale deed dated 31.10.1979 and
the correction deed executed by Chhote Lal
during pendency of appeal before appellate
court and taken on record under Order-41,
Rule-27 and also certified copies of two
6 All. Raja Ram Vs. Ram Asrey
113
sale deeds to establish the title of Smt. Lalti
Devi and Chhote Lal, who executed sale
deed in favour of plaintiff-respondents. In
oral evidence Chhote Lal appeared as PW1, Ram Asrey as PW-2, Changa as PW-3
and Jarakhan as PW-4. The defendant-
appellant, in support of his claim filed
seven documents. The defendant-appellant
appeared himself as DW-1 and produced
Radhey Lal as DW-2 in oral evidence.
After evidence and considering the same,
suit was dismissed by the sixth Additional
Munsif, Sitapur by means of the judgment
and
decree
dated
31.10.1988.
Being
aggrieved by the said judgment and decree,
the plaintiff-respondents preferred civil
appeal, which has been allowed by means
of the impugned judgment and decree dated
17.12.1997 passed by the Judge, Small
Causes, Sitapur. Hence the instant second
appeal has been filed.

13. A plea has been raised that the
plaintiff-respondent no.1 had appeared as
PW-2 in place of PW-1 in violation of
Order-18, Rule-3(A). The Order-18, Rule3(A) provides that where a party himself
wishes to appear as a witness, he shall so
appear before any other witness on his
behalf has been examined, unless the
Court, for reasons to be recorded, permits
him to appear as his own witness at a later
stage. Therefore, if a party wishes to appear
as a witness he may appear before any
other witness is examined on his behalf and
if he, for any reason does not appear before
any other witness is examined on his
behalf, he may seek permission of the court
to appear at a later stage, which can be
allowed by the court for the reasons to be
recorded. The provision does not provide
any consequence of violation of rule. Even
otherwise if the party wishes to appear
subsequently or does not appear before
other witnesses on his behalf are examined,
he can be examined and the concerned
court can permit him, Therefore it can not
be said that the party, if chooses to appear
in evidence, has to appear mandatorily
before other witnesses on his behalf are
examined.

14. The High Court of Madras, in the
case of Ayyasami Gounder and Others
Vs. T.S. Palanisami Gounder (Supra),
has held that the object behind the
introduction of Order-XVIII, R.3-A of the
Code is to put an end to the mal-practices
indulged in by the litigants in examining
other witnesses first and later covering up
the gaps and lacunae in such evidence, by
the examination of the parties themselves
later, to substantiate the case. Therefore, in
cases where the party desires to examine
himself at a later stage, he should prior to
the commencement of the evidence on his
side, make an application in that behalf
before the court for such later examination.
Otherwise, Order-XVIII. R.3-A of the
Code will be honoured more in its breach,
rather than in its observance.

15. The High Court of Madras, in the
case of Marappa Gounder and Others.
Vs. Sellappa Gounder And Others
(Supra),
held
that
when
the
rule
contemplates permission to be granted by
Court for a party to a proceeding to be
examined at a later stage, it is indicative
that there is no total ban against parties
being examined after their witnesses are
put in the witness box. It has further been
held that in such of those cases wherein
without prior permission witnesses of the
party had been examined, and later on the
party wishes to appear as a witness, the
Court is duty bound to find out, whether on
the party being examined at that stage, it
would result in filling up any blanks or
lacunae left out in the evidence already
114 INDIAN LAW REPORTS ALLAHABAD SERIES
given, and whether wantonly he avoided
the witness box with ulterior motives, and
whether he was placed in such a situation
or circumstances which had disabled him
from being examined earlier etc. Unless
compelling strong circumstances which are
relevant germane had existed, permission
to a party to a proceeding to examine
himself after his witnesses had been
examined, ought not to be granted.

16. The High Court of Madras, in the
case of K. Mahalakshmi Vs. B.Yamuna
(Supra), has held that if the objection in
regard to Order-XVIII, Rule-3(A) of C.P.C.
had not been taken, it can not be taken for
the first time in the second appeal.

17. The Karnataka High Court, in the
case of C. Sesha Reddy Vs. T. Basavana
Goud (Supra), has held that a close
reading of the provisions of Rule 3A
indicates that the insistence of examination
of a party as a first witness is not an
inviolable rule and the rule itself provided
an exception.

18. The High Court of Patna, relying
on a Division Bench case of Pravesh
Kumari and others Vs. Rishi Prasad and
Others, A.I.R. 1986 Patna 315 (Supra) in
the case of Vivek Kumar Vs. Dinesh
Chandra Azad (Supra), has held that
Order 18 Rule 3A is directory and not
mandatory. But that does not mean that
Rule 3A need not be observed. It must be
observed. But its non-observance in all
cases should not lead to the extreme
penalty of expunging the evidence which
had already been recorded. Therefore,
where the plaintiff without obtaining leave
of the court under Rule 3A was examined
as a witness at a later stage after the
witnesses on his behalf had already been
examined and deposed in support of his
case and proved number of documents, his
evidence along with the exhibits which he
had proved should not be expunged for
non-observance.

