# Shri Kishore and another Defendant/ v. Roop Kishore Plaintiff/ 914 INDIAN LAW REPORTS ALLAHABAD SERIES [2006

- **Citation:** (2006) 2 ILRA 913
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-22
- **Case number:** Civil Misc. Writ Petition No. 44671 of 2004
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-kishore-and-another-defendant-v-roop-kishore-plaintiff-914-indian-law-40616
- **Pages:** 5

## Headnote

Code of Civil Procedure-Order 41 Rule
27-Additional evidence-application for
taking opinion from expert hand writingfield after 11 months after filing the
Appeal-held-can not be allowed-case not
covered under 3 clauses of rule 27 of
Order 41.

Held: Para 9

The appellate court can thus direct a
party to adduce additional evidence only
if the conditions under Rule 27 of Order
41
C.P.C.
are
satisfied.
Additional
evidence in appeal cannot be filed by any
party to the appeal as of right. Since the
case of the respondent for adducing
additional evidence is not covered under
any of the three clauses of Rule 27 of
Order 41 C.P.C., the appellate court has
erred in law in passing the impugned
order dated 27.9.2004, allowing the
application of the respondent to produce
additional evidence.

## Text

2 All] Shri Kishore and another V. Roop Kishore
913
(along with his report to the State
Government).

12. The said Rule 7 of Rules, 1963
uses the expression 'application' in the
case of 'application for renewal' of
mining lease. Rule 8 of Rules, 1963,
which requires State Government to
process the application for renewal of
mining lease subject to satisfaction of
requirement of the other Rules and also
after making such other inquiry as it may
consider necessary. If application to
'renew mining lease' is not filed before
six month (as contemplated under Rule 6A of Rules, 1963) the application was
certainly not in order and in absence of an
application for condonation of delay it
should
be
treated
as
defective
or
incomplete. To this extent, the District
Magistrate had no jurisdiction to entertain
the applications of the petitioner and refer
it to the State Government. The fact that
application without condonation of delay,
was entertained and referred to the State
Government, if the provisions of Rules 6
(2) are kept in mind the District
Magistrate was supported to have given
notice requiring applicant (petitioner) to
complete the application in this respect
also. If application for condonation of
delay was essential the District Magistrate
should have rejected the application
himself
on
the
ground
of
being
incomplete (instead of recommending to
the Government for condoning the delay).

13. In this view of the matter, we
find that the impugned order dated
19.5.2006
(annexure-9
to
the
writ
petition) cannot be sustained and is liable
to be set aside.

14. The impugned order dated
19.5.2006 is hereby set aside with a
direction to the respondent no. 1 to
consider the application afresh after
giving full opportunity to the petitioner to
submit explanation for condonation of
delay to avoid delay as matter is quite old.
We further direct the petitioner to file
certified copy of this Judgment along with
an application for condonation of delay
before respondent no. 1 within four weeks
from today and if the petitioner files an
application for condonation of delay, as
stipulated, respondent no. 1 shall decide
the same in accordance with law within
one month of receipt of such application.

15. While dealing with the instant
case, we are of the opinion that the rules
framed are inadequate and it is advisable
that specific provision be made requiring
the applicant, in the case of renewal of
mining lease, to file an application for
condonation of delay and adequate
admendment be incorporated in rules to
avoid ambiguity in future. For this
purpose, a copy of this Judgment shall be
sent to the Principal Secretary, Industrial
Development for consideration of the
State Government to take steps, in order
to avoid unnecessary litigation in Court
on this issue, if so advised.

16. Petition stands allowed. No
order as to costs. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2005

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 44671 of 2004

Shri Kishore and another
 ...Defendant/Petitioner
Versus
Roop Kishore ...Plaintiff/Respondent
914 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Counsel for the Petitioners:
Sri Amit Saxena

Counsel for the Respondent:
Sri Sudhir Dixit

Code of Civil Procedure-Order 41 Rule
27-Additional evidence-application for
taking opinion from expert hand writingfield after 11 months after filing the
Appeal-held-can not be allowed-case not
covered under 3 clauses of rule 27 of
Order 41.

Held: Para 9

The appellate court can thus direct a
party to adduce additional evidence only
if the conditions under Rule 27 of Order
41
C.P.C.
are
satisfied.
Additional
evidence in appeal cannot be filed by any
party to the appeal as of right. Since the
case of the respondent for adducing
additional evidence is not covered under
any of the three clauses of Rule 27 of
Order 41 C.P.C., the appellate court has
erred in law in passing the impugned
order dated 27.9.2004, allowing the
application of the respondent to produce
additional evidence.

(Delivered by Hon'ble Vineet Saran, J.)

