SALIMA KHATOON Vs. PREM RANI

JUDGEMENT

(1.) The plaintiff Smt. Prem Rani filed a suit for recovery of Rs.25,200/- and possession in respect of H.No.1749 situated in Hathikhana, Pul Bangash, Delhi against Mst. Salima Khatoon and others, the defendants in the suit. Vide judgment and decree dated 4.8.1999, the suit was decreed for recovery of Rs.3,600/- on account of damages for the period from 01.06.1982 to 31.05.1985 and for possession against defendant Nos.1 to 6. Being aggrieved, they filed the present regular first appeal. Along with the appeal, the appellants also filed an application under Order 41 Rules 25 and 27 read with Section 151 of the CPC for framing of additional issues and permission to lead additional evidence in light of the annexures annexed to that application. It was stated in this application that there was a serious question to be determined as to whether there existed a relationship of lessee/tenant in favour of appellant No.1 and even if there was a license in favour of the said appellant, even then, the same was irrevocable on the ground that appellant No. 1 in exercise of her right to enjoy the subject property for the purposes of running her shop and residence, has carried out works of permanent nature including re-plastering of walls etc. It is also averred that appellant No.1 was prosecuting the case and due to her illness and pressure of litigation as various cases were pending, the documents could not be placed on record. In paragraph 6 of this application, the following issues have been suggested:-

(2.) No reply to this application has been filed though the appeal has been pending for number of years but the application was vehemently opposed. During the course of arguments, it was argued on behalf of non-applicants that the appellants had amended the written statement on three different occasions and they had taken up the pleas in the written statement that of tenancy and in alternative that of owners being by adverse possession. It was argued that the application has been filed primarily even to further delay the disposal of the appeal and is an abuse of the process of law. In the written statement filed, ownership of the plaintiff was denied and it was stated that she has no right, title and interest in the property. It was stated that one Sh.Roshan Lal was the tenant on the ground floor of the property and the husband of appellant No.1 and father of other defendants on vacating of the premises by Sh.Roshan Lal occupied the same along with his wife and children and defendant No. 1 was accepted as a tenant. Then by subsequent amendments, they had also claimed to be owners by adverse possession. Learned counsel for the appellants contended that the lease and license have to depend upon the intention of the parties, they are distinct and in either of them since improvements were made, both of them have become permanent and, thus, the court could not pass a decree for possession. In any case, the claim of adverse possession/the claim of accession of land in face of a license, could be raised even by a lessee and that is what the appellants wish to prove by seeking additional issues/permission to lead additional evidence. In this regard he has relied upon the judgments in the cases of Mrs. M.N. Clubwala and another v. Fida Hussain Saheb and others AIR 1965 SC 610, Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316 and Chapsibhai Dhanjibhai Dand v. Purushottam AIR 1971 SC 1878. In support of their arguments that the provisions of the CPC are not mandatory and they should be liberally construed to grant leave to lead additional evidence, reliance was also placed upon judgment of the Supreme Court in the case of K. Venkataramiah v. A. Seetharama Reddy and others AIR 1963 SC 1526.

(3.) The provisions of Order 41 Rules 25 and 27 do vest a wide discretion in the appellate court to frame additional issues and to grant permission to the parties to lead additional evidence. This power has to be exercised in accordance with the settled canons of law and cannot be so liberally exercised so as to frustrate the very object and purpose of these provisions. Firstly, the application filed under these provisions must be a bonafide act on the part of the applicant and secondly, the party must be able to show that despite exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time or before passing of the decree appealed against. Wherever an application for additional evidence is allowed by the court, the appellate court is required to record reasons thereof. At this stage itself, reference can be made to the case of The Executive Engineer and Ors. v. M/s. Machinery Parts Corporation 2006 VI AD (DELHI) 243, where the court held as under:-