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PETITIONER: MAHAVIR SINGH & ORS.

       Vs.

RESPONDENT: NARESH CHANDRA & ANR.

DATE OF JUDGMENT:       08/11/2000

BENCH: D.P.Mohapatro, S.Rajendra Babu

JUDGMENT:

RAJENDRA BABU, J.  : L.....I.........T.......T.......T.......T.......T.......T..J

     Leave granted.

     This  appeal  arises out of an order made by the  High Court  in a revision petition filed under Section 115 of the Code  of  Civil  Procedure,  1908 by  which  it  allowed  an application filed by the respondents- plaintiffs under Order XLI,  Rule 27 read with Section 151 CPC by setting aside the order dated 24.12.1999 passed by the learned District Judge, Gurgaon,  refusing  to permit the respondents-plaintiffs  to adduce  additional  evidence by the said  application.   The respondent-plaintiffs   filed  a  suit   for  (i)   specific performance  of the agreement to sell dated 30.1.1995,  (ii) delivery  of vacant possession and (iii) a declaration  that the  defendant  No.1  was  an absolute  owner  of  the  land measuring  102  kanals  and 14 marlas as  described  in  the plaint.   In pursuance of the said agreement, it is  alleged that  the defendants submitted on 7.2.1995 an application to the  Income Tax Department for obtaining clearance for  sale of  the said land which was signed by the plaintiff No.1 and defendant  No.1 along with certain other documents  attached thereto.   After  trial, the trial court dismissed the  suit against  which a regular appeal was filed.  In the course of the trial the original agreement of sale produced before the court  was  sent  for scientific examination.   PW-8,  Ashok Kashyap,  who is stated to be Hand-Writing and Finger Prints Expert,  deposed that he had examined the original agreement to  sell dated 30.1.1995 and found evidence of interpolation at  pages  2 and 3.  In the appeal filed before the  learned District  Judge, an application under Order XLI, Rule 27 CPC read  with  Section 151 CPC is filed by the  respondents  to adduce additional evidence.  The contention put forth in the appellate  court is that the original agreement for sale and the  copy of agreement produced before Income Tax Department should   be  examined  by   Forensic   Science   Laboratory, Government  of  N.C.T.,  Delhi or by  any  other  Government Forensic Science Laboratory having sufficient instruments or apparatus for detection of erasyers thereby asking the Court to  make detailed inquiry as to whether the said  facilities are  available  in  any  laboratory and  then  to  send  the documents to such laboratory.  The appellate court dismissed the said application by the order made on 24.12.1999.  Being

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aggrieved  by that order, a revision petition was  preferred before the High Court, as stated earlier.

     It   is   unfortunate  that   the  appellant  made   a representation  to  the Chief Justice of the High  Court  to list  the case before another Judge in the circumstances set forth  in  the representation and a copy of which  was  also sent  to  the learned Judge.  However, it appears that  this aspect  does not seem to have been pursued with and the same learned  Judge  before whom the matter was listed heard  the matter  and  decided the same.  These allegations have  been reiterated  in  the  course of the special  leave  petition. Preliminary  objection  is raised by the respondents to  the effect  that the case came up for hearing in the High  Court on  28.3.2000  and 25.4.2000, while the  representation  had been  made on 23.3.2000 but not brought to the notice of the learned  Judge  nor any objection to this effect during  the course of the hearing of the matter by the learned Judge was raised  before him before the arguments were concluded  and, therefore,  reiteration of those apprehensions in the course of  the  special  leave petition will tantamount  to  making allegations  against  the  learned Judge of the  High  Court which  are uncalled for and this Court should not  entertain the  special leave petition at all in view of the conduct of the  appellant.  We have given our anxious consideration  to this  aspect  of the matter.  Though  certain  apprehensions have   been   expressed  by  the   appellant   as   to   the appropriateness  of the hearing of the matter by the learned Judge  whose  order is under appeal before us, the same  has not  been pursued with either before the same learned  Judge or  before  the learned Chief Justice of the High Court.   A mere  reiteration of the circumstances set forth in the said representation  will  not disentitle the appellant  to  file this special leave petition.  In that view of the matter, we overrule  the  preliminary objection raised by  the  learned counsel for the respondents.

     The  learned  Judge examined the matter as if  he  was deciding  an original proceeding before him without  bearing in mind the limited scope of Order XLI, Rule 27 CPC and on a revision  petition  filed  against  an  order  made  on  the application  filed  by  the respondents  the  learned  Judge proceeded  to  advert  to  the   nature  of  the  facilities available  in the Forensic Science Laboratory, Government of N.C.T.,  Delhi.   The  observations   made  by  the  learned District  Judge on the application filed by respondents were held  to be not appropriate by the learned Judge.  The  view expressed  by  the  learned  District Judge  was  termed  as fallacious.   The High Court took the view that the latest facility  was not available at the time when the parties led the  evidence  before the trial court and if  this  facility became  available only in the year 1999 and if the plaintiff wants  to  get  the  disputed  documents  examined  by  such Laboratory,  it  could  not be said that it will  not  be  a sufficient   cause  to  permit   the  plaintiff  to   adduce additional  evidence during the pendency of the appeal.   On that  basis the learned Judge proceeded to order that it was not  appropriate  exercise of the discretion vested  in  the trial court and would require interference by the High Court in the original jurisdiction.