1. Petitioners Shri Kishore and
Bacchan Babu as well as respondent Roop
Kishore are all real brothers having their
landed properties situated in the village.
After the death of their father, they
inherited the property in the ratio of 1/3rd
share each. According to the petitioners,
on 27.2.2001 a family partition took place
between the three brothers in presence of
the Panchayat and other witnesses, in
which the respondent Roop Kishore left
his 1/3rd share in favour of the
petitioners, after taking a sum of Rs.
22,000/- in lieu of his share in the
property.
Thereafter,
on
12.3.2001,
respondent Roop Kishore filed Original
Suit no. 126 of 2001 against the
petitioners in the court of Civil Judge
(Junior Division), Aligarh for partition of
his 1/3rd share in the joint property. The
said suit was contested by the defendantpetitioners. The trial court, vide its
Judgment and Order dated 16.11.2002,
dismissed the suit of the plaintiffrespondent with cost. Against the said
Judgment and Order of the trial court, the
plaintiff-respondent Roop Kishore filed
appeal
on
24.12.2002,
which
was
registered as Civil Appeal No. 10 of 2003
in the court of District Judge, Aligarh.
After lapse of more than 15 months of
filing of the appeal, the respondent Roop
Kishore filed an application under Order
41 Rule 27 C.P.C. before the appellate
court for obtaining the opinion of a Handwriting
expert
with
regard
to
his
signatures on the partition deed dated
27.2.2001. Petitioners filed objections to
the said application and after hearing the
learned counsel for the parties, the
appellate court, vide its order dated
27.9.2004, allowed the said application of
the respondent. Aggrieved by the said
order, the petitioners have filed this writ
petition.

2. I have heard Sri Amit Saxena,
learned counsel for the petitioners, as well
as Sri Sudhir Dixit, learned counsel for
the respondent and have perused the
record. Counter and rejoinder affidavits
have been exchanged and with the
consent of the learned counsel for the
parties, this writ petition is being disposed
of at this stage.

3. The respondent can adduce
additional evidence at the appellate stage
only under the provisions of Order 41
Rule 27 C.P.C., which reads as under:-
2 All] Shri Kishore and another V. Roop Kishore
915
"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."

4. The contention of the defendantpetitioners is that the application for
adducing additional evidence at the
appellate
stage
could
have
been
entertained only if the same was within
the ambit of the provisions of Order 41
Rule 27 C.P.C. It was submitted that since
in the present case, the conditions of the
said rule were not fulfilled, the appellate
court has erred in law in allowing the
same and that, accordingly, the impugned
order was liable to be quashed.

5. Sri Sudhir Dixit, learned counsel
for the plaintiff-respondent, has however
submitted that the burden of proving the
document
(partition
deed
dated
27.2.2001)
was
on
the
defendantpetitioners, as they had filed the said
document and thus it was the duty of the
defendant-petitioners to have called for a
report from the Hand-writing expert; and
since the same was not done before the
trial court, the respondent had filed the
application for calling for such a report
from the hand-writing expert to verify the
signature of the plaintiff-respondent on
the said partition deed, which has rightly
been allowed, being covered by the
provisions of sub-rule (1) (aa) of Rule 27
of Order 41 C.P.C. Learned counsel for
the respondent has further submitted that
to meet the ends of justice, the appellate
court can always require any document to
be produced or any witness to be
examined, to enable it to pronounce
judgment or for any other substantial
cause, and thus case of the respondent
would
also
be
covered
under
the
provisions of Order 41 Rule 27 (1) (b)
C.P.C.

6. Having heard learned counsel for
the parties and considering the facts and
circumstances of this case, in my view,
the appellate court has erred in allowing
the application of the plaintiff-respondent
and as such the said order deserves to be
set aside. It is not the case of the
respondent that he was not given
sufficient opportunity to produce evidence
before the trial court. In the facts of the
present case, the submission of the
learned counsel for the respondent that
under section 103 of the Indian Evidence
Act, the burden to prove a particular fact
would lie on the person who wishes the
court to believe in its existence, does not
916 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
have much force. It is true that the
defendant-petitioners
had
filed
the
document dated 27.2.2001 and it was their
duty to prove the same. However, it is
evident from a perusal of the order of the
trial court that for such purpose the
petitioner no.1, besides producing himself
as witness, had also produced the scribe
of the document as well as an attesting
witness of the document, who were duly
cross examined by the plaintiff. It has
been categorically observed by the trial
court that the plaintiff-respondent was
given ample opportunity to produce
evidence in his favour but instead, the
plaintiff-respondent did not produce any
of the eight signatories of the document in
question, nor did he make any application
for getting the document examined by any
hand-writing expert. Thus it cannot be
said that the defendant-petitioners did not
discharge
their
duty
to
prove
the
authenticity of the document which they
were relying upon. The real test in the
present case would be to see as to whether
what the respondent is wanting to do by
filing an application under Order 41 Rule
27 C.P.C. before the appellate court,
could have been done by him before the
trial court or not. The answer to the same,
in the present case, would be that the
respondent could have called for a report
of a hand-writing expert even before the
trial court, for which he had sufficient
opportunity. As such, since he did not
avail
such
opportunity,
he
cannot
thereafter be granted a fresh chance to
adduce additional evidence before the
appellate court.