19. A Division Bench of Orisa High
Court, in the case of Maguni Dei Vs.
Gouranga Sahu (Supra), has held that the
provisions of Order 18, Rule 3-A is
couched in affirmative terms. It prescribes
a certain procedure but imposes no penalty
for its non-observance and the rule itself
provides an exception and gives discretion
to the court to permit the examination of a
party at the later stage for reasons to be
recorded by it. It has further been held that
in interpreting a Code of Procedure, it
would be useful to keep in mind that the
rules of procedure are intended to aid the
administration of justice and not to hamper
it. They should be used as aids rather than
as obstacles. The relevant paragraph 10 to
12 are extracted here-in-below:-

"10. A directory provision is
generally affirmative in its terms. But
negative words are ordinarily used as a
legislative device to make a statute
imperative. If the requirements of a statute
which prescribes the manner in which
something has to be done are expressed in
negative language, that is to say, if the
statute enacts that it shall be done in a
particular and specified manner and in no
other, then those requirements are in all
cases absolute and the neglect to obey or
fulfil them exactly will invalidate the whole
proceedings, (See Craies on Statute Law,
Fifth Edition at p. 243). The provision of
Order 18, Rule 3-A is couched in
affirmative terms. It prescribes a certain
procedure but imposes no penalty for its
non-observance. The rule itself provides an
exception and gives discretion to the court
to permit the examination of a party at a
6 All. Raja Ram Vs. Ram Asrey
115
later stage for reasons to be recorded by it.
That indicates the anxiety of Parliament to
ensure that the subordinate courts should
not shut out evidence of a party which is
necessary for a just decision of the case. It
could not have been the intention of the
legislature to debar the court from
permitting examination of a party even
though the just decision of the case
demands it. The paramount consideration
of the judicial process being the doing of
justice to the parties, the Court can
examine a party at a later stage if it
considers the evidence essential despite
some negligence on the part of a party.

11. In interpreting a Code of
Procedure, it would be useful to keep in
mind that the rules of procedure are
intended to aid the administration of justice
and not to hamper it. They should be used
as aids rather than as obstacles. Lord
Buckmaster once pointed out:

"All rules of court are nothing but
provisions intended to secure proper
administration of justice. It is, therefore,
essential that they should be made to serve
and be subordinate to that purpose."

The Supreme Court in State of
Gujarat v. Ramprakash P. Puri, (1970) 2
SCR 875 indicated:

"Procedure has been described to
be a hand-maid and not a mistress of law,
intended to subserve and facilitate the
cause of justice and not to govern or
obstruct it. Like all rules of procedure, this
rule demands a construction which would
promote this cause."

As a general rule, evidence
should never he shut out. Parties should be
given full opportunity to give evidence if
the justice of the case demands it, However
negligent or careless may have been the
omission of the litigant to examine himself
at the commencement of the evidence of his
side, the same should be allowed if that can
be done without violence to the statute or
irreparable prejudice to the adversary.
There is no injustice if the other side can be
compensated in terms of costs.

The following passages from the
judgment of Bose, J. in the case of Sangram
Singh v. Election Tribunal, Kotah, AIR
1955 ,SC 425 (426) are very apposite and
may aptly be read here:

"Now a code of procedure must
be regarded as such. It is 'procedure',
something designed to facilitate justice and
further its ends: not a penal enactment for
punishment and penalties; not a thing
designed to trip people up. Too technical a
construction of sections that leaves no
room
for
reasonable
elasticity
of
interpretation should therefore be guarded
against (provided always that justice is
done to 'both' sides) lest the very means
designed for the furtherance of justice be
used to frustrate it.

Next, there must be ever present
to the mind the fact that our laws of
procedure are grounded on a principle of
natural justice which requires that men
should not be condemned unheard, that
decisions should not be reached behind
their backs, that proceedings that affect
their lives and property should not continue
in their absence and that they should not be
precluded from participating in them. Of
course, there must be exceptions and where
they are clearly defined they must be given
effect to, But taken by and large, and
subject to that proviso, our laws of
procedure should be construed, wherever
116 INDIAN LAW REPORTS ALLAHABAD SERIES
that is reasonably possible in the light of
that principle."

It is useful to quote the oft quoted
passage of Lord Penzance in 4 AC 404 in
this connection:

"Procedure is but the machinery
of the law after all the channel and means
whereby law is administered and justice
reached. It strongly departs from its office
when in place of facilitating, it is permitted
to obstruct and even extinguish legal rights,
and is thus made to govern when it ought to
subserve."