     Before  we  proceed further we would like to refer  to the  scope  of an application under Order XLI, Rule 27  CPC. Section  107  CPC  enables  an   appellate  court  to   take additional  evidence or to require such other evidence to be

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taken  subject  to  such conditions and limitations  as  are prescribed  under  Order XLI, Rule 27 CPC.  Principle to  be observed  ordinarily is that the appellate court should  not travel outside the record of the lower court and cannot take evidence  on  appeal.   However, Section 107(d)  CPC  is  an exception  to the general rule, and additional evidence  can be  taken only when the conditions and limitations laid down in the said rule are found to exist.  The court is not bound under  the circumstances mentioned under the rule to  permit additional  evidence and the parties are not entitled, as of right,  to the admission of such evidence and the matter  is entirely  in  the  discretion  of the court,  which  is,  of course,  to  be  exercised judiciously and  sparingly.   The scope  of  Order XLI, Rule 27 CPC was examined by the  Privy Council in Kesowji Issur v.  G.I.P.Railway, AIR 1931 PC 143, in  which it was laid down clearly that this rule alone  can be  looked  to for taking additional evidence and  that  the court  has  no jurisdiction to admit such evidence in  cases where  this  rule  does not apply.  Order XLI, Rule  27  CPC envisages certain circumstances when additional evidence can be  adduced :  (i) the court from whose decree the appeal is preferred  has refused to admit evidence which ought to have been  admitted,  or  (ii)  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 (iii) 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, it is not the case  of  either party  that the first situation is attracted.  So far as the second  circumstance noticed above is concerned, question of exercise  of  due  diligence  would not  arise  because  the concerned  scientific  laboratory from which examination  is sought to be made itself was not in existence at the time of trial  and  so  that clause is also not attracted.   In  the third  circumstance  the  appellate court  may  require  any document  to  be produced or any witness to be  examined  to enable   it  to  pronounce  judgment,   or  for  any   other substantial   cause.   The  expression   to  enable  it  to pronounce  judgment  has been subject of several  decisions including  Syed Abdul Khader v.  Rami Reddy & Ors., AIR 1979 SC  553  wherein it was held that when the  appellate  court finds  itself unable to pronounce judgment owing to a lacuna or  defect  in  the  evidence as it  stands,  it  may  admit additional evidence.  The ability to pronounce a judgment is to  be  understood  as the ability to pronounce  a  judgment satisfactory to the mind of court delivering it.  It is only a  lacuna  in  the evidence that will empower the  court  to admit additional evidence [ See :  The Municipal Corporation of  Greater  Bombay  v.  Lala Pancham & Ors.,  AIR  1965  SC 1008].  But a mere difficulty in coming to a decision is not sufficient  for admission of evidence under this rule.   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, that this rule would apply as noticed by the Privy Council  in Kesowji Issur v.  G.I.P.Railway [supra].  It  is under  these circumstances such a power could be  exercised. Therefore,  when the first appellate court did not find  the necessity to allow the application, we fail to understand as

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to  how the High Court could, in exercise of its power under Section  115 CPC, could have interfered with such an  order, particularly  when the whole appeal is not before the court. It  is  only in the circumstances when the  appellate  court requires  such  evidence  to   pronounce  the  judgment  the necessity  to adduce additional evidence would arise and not in  any other circumstances.  When the first appellate court passed  the order on the application filed under Order  XLI, Rule 27 CPC, the whole appeal was before it and if the first appellate  court  is satisfied that additional evidence  was not required, we fail to understand as to how the High Court could  interfere  with such an order under Section 115  CPC. In  this regard, we may notice the decision of this Court in Gurdev  Singh  & Ors.  vs.  Mehnga Ram & Anr., 1997 (6)  SCC 507,  in which the scope of exercise of power under  Section 115  CPC  on an order passed in an application  filed  under Order  XLI, Rule 27 CPC was considered.  When this  decision was  cited before the High Court, the same was brushed aside by  stating  that  the  principle   stated  therein  is  not applicable  to the facts of this case.  We do not think  so. The  High  Court ought not to have interfered with  such  an order.

     Shri Gopal Subramanium, learned senior counsel for the respondents,  submitted that now that the documents had been sent  to  the concerned Laboratory and the opinion had  been ascertained,  the  matter can certainly be examined  by  the court.   We  cannot agree as this trend, if  allowed,  would result  in that at any stage of the case either in the first appeal  or  the  second appeal, the additional  evidence  is sought  to  be adduced on the ground that better  scientific evidence  can be adduced, the process would become unending. It  is only in the circumstances prescribed under Order XLI, Rule  27 CPC such power can be exercised.  He contended that if the order of the High Court could not be sustained on the ground  that the entire appeal was not before it, the  order of  the  first  appellate  court also  cannot  be  sustained because  while  examining the effect of the evidence in  the course  of the appeal, the application under Order XLI, Rule 27  CPC could have been dismissed.  But the argument ignores the  fact  that if the first appellate court had  deemed  it necessary   to  allow  the   parties  to  adduce  additional evidence,  it ought to have examined the entire evidence and when  it  was  rejecting the application, it felt  that  the evidence  already  on record was sufficient one way  or  the other.   In  that  view  of the matter, we do  not  wish  to express  any  opinion  on this matter as it is open  to  the parties  to urge that aspect of the case in the appeal  that is pending before the High Court.

     We,  therefore, allow this appeal, set aside the order made  by  the  High  Court and restore  that  of  the  first appellate  court.  However, we are making it clear that  its correctness  can be challenged by the aggrieved party in the appeal that is pending before the High Court, if permissible under  law.  The appeal is allowed accordingly.  However, in the circumstances of the case, we make no order as to costs.