# Smt. Anaro Devi v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1432
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-09
- **Case number:** Civil Misc. Writ Petition No.381of 2006
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-anaro-devi-v-state-of-u-p-and-ors-42720
- **Pages:** 5

## Headnote

C.P.C.-Order
XLI-Rule-27-Additional
Evidence-at
appellate
stage-after
two
years application filed-allowed by Lower
appellate court without considering the
reasons-precluded to file before Trail
Court-additional evidence can not be-as a
matter of right-held-finding of appellate
court is skeletal-not sustainable-direction
for fresh consideration given.

Held: Para-10
In
the
present
case
the
defendant/appellant wanted to file the
public documents i.e. a government order
and in its application for non-production of
those documents in the trial court no valid
reason has been mentioned. It is presumed
that
the
government
order
of
the
department was in the knowledge of the
officer concerned, but it was not filed
before the trial court. In the application also
no reason has been mentioned that why the
papers were not filed earlier. A party cannot
claim to file additional document as a
matter of right. It has to comply the
ingredients of the provisions of the law. The
appellate court in a casual manner has
allowed the application on the ground that
taking the documents on the record is in the
interest of justice without assigning any
reason why additional document can be
accepted at the appellate stage. It was
obligatory on the appellate court to record
the reasons why it was necessary to allow
the application.

Case Law discussed:
AIR 2008 SC 579; AIR 1998 SC 2276; (2012) 8
SCC 148; 2013(3) AWC 3137(SC); AIR 2008
SC 579.

## Text

1432 INDIAN LAW REPORTS ALLAHABAD SERIES
belongs to the public exchequer and is liable
to be recovered from the debtor as well as its
guarantors, therefore, I am of the view that
the principles of natural justice demands to
bring the legal representatives of the debtors
and or the guarantors on record. It is also
pertinent to mention here that the liability
being joint and several, the suit for recovery
is not going to be abated as a whole, thus
once the suit survives even after non
impleadment of the legal representatives of
the defendant No.4 and money is recoverable
from any or all of the defendants as a whole,
there is no harm to allow the application for
substitution of the legal representatives of
defendant No.4. Therefore, I am of the view
that the application for substitution of the
legal representatives of the defendant No.4
moved by the respondent-bank does not
require to be dealt with so technically as it
may defeat the purpose of the Act.

14. The parties also cited some
decisions in support of their submissions
on the point of abatement of case due to
non impleadment of legal representatives
of the deceased within time, but in the
light of the observations made as above, I
do not think it necessary to deal with
those cases.

15. Therefore, no interference is
warranted in the orders impugned. In the
result the writ petition stands dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2013

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No.381of 2006
Smt. Anaro Devi

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri M.K. Gupta, Sri Pankaj Agarwal

Counsel for the Respondents:
C.S.C., Sri A.K. Yadav

C.P.C.-Order
XLI-Rule-27-Additional
Evidence-at
appellate
stage-after
two
years application filed-allowed by Lower
appellate court without considering the
reasons-precluded to file before Trail
Court-additional evidence can not be-as a
matter of right-held-finding of appellate
court is skeletal-not sustainable-direction
for fresh consideration given.

Held: Para-10
In
the
present
case
the
defendant/appellant wanted to file the
public documents i.e. a government order
and in its application for non-production of
those documents in the trial court no valid
reason has been mentioned. It is presumed
that
the
government
order
of
the
department was in the knowledge of the
officer concerned, but it was not filed
before the trial court. In the application also
no reason has been mentioned that why the
papers were not filed earlier. A party cannot
claim to file additional document as a
matter of right. It has to comply the
ingredients of the provisions of the law. The
appellate court in a casual manner has
allowed the application on the ground that
taking the documents on the record is in the
interest of justice without assigning any
reason why additional document can be
accepted at the appellate stage. It was
obligatory on the appellate court to record
the reasons why it was necessary to allow
the application.