7. The next submission of the
learned counsel for the respondent is that
even after exercising due diligence, the
respondent
could
not
adduce
such
evidence before the trial court because it
was only after the judgment of the trial
court that he realised that the duty was
cast on him to disprove the document and
he thus contended that the case would be
covered under clause (aa). The said
submission is not tenable in law as in case
if after the judgment of the trial court, a
person is permitted to better or improve
upon his case, then the entire purpose of
Order 41 Rule 27 C.P.C. would be
defeated. When the defendants-petitioners
had adduced evidence to prove the
document before the trial court, it was
open
to
the
plaintiff-respondent
to
produce adequate evidence in support of
his case to disprove the said document
(partition deed). The Apex Court in the
case of Natha Singh vs. The Financial
Commissioner AIR 1976 S.C. 1053 has
observed as follows:-

"So far as the application of the
appellants for additional evidence is
concerned, it cannot be allowed in view of
the well settled principles of law that the
discretion given to the appellate court to
receive and admit additional evidence is
not an arbitrary one but is a judicial one
circumscribed
by
the
limitations
prescribed in Order 41 Rule 27 of the
Code of Civil procedure. If the additional
evidence is allowed to be adduced
contrary to the principles governing the
reception of such evidence, it will be a
case of improper exercise of discretion
and the additional evidence so brought on
the record will have to be ignored. The
true test to be applied in dealing with
applications for additional evidence is
whether the appellate court is able to
pronounce judgment on the materials
before
it,
without
taking
into
consideration the additional evidence
sought to be adduced."
2 All] Deo Narain Gupta V. Mohammad Ahmad Saleem and another
917
8. In the present case also, the prayer
for adducing the additional evidence has
been made by the respondents merely to
fill up the gaps in this case. In my view,
the case of the respondent would thus not
be covered under clause (b) also, as it is
only in exceptional and extraordinary
circumstances that the appellate court
may, on its own, direct production of any
document or witness only to enable it to
pronounce the judgment or for any other
substantial cause. There is no substantial
cause placed before me on the basis of
which, on its own, the appellate court
could
have
directed
the
additional
evidence to be adduced. As observed by
the Apex Court in the case of Nathu Singh
(supra), the true tests in such a case would
be as to whether the appellate court is able
to pronounce the judgment on the
materials before it, without taking into
consideration the additional evidence
sought to be adduced. In the present case,
in my view, the appellate court could have
pronounced the judgment without the
additional evidence sought to be produced
by the respondent, as evidence regarding
proof of the document had already been
adduced by the parties before the trial
court. The parties cannot be given
opportunity to better the case or adduce
additional evidence only to fill up gaps
left out in the case before the trial court,
or else this would be a never ending
process, and the parties would continue to
move applications for adducing additional
evidence
at
every
stage
of
the
proceedings.

9. The appellate court can thus direct
a party to adduce additional evidence only
if the conditions under Rule 27 of Order
41
C.P.C.
are
satisfied.
Additional
evidence in appeal cannot be filed by any
party to the appeal as of right. Since the
case of the respondent for adducing
additional evidence is not covered under
any of the three clauses of Rule 27 of
Order 41 C.P.C., the appellate court has
erred in law in passing the impugned
order dated 27.9.2004, allowing the
application of the respondent to produce
additional evidence.

10. Accordingly, this writ petition is
allowed. The order dated 27.9.2004
passed by the Additional District Judge,
Aligarh in Civil Appeal No. 10 of 2003 is
quashed. Both the sides have submitted
that as the appeal is pending since 2003, it
may be disposed of at the earliest.
Accordingly, it is provided that the lower
appellate court shall decide the appeal
expeditiously,
preferably
within
six
months from the date of filing of a
certified copy of this order before it,
without
granting
any
unnecessary
adjournment to either party.

No order to cost. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Contempt Application/Petition
No.2140 of 2004

Deo Narain Gupta

...Applicant
Versus
Mohammad Ahmad Saleem and another

...Opposite Party

Counsel for the Applicant:
Sri J.P. Singh
Sri Dhirendra Singh

Counsel for the Opposite Parties:
Sri Nurul Hude