# Smt. Ganga Devi v. Sri Bhagwan Dass & Ors

- **Citation:** (2014) 3 ILRA 1226
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-05
- **Case number:** Civil Misc. Application No. 306325 of 2013
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-ganga-devi-v-sri-bhagwan-dass-ors-43105
- **Pages:** 6

## Headnote

C.P.C.- Order XXXXI Rule-27-Additional
Evidence-Second
Appeal-document
sought to filed-already rejected by
lower Appellate Court-under challenge in
Second Appeal-unless the contingencies
of Rule 27 there-addition evidence can
not be allowed to fill up lacuna of caserejected.
Held: Para-18
Order 41 Rule 27 CPC is clearly not intend
to allow a litigant who had been
unsuccessful in the lower court to patch up
the weak parts of his case and to fill up the
omission in appeal. Additional evidence can
be admitted only where the Appellate court
requires it, i.e. finds it needful, to enable it
to pronounce judgment, or for any other
substantial cause. In either case it must be
the court that requires it. The legitimate
occasion for the exercise of this discretion is
when on an examination of the evidence as
it stands, some inherent lacuna or defect
becomes apparent, not where a discovery is
made, outside the court, of fresh evidence,
and an application is made to import it. It
may well be that the defect, but the
requirement must be the requirement of the
court upon its appreciation of the evidence
as it stands (See. Arjan Vs. Kartar, 1951
SCR 258, Parsotim Thakur and others Vs.
Lal Mohan and others, AIR 1931 P.C. 143).
3 All]. The United India Insurance Co. Ltd. Vs. Smt. Meera Devi & Ors.
1227
Case Law discussed:
A 1974 SC 2069; AIR 1995 ALL 70; 1951 SCR
258; AIR 1931 P.C. 143.

## Text

1226
 INDIAN LAW REPORTS ALLAHABAD SERIES
owner, who was driving the vehicle, was
not covered under the policy. The said
case in our humble view is distinguishable
for the following reasons.
14. Section 2(9) of the Act defines
driver, which in our view encompasses
the owner also to be the person who is
behind the steering wheel and driving the
vehicle. The cover note of the insurance
policy in the instant case includes the
insured and any other person, who is
entitled to drive. The words used in the
insurance policy are as under:
"Persons or classes of persons
entitled to drive
Any person including insured:"
15. The premium of Rs.15/- was paid
for driver. Nothing has been indicated in the
appeal nor has anything been addressed by
the learned counsel for the appellant to the
effect that personal insurance of the owner of
the vehicle under the comprehensive policy
could invite a different premium other than
that premium paid for the driver. In the
absence of any such pleading, we are of the
opinion, that the comprehensive policy in the
instance case also covered the personal
insurance of the owner of the vehicle.
16. Consequently, we do not find
any error in the order of the Tribunal. The
appeal fails and is dismissed.
17. In the circumstances of the case
parties shall bear their own cost.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2014
BEFORE
THE HON'BLE ANIL KUMAR, J.
Civil Misc. Application No. 306325 of 2013
In
Second Appeal No. 344 of 2009
Smt. Ganga Devi
...Appellant
Versus
Sri Bhagwan Dass & Ors.
...Respondents
Counsel for the Appellant:
Sri Sankatha Rai, Sri Vinod Kumar Rai,
Sri Vijay Kumar Rai, Sri Ashok Kumar Singh
Counsel for the Respondents:
Sri Madhav Jain, Sri M. Jain, Sri Mukesh
Kumar, Sri Nirvikar Gupta, Sri Prakash
Chandra
C.P.C.- Order XXXXI Rule-27-Additional
Evidence-Second
Appeal-document
sought to filed-already rejected by
lower Appellate Court-under challenge in
Second Appeal-unless the contingencies
of Rule 27 there-addition evidence can
not be allowed to fill up lacuna of caserejected.
Held: Para-18
Order 41 Rule 27 CPC is clearly not intend
to allow a litigant who had been
unsuccessful in the lower court to patch up
the weak parts of his case and to fill up the
omission in appeal. Additional evidence can
be admitted only where the Appellate court
requires it, i.e. finds it needful, to enable it
to pronounce judgment, or for any other
substantial cause. In either case it must be
the court that requires it. The legitimate
occasion for the exercise of this discretion is
when on an examination of the evidence as
it stands, some inherent lacuna or defect
becomes apparent, not where a discovery is
made, outside the court, of fresh evidence,
and an application is made to import it. It
may well be that the defect, but the
requirement must be the requirement of the
court upon its appreciation of the evidence
as it stands (See. Arjan Vs. Kartar, 1951
SCR 258, Parsotim Thakur and others Vs.