(Quoted from Aiyers Manual of
Law Terms and Phrases, 7th Edn. at page
644).

12. The harm and inconvenience
that will result from holding a provision to
be mandatory should be weighed against
the harm and inconvenience that will result
from holding the provision as directory.
The conclusion which results in greater
harm should be avoided as that could not
have been the intention of the legislature.
Courts have been set up to administer
justice and wide discretion has been vested
in them so that the paramount purpose
doing of justice to the litigating parties --
may not be frustrated. It is, therefore, a
cardinal rule not to interpret a provision in
a statute in a manner which abrogates
judicial discretion unless Parliament has
explicitly or by necessary intendment
curtailed or withheld the same. If the
provisions of the rule are held to be
mandatory, grave hardship and injustice
will be caused to the litigants. Without the
evidence of the party himself justice cannot
be done in most cases. If, however, the rule
is held to be directory, a party, no doubt,
will be put to some inconvenience but he
will not go without any remedy. If the party
examining
himself
at
a
later
stage
introduces new facts it will be open to the
opposite party to ask the court to recall the
witnesses for further cross-examination
under Rule 17 of Order 18, C.P.C. and he
can be compensated by costs."

20. The Orisa High Court, in the case
of Swami Hari Harananda Giri Vs.
Yogoda Satsangha Society of India and
Others (Supra), followed the aforesaid
Division Bench judgment of the said court
in the case of Maguni Dei v. Gouranga
Sahu; AIR 1978 Orissa 228.

21. Adverting to the facts of the
present case and perusal of the order sheet
indicates that the case was being got
adjourned
by
the
defendant-appellant
repeatedly and on 08.07.1987, when the
examination-in-chief of PW-1 Chhote Lal
was recorded, non was present for the side
of
defendant-appellant
for
crossexamination. However later on learned
counsel
for
the
defendant-appellant
appeared and without any objection or
protest requested for cross-examination,
which was allowed but since the time was
over, the case was fixed on 10.08.1987 for
cross-examination. The cross-examination
of PW-1 and the evidence of PW-2 was
recorded on 25.04.1988, who were crossexamined by the counsel of defendantappellant without any objection. However,
it appears that evidence of the PW-2 Ram
Asrey was recorded and cross-examined
again on 09.05.1988 and nothing has been
shown that any objection was raised in this
regard by the defendant-appellant at any
stage. Even otherwise learned counself or
the defendant-appellant has failed to show
as to what prejudice has been caused to the
defendant-appellant
by
recording
the
evidence of the plaintiff-respondents no.1
6 All. Raja Ram Vs. Ram Asrey
117
as PW-2 and evidence of Radhey Lal as
PW-1, and before recording the evidence of
other witnesses on behalf of the plaintiffrespondents, therefore this Court is of the
view that the judgment and decree passed
by the court's below can not be said to be
vitiated and set-aside on this ground. Thus,
the contention of learned counsel for the
defendant-appellant in this regard is liable
to be repelled and repelled accordingly.

22. One of the pleas of learned
counsel for the appellant is that correction
deed was made during pendency of appeal
and without amendment, the evidence
could not have been adduced in regard to
the same and considered. The plaintiffrespondents are claiming their title on the
basis of registered sale deed executed on
31.10.1979 by Shri Chhote Lal as power of
attorney holder of Smt. Lalti Devi, whereas
the Chhote Lal and Smt. Lalti Devi were
the owner of the property in dispute but it
was not disclosed in the sale deed that it
has been executed by Chhote Lal on his
own behalf also. He appeared as PW-1 in
the witnesses box and stated that he and
Lalti Devi had sold the land in dispute to
the plaintiff-respondents and they also
handed over the possession of the land in
dispute to them. Smt. Lalti Devi was the
sister-in-law (Bhabhi) of Chhote Lal. The
evidence of PW-1 Chhote Lal indicates that
neither any question was put in the crossexamination in regard to non sale of the
land in dispute on behalf of Chhote Lal nor
anything could be extracted to show that he
had not executed the sale deed on his
behalf. However during pendency of the
appeal a correction deed dated 30.08.1989
was executed by Chhote Lal to the effect
that inadvertently in the sale deed executed
on 31.10.1979 on his own behalf was left to
be incorporated, whereas the said sale deed
was executed by him on his own behalf and
as power of attorney holder of Smt. Lalti
Devi and accordingly the stamp duty and
the registration fees were paid, therefore
the correction deed is being executed and
got registered. Once the correction deed
was executed and got registered, the
original deed would stand corrected from
the date of its execution and registration.

