VEERAMMA Vs. H S RAMAIAH

JUDGEMENT

(1.) ONCE again, this civil revision petition raises an age-old question which has now become one of some consequence as to whether, belated applications for entertaining additional evidence should indiscriminately be allowed by the court on the basis of the totally untenable averment that the document was misplaced and therefore could not be produced earlier. In this case, a suit was instituted in the year 1985 and it came to be decreed in the year 1990. The present petitioner was the third defendant to that proceeding and she filed a regular appeal No. 76 of 1990. Two years later, in the year 1992 la. Ii was filed whereunder the appellant contended that she desired to produce by way of additional evidence a document which would indicate that part of the lands in dispute had not only been decreed in her favour but that the possession thereof had also been handed over to her. This was objected to by the respondents particularly on the ground that no case has been made out as to why this document had not been produced before the trial court or before the appeal court at an earlier point of time and that consequently, the appeal court should refuse to permit additional evidence. The appeal court heard the parties and by order dated 1-9-1992 rejected la. Ii particularly on the ground that the application was hopelessly belated and also since no valid reasons had been adduced in support of the legal requirement that the party had been prevented or precluded from producing that document earlier. It is against this order that the present civil revision petition has been filed.

(2.) PETITIONERS' learned Advocate submitted in the first instance that such a piecemeal decision was incorrect and he used the expression 'piecemeal' because she submitted that the la. Should have been taken up for consideration only when the appeal was being heard as the court would have been in a position to carefully evaluate as to how important or otherwise the document was and to decide whether the overall interests of Justice basically require that document to be looked at by the court. Her submission was that the justification for the late production is a secondary issue because the courts are essentially required to decide cases on merits after taking into consideration all relevant materials and if something as vital as the present document which was virtually a decree of a court, for whatever reason had not come before the court earlier, that irrespective of all other circumstances it is obligatory on the part of the appeal court to look into it. She submitted that this is a predominant and overriding consideration which would outweigh everything else. In support of her plea regarding the timing, he has relied on an earlier decision of this court in Sreenivasa Krishnappa Bilagi v Shivappa Channabasappa, wherein this court held that an application for amendment of the plaint filed at the appellate stage should be considered at the stage of hearing the appeal and not earlier. The learned Advocate submitted therefore that the order should be set aside and that the court be directed to reconsider the matter when the appeal is heard. As regards the question of timing, I need to observe that there is no such inflexible rule. It may be in given cases more appropriate for a court to consider a question arising in an interim application at the stage of final hearing but there may be compelling reasons why this may not be the desirable course of action. That discretion is left to the courts hearing the matter and one needs to observe that if as a result of the grant of an interim application some further steps need to be taken such as carrying out an amendment, that it may be far more desirable to hear such an application at an earlier stage so that the procedures be completed and the objection be heard once and for all. Conversely, it may be appropriate in other cases where the la. Requires some degree of reference to the merits of the record to hear it once and for all with the main matter in order to save judicial time. That however is not an inflexible Rule and will not vitiate the present order on that ground.

(3.) PETITIONER's learned Advocate submitted that the appellant has mentioned in her application that the document had been misplaced and that this was the reason why it was not produced before the appeal court. As against this, respondents' learned Advocate has submitted that such lame and flimsy grounds should be totally discarded by courts in so far as a party who has committed a default must set-down very precisely and very cogently as to what was the reason why the evidence has not been produced earlier. The requirements of law as the learned Advocate points out, with reference to order 41, Rule 27, are in order that the party concerned must aver and demonstrate to the satisfaction of the court that despite due diligence which means that substantial efforts having been made, it was not possible to produce that evidence at an earlier point of time. The requirements of order 41, Rule 27 also presupposes that it must be pointed out as to at what point of time the evidence became available and whether the party has approached the court immediately thereafter. In the present instance, the learned trial judge has observed that the suit was of the year 1985, that on the petitioner's own admission the document was with her since the year 1989 which was one year prior to the decree being passed by the trial court and no efforts were made to produce this material before the trial court. The appeal was filed in the year 1990 and for two years thereafter no steps were taken to produce this material. This case brings one straight into the arena of numerous instances where applications are made on the eve of the final disposal of a suit or an appeal with the sole purpose of sabotaging the hearing. A belated application may therefore not be permitted by the court and if in exceptional cases the court were to permit it, it can be on the basis of very cogent and very valid material. It has become the order of the day to file cryptic applications that are totally devoid of substance, that do not set-out the ingredients of law and more importantly, do not make out any case on facts. The court would be wrong and totally unjustified in law in allowing any such applications. Petitioner's learned Advocate finally resorted to the "sympathy" angle and submitted that irreparable damage would be caused to the petitioner if the application were to be rejected. She submitted that the document is vital and that it would make a big difference to the appeal. Those are aspects of the matter which the court would be precluded from looking into because the aspect of showing sympathy to one party at the expense of the opposite one is something which the law does not contemplate. If the document was of such vital importance, the petitioner who has litigated upto the high court and those who are representing the case on her behalf, would never have kept the document back for three years. It is in these circumstances that this court will have to apply the Rule of finality. It is high time that parties and those conducting cases on their behalf, therefore, take cognizance of the fact that there is a Rule of finality in relation to the production of evidence and that a few exceptions which the law makes and provides for are in those cases where there are genuine, valid and cogent grounds. Where there is some degree of default that may have taken place, even in such instances, the burden on the party asking for indulgence is a heavy one and this duty is not to be loosely construed. Unless that burden is discharged, it would be totally a breach of the Provisions of order 41, Rule 27. It is undoubtedly true that the argument advanced in this case would be advanced in every such case that the court should bend over backwards and make allowances in favour of the petitioners but this being the reason why litigations are dilated, the time has now come to apply the law correctly and disallow all such procedures. The consequences of the default are to be presumed particularly in cases of the present type where the defaults are gross. Even in such cases, the courts do make allowances provided there is material for such a procedure. In the present instance, respondents' learned advocate is right when he submits that the record is totally devoid of any such material.