Lal Mohan and others, AIR 1931 P.C. 143).
3 All]. The United India Insurance Co. Ltd. Vs. Smt. Meera Devi & Ors.
1227
Case Law discussed:
A 1974 SC 2069; AIR 1995 ALL 70; 1951 SCR
258; AIR 1931 P.C. 143.
(Delivered by Hon'ble Anil Kumar, J.)
1. Heard Sri Ashok Kumar Singh,
learned counsel for the appellant, Shri
Madhav Jain, learned counsel for the
respondents and perused the record.
2. The present application has been
moved by the appellant under Order 41
Rule 27 read with Section 151 C.P.C. in
order to bring the following additional
evidence on record :-
"The appellant application no.22C/1
to 22 C/3 under order 41 rule 27 C.P.C.
Purported to file additional evidence
annexing with the documents was rejected
by the learned VII Additional District
Judge vide order dated 2.2.2009 in first
appeal no.110 of 1994 on the ground that
the document seeking to produce in
additional evidence are the photo copies.
The present supplementary affidavit
and its annexure is being filed by
deponent to avoid the delay. The Hon'ble
Court may be pleased to the allow the
same in exercise the inherent power of the
court in the interest of justice."
3. On the said application, an order
has been passed on 26.09.2013. The
relevant portion of the same is quoted
herein below :-
"The question whether the appellate
court was justified in rejecting the
application of appellant under Order 41
Rule 27 CPC shall be considered at the
time of hearing of the appeal. The
application is rejected."
4.
While pressing the application in
question, learned counsel for the appellant
submits that the original appellant/Smt.
Ganga devi (now deceased) who was
illiterate lady and ignorant of the complicated
questions of law and fact, therefore, same
documents/admissions of the respondents
could not be filed on record. When it came to
her knowledge that Rsmesh Chand has filed
Writ Petition No.1087 of 1987 (Ramesh
Chandra vs. Additional District Magistrate,
Agra and others) before this Court, the
appellant sent letter to the clerk of his
counsel Shri R. N. Bhalla, Advocate to
obtain the copy of aforesaid writ petition.
5. Thereafter, the photostat copy of
the said writ petition was obtained and
from perusal of paragraph no.2 of the said
writ petition, it came to knowledge that
Ramesh Chandra himself has admitted
that he and Smt. Ganga Devi (now
deceased) were owner and londlord of the
house in dispute in an application filed
under Section 16 of U.P. Act 13 of 1972
against Munna Lal for release of the
House No.24/106, Kazi Para, Agra. So,
keeping in view the said facts, the
appellant filed an application under Order
41 Rule 27 (1) C.P.C. Supported by an
affidavit (registered as paper Nos.22-C
and 23-C) before the appellate court.
6. By means of order dated
2.2.2009, the same has been rejected on
the ground that the document sought to be
brought on record, is a photostat copy, not
admissible under evidence. Further the
appellate court while rejecting the said
application has also given a finding that
matter is to be decided expeditiously as
per the order passed by this Court dated
18.4.1988 expeditiously.
1228
 INDIAN LAW REPORTS ALLAHABAD SERIES
7. During the pendency of the present
appeal, on behalf of the appellant, an
application (C.M.A.No. 102352 of 2009) has
been moved under Order 41 Rule 27 (1)
C.P.C. to bring the document on record in
respect to which an order dated 2.2.2009 has
been passed by the appellate court on an
application moved under Order 41 Rule 27
C.P.C.. After hearing learned counsel for the
parties on 25.7.2014 the following order has
been passed :-
( C.M. Application No. 102352 of
2009)
Heard Sri Ashok Kumar Singh,
learned counsel for the appellant, Sri
Prakash Chandra, learned counsel for the
respondents and perused the record.
In the present case , present
application under Order 41 Rule 27 CPC
has been moved by defendant/ appellant
in which this Court on 29.9.2013 has
passed the following orders:-
"Heard learned counsel for the parties
on civil misc. application no. 102352 of 2009
under Order 41, Rule 27 CPC.
Learned counsel for the appellant
moved this application to bring certain
documents on record under Order 41
Rule 27 CPC.
The main contention of the appellant is
that he also filed the same documents in the
Appellate Court in First Appeal, which was
rejected by the Appellate Court.
The documents which the appellant
wish to file here in this Appeal are also on
record in First Appeal. Now the only
question is whether trial court was
justified in rejecting his application under
Order 41 Rule 27.
