# Ram Kumar v. Gulshan Babau & Ors

- **Citation:** (2022) 2 ILRA 271
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-22
- **Case number:** Matters Under Article 227 No. 20302 of 2021
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kumar-v-gulshan-babau-ors-48114
- **Pages:** 4

## Headnote

A. Code of Civil Procedure, 1908 -
Order XLI Rule 27 - The application
moved under Order XLI Rule 27 CPC before
the appellate court cannot be rejected by
taking hyper technical view of the matter.
Sangram Singh v Election Tribunal AIR 1955
SC 425 followed, wherein it was observed
that CPC must be regarded as such i.e.
something designed to facilitate justice and
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 furtherance of justice
be used to frustrate it.

B. Section 65 Evidence Act- Xerox copy of
certificate of registration of Trade Mark, in the
face of the objections raised by the defendant,
could not have been marked as an exhibit.

Petition allowed. (E-12)

## Text

2 All. Ram Kumar Vs. Gulshan Babau & Ors.
271
(2022)02ILR A271
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.02.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Matters Under Article 227 No. 20302 of 2021

Ram Kumar ...Petitioner
Versus
Gulshan Babau & Ors. ...Respondents

Counsel for the Petitioner:
Anurag Narain, Pawan Kumar Verma

Counsel for the Respondents:
Vijay Kumar

A. Code of Civil Procedure, 1908 -
Order XLI Rule 27 - The application
moved under Order XLI Rule 27 CPC before
the appellate court cannot be rejected by
taking hyper technical view of the matter.
Sangram Singh v Election Tribunal AIR 1955
SC 425 followed, wherein it was observed
that CPC must be regarded as such i.e.
something designed to facilitate justice and
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 furtherance of justice
be used to frustrate it.

B. Section 65 Evidence Act- Xerox copy of
certificate of registration of Trade Mark, in the
face of the objections raised by the defendant,
could not have been marked as an exhibit.

Petition allowed. (E-12)
(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

(Oral)

1. Heard learned counsel for the
petitioner and learned counsel appearing on
behalf of the respondent and perused the
order impugned dated 09.08.2021 passed
by the leaned Additional District Judge,
Court No.7, Hardoi, in Civil Appeal no.11
of 2019: Ram Kumar Vs. Gulshanbabu and
others.

2. It is the case of the petitioner that a
suit for specific performance of contract
was filed by the respondent nos.1 and 2
against the petitioner and they impleaded
their brother i.e. the respondent no.3 herein
as defendant no.2 in the said suit. The
plaintiff's case before the learned trial court
was that the defendant no.1's mother Smt.
Ram Kali had entered into an agreement to
sell the property in dispute for an amount
of Rs.50,000/-, out of which Rs.30,000/-
was given to her and agreement to sell was
registered with the understanding that the
remaining amount shall be given to her
within three years by the plaintiffs and if it
is given within time, the mother of the
defendant no.1 would execute the sale
agreement in their favour. However,
despite several attempts being made by the
plaintiffs, the mother of the defendant no.1
did not execute the sale agreement in their
favour.

3. The petitioner appeared in the Suit
and filed written statement before the
learned trial court and specifically denied
the plaint of the plaintiff stating that
Smt.Ram Kali was not the wife of
Shambhu Dayal and she had never
inherited the property of Shambhu Dayal.
The name of the mother of the petitioner
was Smt. Shanti Devi and the petitioner
along with Smt. Shanti Devi had jointly
inherited the property of Shambhu Dayal.
No agreement to sell was ever executed by
Smt. Shanti Devi. In fact an agreement to
272 INDIAN LAW REPORTS ALLAHABAD SERIES
sell with regard to the property of the father
of the petitioner was executed by one Smt.
Ram Kali who was the mother of plaintiffs
themselves. Despite such specific claim
being made in written statement, no issue
was framed by the learned trial court as to
whether Smt. Ram Kali and Smt. Shanti
Devi were one and the same person and
Smt. Shanti Devi is the widow of Shambhu
Dayal who has inherited the property along
with the petitioner was also known by the
name of Ram Kali. The Suit was decreed in
favour of the plaintiffs. The petitioner filed
an Appeal.

