HIMANSHU Vs. BISHAN DUTT

JUDGEMENT

(1.) THIS Revision petition is directed against the order dated 1st April, 2004 passed by the learned District Judge, Solan, in C.M.A. No. 96 of 2004. Vide the impugned order, the learned District Judge while allowing the application filed by respondent No. 1 herein Bishan Dutt, permitted him to lead additional evidence before the lower Court in terms of Clause (a), Sub rule (1), Rule 27 of Order 47 C.P.C.

(2.) THIS case was being heard by a Single Bench of this Court in normal course on 9th August, 2005 and it was in the course of the hearing of this petition by a Single Bench that a point of law was canvassed by Mr. G.D. Verma, learned Senior Advocate appearing for the petitioner that while exercising jurisdiction under Order 41 Rule 27 C.P.C. with respect to the prayer of a party for leading additional evidence, it was not open to the appellate Court to consider the application/prayer for leading additional evidence at any stage of the appeal prior to the stage of final hearing of the appeal. In other words, the contention raised by Mr.G.D. Verma was that it was not open to an appellate court while exercising jurisdiction under Order 41 Rule 27 C.P.C. to consider the application/prayer for leading additional evidence at the initial stage of the appeal or even at an intermediate stage because Order 41 Rule 27 C.P.C., according to Mr. G.D. Verma, enjoined a duty and cast an obligation upon the appeal Court to take up the prayer for leading additional evidence only at the stage of the final hearing of the appeal. According to him, since in the present case, the learned Court below took up the prayer for leading additional evidence at an intermediary stage of the appeal, admittedly, when the appeal was not taken up for final hearing, there was an error of exercise of jurisdiction arid on that ground, the impugned order was bad in law. Noting the aforesaid contention of Mr. G.D. Verma, the single Bench of this Court while hearing the petition on 9th August, 2005 was of the view that the point of law being important and having an implication of far reaching importance, it would be desirable to have the matter referred to a Division Bench for a more authoritative pronouncement on the subject. It is in this background that this petition was heard by a Division Bench of this Court.

(3.) A careful reading of Rule 27 in its entirety clearly suggests that three distinct situations are contemplated under this Rule, each of which caters to different contingencies relating to the production of additional evidence in the course of pending appeal. Whereas Clause (a) stipulates a situation where the trial court from whose decree the appeal is preferred and is pending in the appeal Court has refused to admit evidence which ought to have been admitted; Clause (aa) suggests of a situation where the party seeking to produce additional evidence in the appeal Court establishes that notwithstanding exercise of due diligence by him such evidence was not within his knowledge or could not, after exercise of due diligence be produced by him in the trial before the passing of the decree by the trial Court. In total contra distinction to Clause (a) and Clause (aa), Clause (b) suggests of a situation where rather than a party acting under Clause (a) or Clause (aa), the appeal Court takes upon itself the task and requirement of considering if any document is to be produced or any witness is to be examined, by way of additional evidence, with a view to enable it to pronounce judgment, or for any other substantial cause.