The question whether the appellate court
was justified in rejecting the application of
appellant under Order 41 Rule 27 CPC shall
be considered at the time of hearing of the
appeal. The application is rejected.
Since no application is pending, list
this appeal for hearing of the appeal in
the week commencing 21.10.2013."
After arguing at some length, learned
counsel for the appellant prays that he
does not want to press this application.
Learned Standing Counsel has no
objection to the above said prayer.
For
the
forgoing
reasons,
the
application is rejected."
8.
In view of the above said factual
background,
the
present
application
(C.M.A.No.306325 of 2013) moved by him
under Order 41 Rule 27 C.P.C. has come up
for consideration and the same has been
pressed on behalf of the appellant as per the
facts stated herein above and mentioned in
the affidavit filed along with the application
in question and on the basis of the same, it is
submitted that the same may be allowed.
9. After hearing learned counsel for
parties in order to decide the controversy
in question, it would be appropriate to go
through the provisions of Order 41 Rule
27(1) C.P.C. which reads as under:-
"Rule 27- Production of additional
evidence in Appellate Court-- (1) The
parties to an appeal shall not been titled
to produce additional evidence, whether
oral or documentary, in the Appellate
Court, But if--
3 All]. Smt. Ganga Devi Vs. Sri Bhagwan Dass & Ors.
1229
(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."
10. Under Sub-Rule (1) (a) an
appellate court can direct additional
evidence to be recoded if the trial court
had
improperly
rejected
to
record
evidence which a party was prepared to
produce.
(See
Offl
Liquidator
vs.
Raghava, A 1974 SC 2069). However, if
the document was not tendered at the trial,
Rule 27 (1) (a) does not apply coupled
with the fact that when no explanation is
given why those documents were not
produced before the trial court, they
cannot be received as additional evidence
(See Raj Kishore Mishra v. Meena
Mishra, AIR 1995 ALL 70). Moreover,
the permission to produce additional
evidence cannot be given unless it is
established that such evidence was not
within the knowledge or could not be
produced after due diligence at the time of
passing of decree.
11. Further on plain reading of Subrule (1)(aa) of Order 41 rule 27, the
position which emerges out is that when
application is made at a late stage to put
in evidence res moviter ad notitiant
preventa, one of the primary duties of the
applicant is to show that it was owing to
no want of diligence on his part that the
matter/evidence
was
not
discovered
before, so he was not able to file the same
before the court below and if a appellant
falls to satisfy the said condition his
application to produce the same at a
belated stage is liable to be rejected.
12. The party seeking to produce
additional evidence, whether oral or
documentary additional evidence, is to
establish that notwithstanding to exercise
of due diligence, such evidence was not
within his knowledge or could not, after
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 and in order to bring the additional
evidence on record, the appellant should
establish that he made application to get
the certified copies prior to the disposal of
the suit, and they were not available and
adjournment was refused by the Court.
Where it is not stated that the trial court
refused to admit the documents or that the
documents were not available at the time
of trial, they cannot be admitted in the
appellate court to fill up the gaps in the
evidence or to better the case of the
appellant.
13. Before a party is allowed to
produce additional evidence he has to
establish that the evidence was not in
existence, was not within his knowledge
or could not after the exercise of due
diligence be produced by him at the time
1230
 INDIAN LAW REPORTS ALLAHABAD SERIES
when the decree appealed against was
passed.
14. Sub-Rule (1)(b) of Order 41
Rule
27
CPC
has
two
important
ingredients, namely, (a) 'requires' (b) for
any substantial justice' in order to invoke
the said provision.
15. As per the said provision "the
requirement" must be of the court and not
of any party to the suit. When the court is
of opinion that without fresh evidence it
cannot pronounce judgment and perform
its functions, then and then only will it be
allowed because requires means needs or
finds needful or that it is necessary for
doing real justice (substantial justice) and
for just decision of an appeal, the
appellate Court has discretion to take such
documents on record.
16.
Accordingly, , the true test 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.
The mere discovery of fresh evidence
subsequent to the decision of the lower
court is not a ground for its admission in
appeal unless the appellate court requires
that evidence to enable it to pronounce
judgment. So, additional evidence should
not be permitted at the appellate stage to
enable a party to remove certain lacunae
and to fill in gaps. It should be proved that
the evidence sought to be let in was not
available at the trial. The rule does not
authorise admission of additional evidence
for the purpose of removal of lacunae and
filling in gaps in evidence.
17. Further, "any other substantial
cause" need not be ejusdem generis with
the cause stated in the earlier part of the
rule and the words "or for any other
substantial cause" must be read with the
word "requires" which is set out at the
commencement of the provision, so that it
is only where for any other substantial
cause,
the
appellate
court
requires
additional evidence.