4. In the Appeal, the petitioner filed
an application for bringing on record the
additional evidence under Order 41 Rule 27
C.P.C. giving a proper explanation for
delay caused in bringing such evidence on
record. Such evidence was with regard to
the khatauni. The petitioner is a resident of
Sandi and he tried to find out the khatauni
at Hardoi, but the documents were found at
Bilgram. The Khatauni was discovered
much later after the suit was decreed. A
copy of the khatauni issued in 2011 is
important for decision of the Appeal, as it
shows that Smt. Shanti Devi as widow of
Late Shambhu Dayal had inherited the
agricultural property of her husband along
with
the
petitioner
and
this
would
substantiate the version of the written
statement filed by the petitioner.

5. It has been submitted that learned
Appellate Court has rejected the application
under Order 41 Rule 27 C.P.C. on the
ground of delay without looking into the
reason for such delay and without looking
into clause (c) of Order 41 Rule 27 Clause
1, where it has been clearly stated that 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. Since the entire case of the
petitioner/ appellant both before the trial
court and the Appellate Court is that his
mother Smt. Shanti Devi w/o Shambhu
Dayal has never executed agreement to sell
but the plaintiffs' own mother Smt. Ram
Kali has executed the agreement to sell in
favour
of
the
plaintiffs,
the
entire
controversy before the Appellate Court
rests upon such document to be filed, and
the application of the petitioner for
submitting additional evidence has been
rejected arbitrarily.

6. Learned counsel for the respondent
has read out the order of the learned trial
court which had been challenged in the
Appeal by the petitioner and has pointed
out that no documentary evidence was filed
by the petitioner to substantiate his claim
i.e. mother's name was Smt. Shanti Devi
and not Smt. Ram kali. He had submitted
before the learned trial court that his
educational certificates like his High
School and Intermediate Certificates had
the name of his mother Smt. Shanti Devi
printed thereon, but such High School and
Intermediate
Certificates
have
been
misplaced by him. Learned trial court has
therefore relied upon the documentary
evidence filed by the plaintiffs which
showed the receipts issued by the Nagar
Nigam for water tax and house tax showing
the name of Smt. Ram Kali w/o Shambhu
Dayal. In view of the sub-clause (a) and (b)
of Clause 1 of Order 41 Rule 27, the
learned Appellate Court has rightly rejected
the application of the petitioner.

7. In rejoinder, learned counsel for the
petitioner
has
placed
reliance
upon
paragraph-16 to 18 of the judgement
2 All. Ram Kumar Vs. Gulshan Babau & Ors.
273
rendered by Hon'ble Supreme Court in
Shalimar Chemical Works Limited Vs.
Surendra Oil and Dal Mills (Refineries)
and others, 2010 8 SCC 423.

8. This Court has considered the
aforecited judgment. The Appellant therein
was a Company and from the year 1945 it
was
engaged
in
the
business
of
manufacture and sale of high grade coconut
oil used for cooking and manufacturing of
other
various
toilet
products
under
distinctive trade mark "Shalimar". The
trade mark "Shalimar" was being infringed
by the respondents who were marketing
their
products
by
using
appellant's
registered trade mark. It thus filed a Suit
seeking permanent injunction restraining
defendants from marketing or offering for
sale edible oil products under the trade
mark "Shalimar". In course of the trial, the
appellant
produced
before
the
court
photocopies of registration certificates
under the Trade and Merchandise Marks
Act,
1958
along
with
the
related
documents. Such photocopies were marked
by trial court as Exhibits A1 to A5 "subject
to objection of proof and admissibility".