Case Law discussed:
AIR 2008 SC 579; AIR 1998 SC 2276; (2012) 8
SCC 148; 2013(3) AWC 3137(SC); AIR 2008
SC 579.

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)
3 All] Smt. Anaro Devi Vs. State of U.P. and Ors.
1433

1. The petitioner is aggrieved by the
order of Additional District Judge dated
07.10.2005, allowing the application of
the defendant-respondent under Order
XLI Rule 27 of the Code of Civil
Procedure, 1908 (for short, "CPC") to
bring the additional evidence on the
record.

2. The essential facts are; the
petitioner-plaintiff filed a Civil Suit No. 208
of 1998 in the court of Additional Civil
Judge for permanent injunction restraining
the officials and employees of Forest
Department from interfering in her fishing
right. She also claimed a sum of Rs. 45100/-
as an alternative relief. In brief her case was
that defendant-Irrigation Department had
granted her lease on 29.04.1997 for a year
but other defendants, employee of forest
department were causing interference in
carrying out her business. The plaintiff/
petitioner's suit was decreed by the Trial
Court on 30.11.2002 only in respect of
payment of a sum of Rs. 35100/- with 5%
interest from 29.04.1997 till actual payment
made. But the Trial Court refused to issue
permanent injunction. The State-defendant
feeling aggrieved by the said decree,
preferred an appeal before the learned
District Judge, which was registered as
Civil Appeal No. 44 of 2003. In the appeal,
the State-defendant moved an application
under Order XLI Rule 27 CPC to bring
some map and government order on the
record after a gap of two years time when
the appeal was pending the said application
dated 14.09.2005 was
filed by the
respondent.

3. Learned District Judge by the
impugned order dated 07.10.2005, in the
interest of justice, allowed the application
filed under Order XLI Rule 27 of CPC, of
the State-defendant.

4. I have heard Sri Pankaj Agarwal,
learned Counsel for the petitioner and Sri
A.K. Yadav, learned Standing Counsel.

5. The learned Counsel for the
petitioner Sri Agarwal has placed reliance
on the judgment of Supreme Court in the
case of K.R. Mohan Reddy v. M/s Net
Work Inc. Rep. Tr. M.D. AIR 2008 SC
579 and AIR 1998 SC 2276, P.K.
Ramchandran v. State of Kerala and
another. Sri Agarwal further submits that
the learned appellate court failed to
consider that no reason has been assigned
by the respondent as to why the document
sought to be adduced, could not be
adduced by them before the trial court
despite due diligence, though the same
was within their knowledge, which is a
pre-requisite condition for moving the
application under Order XLI Rule 27
CPC. He further urged even otherwise it
is the duty of the court considering the
application under Order XLI Rule 27 CPC
to record reason satisfying the condition
laid down for considering the application
under the said provision. He further urged
that the appellate court has not recorded
any reason for allowing the application of
the defendant-appellant. Lastly he submits
that the application was moved after
almost two years while the appeal was
pending.
No
explanation
has
been
mentioned for filing the application after
two years.

6. Learned Standing Counsel
submits that the defendant-appellant/State
had moved the application only to bring
on record a government order and a
relevant map on the record as additional
evidence. Thus there was no prejudice
caused to the plaintiff/respondent and the
appellate court has exercised its discretion
in the interest of justice.
1434 INDIAN LAW REPORTS ALLAHABAD SERIES

7. I have considered the rival
submissions of the respective parties and
perused the record.

8. The plaintiff's suit was decreed
only
in
respect
of
payment
of
compensation. The trial court refused to
issue
permanent
injunction.
Feeling
aggrieved by the judgment and decree of
the trial court the State filed the appeal
and after two years an application dated
14.09.2005 (annexure-2 to the writ
petition). From the perusal of said
document it is evident that no averment
has been made in the application that with
the best efforts such additional evidence
could not have been adduced at the first
instance. It is only mentioned in the
application that it is necessary to bring on
record
those
documents
and
the
documents would clarify the position.