18. Order 41 Rule 27 CPC is clearly
not intend to allow a litigant who had
been unsuccessful in the lower court to
patch up the weak parts of his case and to
fill up the omission in appeal. Additional
evidence can be admitted only where the
Appellate court requires it, i.e. finds it
needful, to enable it to pronounce
judgment, or for any other substantial
cause. In either case it must be the court
that requires it. The legitimate occasion
for the exercise of this discretion is when
on an examination of the evidence as it
stands, some inherent lacuna or defect
becomes apparent, not where a discovery
is made, outside the court, of fresh
evidence, and an application is made to
import it. It may well be that the defect,
but
the
requirement
must
be
the
requirement of the court upon its
appreciation of the evidence as it stands
(See. Arjan Vs. Kartar, 1951 SCR 258,
Parsotim Thakur and others Vs. Lal
Mohan and others, AIR 1931 P.C. 143).
19. In view of the above said
discussions and the facts as taken by the
appellant in order to bring the additional
evidence as per the provisions of Order 41
Rule 27 (1) C.P.C. , I do not find that on
the said facts, the application in question
can be allowed as per the discussions
made herein above and in regard to
applicability of the Order 41 Rule 27 (1)
C.P.C., so the same is rejected.
3 All]. Smt. Ganga Devi Vs. Sri Bhagwan Dass & Ors.
1231
20.

List
the
matter
before
appropriate Bench after three weeks.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: 31.10.2014
BEFORE
THE HON'BLE RAKESH TIWARI, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Crl. Misc. Application (Leave to Appeal)
No. 400 of 2014
Neeraj Kumar Kanaujia
...Complainant
Versus
State of U.P. & Ors.
..Opp. Parties.
Counsel
for
the
Complainant:
Sri Gulab Chandra
Counsel for the Respondents:
A.G.A.
Cr.P.C. Section-372-Leave to appealagainst
acquittal-on
ground
the
deceased made dying declaration before
his death-assigning role of accusedunder Section 27 of evidence Act-valid
u/s 32 of Evidence Act-held that dying
declaration recorded by constable on
dictation of I.O.-No declaration in eye of
law-blood sustained clothes neither sent
for forensic test not produced before
Trail
Court-material
contradiction
in
prosecution witnesses-no independent
witness-examined-Trail
Court
not
committed any illegality or infirmityrequires no interference by High CourtAppeal dismissed.
Held: Para-16
The Apex Court in the case of Murlidhar
alias Gidda and others versus State of
Karnataka, 2014 (2) SCC (Crl.) 690 has
held that if a dying declaration of the
injured was recorded by a Constable on
the dictation of I.O. it will not be a dying
declaration in the eye of law. Hence, in the
facts of this case it is established from the
statements of P.W.2 and P.W.4 that
injured was not in a position to give his
statement. The trial Court has therefore,
rightly disbelieved the dying declaration of
the deceased recorded by the I.O. It is also
significant to note that the blood stained
clothes of the deceased were neither sent
for forensic test nor the same were
produced before the trial Court.
Case Law discussed:
(2014) 5 SCC-509; SCC-2011 (7) page-295;
SCC-2011 (2) page 490; Cr. L.J. 2006 page
2618; AIR 1995 SC-2472; AIR 2004 SC 1920;
1999 (2) SCC-126; 2014 (2) SCC (Crl.) 690.
(Delivered by Hon'ble Rakesh Tiwari, J.)
1. Heard Sri Gulab Chandra, learned
counsel for the appellant, learned AGA
for the accused-respondents and perused
the record.
2. In view of the judgment rendered
in the case of Lekhraj versus State of U.P.
and others (Criminal Misc. Application
under Section 372 Cr.P.C. ( Leave to
Appeal) No. 6 of 2014 decided on 10th
October, 2014, no leave to appeal is
required for the victim to prefer an appeal
on the grounds mentioned in proviso to
Section 372 Cr.P.C. as he has an
indefeasible statutory right to file the
appeal.
3. Criminal Appeal No. 400 of 2014
under Section 372 Cr.P.C. has been
preferred
challenging
the
impugned
judgment and order dated 20.9.2014
passed by the Addl. Sessions Judge, Court
No. 10, Allahabad in S.T. No. 757 of
2011 (State Vs. Sunil Kumar Kaushik and
another along with connected S.T.No. 758
of 2011, State versus Sunil Kumar
Kaushik)
acquitting
the
accusedrespondents of the charges framed against
them under Sections 302 read with