FERANI HOTELS PVT. LTD Vs. NUSLI NEVILLE WADIA

JUDGEMENT

(1.) The Appeal, in which the Chamber Summons has been taken out, arises from a decision of a learned Single Judge dated 15 December 2010 dismissing a Miscellaneous Petition seeking : (i) revocation or annulment of an order dated 20 November 2003 authorizing and permitting the Respondent to continue as an Administrator of the estate of E.F. Dinshaw; and (ii) the appointment of a fit and proper person as an Administrator. The appeal has been admitted and is placed on board for hearing and final disposal. The Chamber Summons has been taken out under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 ('the Code') for allowing the Appellant to produce additional evidence consisting of fifteen documents of which a list has been appended as a schedule to the Chamber Summons. When the Chamber Summons came up for hearing on 1 August 2012, this Court noted in its order that save and except for a bald averment in paragraphs 13 and 15 of the affidavit-in-support to the effect that the Appellant had come in possession of "certain crucial information" subsequent to the dismissal of the Miscellaneous Petition, no basis had been indicated to establish [as required by Order XLI, Rule 27(1)(aa)] that notwithstanding the exercise of due diligence, such evidence was not within the knowledge of the Appellant and/or could not after the exercise of due diligence be produced by it at the time when the decree appealed against was passed. The Court, inter alia, observed as follows :

(2.) Before we deal with the Chamber Summons, it will be necessary to revisit some of the basic principles that govern the exercise of the jurisdiction under Order XLI, Rule 27 of the Code. Order XLI, Rule 27 of the Code provides as follows :

(3.) The general principle which Order XLI, Rule 27 of the Code enunciates is that parties to an appeal shall not be entitled to produce additional evidence, oral or documentary. However, the provision carves out an exception in Clauses-(a), (aa) and (b) in specified situations where the Appellate Court may allow such evidence or documents to be produced or a witness to be examined. The Appellant, in other words, has no right to insist upon additional evidence being produced at the stage of appeal. The discretion which is conferred upon the court has to be exercised in consonance with the parameters which have been enunciated in the statute. Hence, it is only where a clear case is established within an exception carved out to the general rule, that an application for production of additional evidence at the appellate stage can be allowed. Clause(a) which consists of the first exception to the Rule is where a Court whose decree is appealed has refused to admit evidence which ought to have been admitted. That, admittedly is not involved in these proceedings. The second exception is contained in Clause(aa) which was brought on the statute by the Amending Act of 1976. Under Clause(aa), a party seeking to produce additional evidence has to establish that : (i) notwithstanding the exercise of the due diligence, such evidence was not within his knowledge; or (ii) after the exercise of due diligence, the additional evidence could not be produced by him at the time when the decree appealed against was passed. The first part of Clause(aa) is based on the absence of knowledge despite the exercise of due diligence. The second part of Clause(aa) deals with non-production of additional evidence before the Trial Court despite the exercise of due diligence. The exercise of due diligence is the common element underlying both the parts of clause (aa). Litigating parties must exercise due diligence when they pursue their remedies at trial. If a party has not been diligent in producing evidence at the trial, its indolence cannot be overcome by producing evidence in appeal. The requirement of the existence of diligence is a carefully engrafted condition which attaches to the exception carved out by clause (aa). Clause(b) is the third exception which confers upon the Appellate Court the power to require a document to be produced or any witness to be examined to enable it to pronounce a judgment or for any other substantial cause. The power which is conferred by Clause(b) is one which is vested in the Appellate Court where the Court requires a document to be produced or a witness to be examined to enable it to pronounce its judgment. The Appellate Court may also allow an application for additional evidence for any other substantial cause.