9. The scope of Order XLI Rule 27
CPC is is well settled in a catena of
decisions of the Supreme Court and the
High Courts. It is a trite law that Order
XLI Rule 27 CPC is an exception to
general rule that the appellate court
should not travel outside the record of
trial court and a parity cannot be allowed
to fill the lacuna in its evidence.

10. In the present case the
defendant/appellant wanted to file the
public documents i.e. a government order
and in its application for non-production
of those documents in the trial court no
valid reason has been mentioned. It is
presumed that the government order of
the department was in the knowledge of
the officer concerned, but it was not filed
before the trial court. In the application
also no reason has been mentioned that
why the papers were not filed earlier. A
party cannot claim to file additional
document as a matter of right. It has to
comply the ingredients of the provisions
of the law. The appellate court in a casual
manner has allowed the application on the
ground that taking the documents on the
record is in the interest of justice without
assigning any reason why additional
document can be accepted at the appellate
stage. It was obligatory on the appellate
court to record the reasons why it was
necessary to allow the application.

11. Recently this question fell for
consideration before the Supreme Court
in the case of Union of India v. Ibrahim
Uddin and another, (2012) 8 SCC 148.
The Supreme Court held that the appellate
court has the power to allow a document
to be produced but it must be limited to
those cases where it reaches on the
conclusion
that
such
evidence
is
necessary for enabling it to pronounce
judgment. The Court further held that this
provision does not entitle the appellate
court to let in fresh evidence at the
appellate stage where even without such
evidence it can pronounce judgment in a
case.
Therefore,
in
absence
of
a
satisfactory reason for non-production of
the evidence in the trial court, the
additional
evidence
should
not
be
admitted in appeal as a party guilty of
remissness in the lower court, is not
entitled to give further evidence. The
Court further observed 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 XLI 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
3 All] Smt. Anaro Devi Vs. State of U.P. and Ors.
1435
entitled, as of right, to the admission of such
evidence. Thus, the provision does not apply,
when on the basis of 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.

49. An application under Order 41
Rule 27 CPC is to be considered at the
time of hearing of appeal on merits so as
to find whether the documents and/or the
evidence sought to be adduced have any
relevance/bearing on the issues involved.
The admissibility of additional evidence
does not depend upon the relevancy to the
issue on hand, or on the fact, whether the
applicant had an opportunity for adducing
such evidence at an earlier stage or not,
but it depends upon whether or not the
Appellate Court requires the evidence
sought to be adduced to enable it to
pronounce judgment or for any other
substantial cause. The true test, therefore
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. Such occasion would arise only
if on examining the evidence as it stands
the court comes to the conclusion that
some inherent lacuna or defect becomes
apparent to the court. (Vide: Arjan Singh
v. Kartar Singh, and Natha Singh v.
Financial Commr., Taxation.)"

12. The Supreme Court has taken
similar view in the cases of Mashyak
Grihnirman Sahakari Sanstha Maryadit v.
Usman Habib Dhuka and others, 2013(3)
AWC 3137 (SC) and K.R. Mohan Reddy
v. M/s Net Work Inc. Rep. Tr. M.D., AIR
2008 SC 579. Para-15 of the judgment in
the case of K.R. Mohan Reddy (supra)
reads as under;

"15. The High Court, in our opinion,
failed to apply the provisions of Order 41
Rule 27 of CPC in its correct perspective.
Clauses (a), (aa) and (b) of sub-rule (1) of
Rule 27 of Order XLI refer to three
different situations. Power of the appellate
court to pass any order thereunder is
limited. For exercising its jurisdiction
thereunder, the appellate Court must
arrive at a finding that one or the other
conditions
enumerated
thereunder
is
satisfied. A good reason must also be
shown as to why the evidence was not
produced in the trial Court."