23. The correction deed dated
30.08.1989 was filed before the appellate
court through application Paper No.15-C/2
for admitting a document filed as per list
16-C/1. The objection to the application
was filed as Paper No.24-C/2. The
appellate court, after considering the
application and the objection, allowed the
same by means of the order dated
16.09.1993 and took the correction deed on
record under Order-41, Rule-27 CPC and
by the same order, the first appellate court
granted time to file rebuttal, if any, but
admittedly no rebuttal was filed by the
defendant- appellant, therefore now, at this
stage, no objection can be raised by the
appellant in this regard. The said correction
deed was taken on record on the ground
that the document itself came into existence
after the appeal was filed and not earlier.
While admitting the document, it was also
observed that the admissibility of a
document does not mean necessarily that
its effects will be accepted down the throat
in all circumstances and points are still to
be threshed out finally at the time of
arguments.

24. Order-41, Rule-27 CPC provides
production of additional evidence in
appellate court in three contingencies.
Firstly, if the court from whose decree the
appeal is preferred has refused to admit
evidence which ought to have been
admitted. Secondly, the party seeking to
produce additional evidence, establishes
118 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Thirdly, 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 the
correction deed was executed and got
registered during pendency of the first
appeal, therefore, it could not have been
available and produced before the trial
court before passing of the judgment and
decree by the trial court, therefore it can not
be said that the first appellate court had
erred or done any illegality or perversity in
taking the same on record. However while
taking on record the opportunity of rebuttal
was afforded to the defendant-appellant but
neither any rebuttal was filed nor the said
order was challenged, therefore now he can
not raise any objection in this regard. Even
otherwise,
learned
counsel
for
the
defendant- appellant has failed to show any
illegality, error or perversity in the order
passed by the first appellate court under
Order-41, Rule-27 CPC.

25. The Hon'ble Supreme Court, in
the case of A. Andisamy Chettiar Vs. A.
Subburaj
Chettiar
(Supra),
has
considered the provisions of Order-41,
Rule 27 and held as under:-

11. Under the scheme of the Code
of Civil Procedure, 1908 (for short "the
Code") whether oral or documentary, it is
the trial court before whom parties are
required to adduce their evidence. But in
three exceptional circumstances additional
evidence can be adduced before the
appellate court, as provided under Section
107(1)(d) read with 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) Wherever additional evidence
is allowed to be produced by an appellate
court, the court shall record the reason for
its admission." (emphasis supplied)

12. From the opening words of
sub-rule (1) of Rule 27, quoted above, it is
clear that the parties are not entitled to
produce additional evidence whether oral
or documentary in the appellate court, but
for the three situations mentioned above.
6 All. Raja Ram Vs. Ram Asrey
119
The parties are not allowed to fill the
lacunae at the appellate stage. It is against
the spirit of the Code to allow a party to
adduce
additional
evidence
without
fulfilment of either of the three conditions
mentioned in Rule 27. In the case at hand,
no application was moved before the trial
court seeking scientific examination of the
document (Ext. A-4), nor can it be said that
the plaintiff with due diligence could not
have moved such an application to get
proved the documents relied upon by him.
Now it is to be seen whether the third
condition i.e. one contained in clause (b) of
sub-rule (1) of Rule 27 is fulfilled or not.

13. In K.R. Mohan Reddy v. Net
Work Inc. [K.R. Mohan Reddy v. Net Work
Inc., (2007) 14 SCC 257] this Court has
held as under: (SCC p. 261, para 19)

"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."

14. In North Eastern Railway
Admn. v. Bhagwan Das [North Eastern
Railway Admn. v. Bhagwan Das, (2008) 8
SCC 511] this Court observed thus: (SCC
pp. 515-16, para 13)

"13. Though the general rule is
that ordinarily the appellate court should
not travel outside the record of the lower
court and additional evidence, whether
oral or documentary is not admitted but
Section 107 CPC, which carves out an
exception to the general rule, enables an
appellate court to take additional evidence
or to require such evidence to be taken
subject to such conditions and limitations
as may be prescribed. These conditions are
prescribed under Order 41 Rule 27 CPC.
Nevertheless, the additional evidence can
be admitted only when the circumstances
as stipulated in the said Rule are found to
exist."

15. In N. Kamalam v. Ayyasamy
[N. Kamalam v. Ayyasamy, (2001) 7 SCC
503] this Court, interpreting Rule 27 of
Order 41 of the Code, has observed in para
19 as under: (SCC p. 514)

"19. ... 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 the 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."

16. In Union of India v. Ibrahim
Uddin [Union of India v. Ibrahim Uddin,
(2012) 8 SCC 148 : (2012) 4 SCC (Civ)
362] this Court has held as under: (SCC p.
171, para 49)

"49.