The Suit thereafter was dismissed by
the trial court holding that available
evidence on record did not establish the
claim of the plaintiff's case because the
appellant did not file the trade mark
registration certificate in their original.
Against the decree of the learned trial
court, the appellant filed an Appeal before
the Andhra Pradesh High Court, wherein it
also filed an application under Order 41
Rule 27 for accepting the originals of the
trade mark registration certificates and
allied documents as additional documents
under Order 41 Rule 7 C.P.C. Learned
Single Judge of the High Court allowed the
application and also the Appeal. The
respondent filed an intra-court Appeal. The
Division Bench took a view that there was
no occasion or justification for admitting
the
original
trade
mark
registration
certificates at the appellate stage as
additional evidence. The High Court
enumerated three circumstances as given in
Order 41 Rule 27 for production of
additional evidence. It thereafter noted that
neither of the three conditions was satisfied
in the case of the appellants. The original
documents were all along in possession of
the plaintiff. At no stage the trial court had
refused to admit them in evidence and since
they were all along in the possession of the
plaintiff therefore it could not fill up the
lacunae in its case by producing the same
in the Appellate Court. Allowing the
application at the Appellate stage would
cause prejudice to the defendants also.

The Supreme Court considered the
arguments raised by learned counsel for the
appellant and the judgements relied upon
by him more so in case of Sangram Singh
Vs. Election Tribunal, AIR 1955 SC 425,
wherein it was observed that the Code of
Civil Procedure must be regarded as such
only a Code of Procedure i.e. "something
designed to facilitate justice and 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."

The Court considered the fact that
serious mistake were committed at all
stages, the trial court should not have
marked as exhibits the xerox copies of the
certificate of registration of trade mark in
face of the objection raised by the
274 INDIAN LAW REPORTS ALLAHABAD SERIES
defendants. It should have declined to take
them on record as evidence rather than
leaving the issue of admissibility of those
copies open and hanging, by marking them
as exhibits "subject to objection of proof
and admissibility", the appellant was lulled
into complacency. Had those xerox copies
been rejected by trial court, the appellant
would have made all efforts to file them
before the learned trial court itself. It
observed that the Division Bench of the
High Court erred in holding that production
of additional evidence was not permissible
under Order 41 Rule 27 as such additional
documents were liable to be taken on
record in the interest of justice.

9. Having considered the judgment
rendered by Supreme Court in the matter
and also the fact as pleaded in this petition
including the observations made by the trial
court with regard to the failure of
defendants to produce any evidence to
show that his mother's name was Smt.
Shanti Devi and not Smt. Ram Kali at the
stage of trial, but also considering the fact
that khatauni in question could not be
available to the petitioner because of it
being deposited in a wrong Record Room
and it being essential for deciding main
controversy, this Court is of the opinion
that the Appellate Court has taken a hyper
technical view of the matter by rejecting
the application of the petitioner.

10. The order dated 09.08.2021
passed on Paper No.14-Ga by the Appellate
Court is set aside but the Appellate Court
while deciding the application afresh shall
also give opportunity to the respondent to
file additional evidence/ any documentary
proof in his possession to show that the
name of the appellant's/ petitioner's mother
was indeed Smt. Ram Kali and not Smt.
Shanti Devi.

11. This petition is accordingly
disposed of.
----------
(2022)02ILR A274
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.02.2022

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Matter Under Article 227 No. 27153 of 2021

Salik Ram Singh @ Salik Ram ...Petitioner
Versus
A.D.J., Court No. 3, Gonda & Ors.
 ...Respondents

Counsel for the Petitioner:
A.Z. Siddiqui

Counsel for the Respondents:
Ankit Pande

A. Code of Civil Procedure, 1908 - Order
XXI Rule 97,98,99 & 101 - A conjoint
reading of Order XXI Rules 97,98,99,101 project
the following picture:

I. If a decree holder is resisted or obstructed in
execution of decree for possession upon
issuance of warrant for possession under Order
XXI Rule 35 CPC then the decree holder has to
move an application under Order XXI Rule 97
CPC for removal of obstruction and after hearing
the decree holder and obstructionist then the
court
can
pass
appropriate
orders
after
adjudicating upon the controversy as enjoined
by Order XXI Rule 97(2) r/w Order XXI Rule 98
C.P.C.

II. If after such adjudication it is found that
resistance or obstruction was without a just
cause then such obstruction or resistance would
be removed under Order XXI Rule 98(2) C.P.C.
and the decree holder would be put in
possession.

III. The order so passed would be treated as a
decree under Order XXI Rule 101 C.P.C. and no