13. In the present case the finding of
the appellate court is skeletal and without any
reason. The recording of the reason is
essential feature of dispensation of justice.
The Supreme Court in the case of Assistant
Commissioner Commercial Tax Department,
Works Contract and Lessee v. Shukla and
brothers1 has said a litigant is entitled to
know the reason for grant or rejection of his
prayer. The reasons are the soul of orders. In
case a reason is not recorded, it may cause
prejudice to the affected party and secondly it
hamper the proper administration of justice.
These principles have been extended by the
Supreme Court to administrative and the
executive actions also. These principles
apply with equal force and in fact with
greater degree of rescission to judicial
pronouncement.

14. After careful consideration, I am
of the view, that the appellate court has
not considered the application moved by
the defendants in proper perspective. The
order of the appellate court, for the
aforestated reasons, needs to be set aside.
Accordingly, it is set aside. The matter is
1436 INDIAN LAW REPORTS ALLAHABAD SERIES
remitted to the appellate court to consider
the application of the defendants/State
afresh in the light of the judgments
mentioned hereinabove.

15. Thus, writ petition is allowed.

16. No order as to costs.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.10.2013

BEFORE
THE HON'BLE ANURAG KUMAR, J.

Criminal Appeal No. 986 of 2010

Sushil Sharma... Appellant
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Sri Piyush Kumar Mishra, Sri A.K. Tewari
Sri Jai Prakash Singh, Sri R.P. Mishra
Sri S.P. Singh Somvanshi, Sri Yashwant
Singh

Counsel for the Respondent:
Govt. Advocate

Cr.P.C.-Section 374(2), 389-Appeal against
conviction-offence under section 376 IPCon
grounds
of
false
implication,
no
corboration of statements of victim and
delay
in
lodging
FIR-held-such
harm
physical and psychological is much more
harm than physical-where dignity of such
minor girl involve-delay in lodging FIR no
material-on day of accident victim was in
school copy of attendance register-not
proved by class teacher-not admissibleappeal no force-dismissed-conviction heldproper

Held: Para-16
From the evidence of prosecutrix P.W.2 it
is quite clear that the accused-appellant
committed sexual intercourse with her.
The age of the victim is very material. She
is a minor girl aged 12 years old. There is
no reason to falsely implicate any person
in such type of cases. The defence
evidence in this regard that accusedappellant was falsely implicated due to
enmity could not inspire much confidence.

Case Law discussed:
2004(7) SCC 775; 1990(11)1 SCC 550; 1983(3)
SCC 217.

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

1. This is an appeal preferred by the
accused-appellant Sushil Sharma under
Section 374(2) read with Section 389 of the
Criminal Procedure Code against the
judgment and order dated 27.3.2010 passed
by Additional Sessions Judge, Room No. 4,
District Pratapgarh in Sessions Trial No.
156 of 2008, arising out of case crime no.
128 of 2007 under Section 376 I.P.C.,
Police
Station
Mandhata,
District
Pratapgarh, convicting and sentencing the
accused-appellant under Section 376 I.P.C.
for seven years rigorous imprisonment and
a fine of Rs.5,000/- and in default of
payment of fine additional conviction of
two months.

2. Prosecution version in nutshell is
that on an application moved by the
informant Smt. Suman Sharma under
Section 156(3) Cr.P.C. on 5.5.2007 by
Court order F.I.R. was registered against the
accused-appellant Sushil Sharma under
Section 376 I.P.C. on 25.5.2007 at Police
Station Mandhata, District Pratapgarh with
the allegation that on 12.3.2007 when
informant went to her field for collecting
peas at 11.00 a.m. accused-appellant Sushil
Sharma went into the house of informant on
pretext that whether there is whey in the
house, he needs it, and committed sexual
intercourse with her daughter Km. Roshni
Sharma aged about 12-13 years, when her
daughter tried to shout, he closed her