Tarlok Singh Chauhan JUDGMENT
Tarlok Singh Chauhan, J.
1. This petition under Article 227 of the Constitution of India takes exception to the order passed by the learned Additional District Judge (I), Mandi, H.P. whereby he allowed the application filed by the respondent for leading additional evidence under Order 41 Rule 27 of the Code of Civil Procedure (for short 'Code').
2. The facts as necessary for the disposal of this petition are that the petitioners/plaintiffs filed a suit for declaration along with consequential relief of injunction with the prayer that they be declared as legal heirs of Gian Chand and mutation attested in favour of Smt. Shivdei is wrong, illegal and null and void and the Will dated 14.07.2000 is also fake and not genuine and, therefore, not binding on the right, title and interest of the petitioners/plaintiffs.
3. The respondent/defendant contested the suit on various grounds. After completion of the pleadings, the learned trial Court framed the issues and thereafter the parties led evidence.
4. On completion of the evidence of the respondent/defendant, he moved an application under Order 8 Rule 1-A of the Code for production of mutation dated 14.08.2003 whereby the house belonging to Smt. Shivdei was alleged to have been mutated in the names of her brother's sons Sh. Yash Pal and Som Raj, however, the said application was rejected. The suit culminated into a decree being passed in favour of the petitioners/plaintiffs and the said decree has been assailed by the respondent and is pending adjudication before the learned Additional District Judge, Mandi.
5. During the pendency of the civil appeal, the respondent/appellant filed an application under Order 41 Rule 27 of the Code for producing certain documents including mutation dated 14.08.2003. The same was allowed by the learned first appellate Court and aggrieved thereby, the petitioners have filed the instant petition.
6. It is vehemently contended by the learned counsel for the petitioners that the respondent had not approached the Court with clean hands and had not disclosed that similar application had already been filed by the respondent before the trial Court which had been dismissed and the said order having not been assailed would now operate as res judicata. The petitioners have also raised the plea of estoppel and have further pleaded that in absence of there being any due diligence on the part of the respondent, the application could not have been allowed.
7. On the other hand, learned counsel for respondent would support the order and urge that the same has been passed within the four corners of law and, therefore, deserves to be upheld.
I have heard the learned counsel for the parties and have gone through the records of the case.
8. Adverting to the plea of res judicata, it is not in dispute that an application for producing on record the mutation dated 14.08.2003 was filed before the learned trial Court and the same was rejected. Admittedly, the said order has attained finality inasmuch as the same was neither assailed by filing a revision petition nor by filing a petition under Article 227 of the Constitution of India and above all the same was also not assailed under Section 105 of the Code while filing the first appeal.
9. In the subsequent application filed by the respondent under Order 41 Rule 27 of the Code, has sought permission to lead additional evidence by placing on record the copies of registered Will dated 23.04.1994, mutation No. 361 dated 14.08.2003, mutation No. 156 dated 05.01.1982, death certificate of Smt. Shivdei, copy of order dated 10.05.2002 passed by the Commissioner (DC), Mandi and affidavit of Smt. Savitri Devi dated 26.07.2004. However, it is not in dispute that mutation No. 361 dated 14.08.2003 itself makes a mention of the Will that is sought to be produced on record.
10. During the course of hearing, the respondent was asked as to whether he intended to place on record the original Will or the certified copy of the Will and it was candidly conceded that all the documents that the respondent intended to place on record by way of additional evidence were only the certified copies and not the originals. Obviously, at the time of filing of earlier application for placing on record the mutation No. 361 dated 14.08.2003, all these facts were well within the knowledge of the respondent and if that be so, it can conveniently be held that the application lacked bonafides and the respondent failed to exercise 'due diligence'.
11. Order 41 Rule 27 of the Code, as amended, reads thus:-
"27. Production of additional evidence in Appellate Court
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
[(aa) 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]
(b) 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, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
12. 'Due diligence' is the idea that a reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. The term 'due diligence' is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in given situations. A party requesting a relief stemming out of a claim is required to exercise due diligence and it is a requirement of law which cannot be dispensed with. The term 'due diligence' determines the scope of a party's constructive knowledge and claim and is very critical to the outcome of the suit.
13. Adverting to the application filed under Order 41 Rule 27 of the Code, it would be necessary to advert to the contents of paras 6 and 7 thereof which read thus:-
"6. That the aforesaid documents are essential for the just decision of the case and are necessary to decide the controversy arisen between the parties. These documents are the copies of the public records and are per se admissible in evidence. And it will assist this learned Court to arrive at right conclusion.
7. That these documents were not in the possession of the applicant when the evidence was led by the appellant in the trial Court. After great efforts the applicant has procured these documents during the pendency of the appeal. Hence this application at this stage."
14. A perusal of the aforesaid averments would show that even though the respondent appears to have been aggrieved by the initial rejection of his application under Order 8 Rule 1-A of the Code whereby he had sought to place on record mutation No. 361 dated 14.08.2003, yet he did not assail the order immediately thereafter or even in the grounds of appeal that was filed before the learned first appellate Court.
15. That apart, the averments made in the application are false inasmuch as what the respondent was seeking to place on record were only the certified copies of the documents which could have been conveniently procured from the various Officers/Authorities, particularly, when these documents were copies of public records as per the case set up by the respondent himself.
16. As per the provisions of Order 41 Rule 27(1) (aa) of the Code, a party can seek liberty to produce additional evidence at the appellate stage and the same can be permitted only if the evidence sought to be produced could only be produced at the stage of trial in spite of exercise of due diligence and the evidence could not be produced as it was not within its knowledge and hence was fit to be produced by the appellant before the appellate forum.
17. It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal which specifically incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed or permitted to be done at the leisure or sweet-will of the party.
18. As already observed above, there is nothing on record to indicate and rather it is not even the case of the respondent that despite due diligence it was not within his knowledge that such additional evidence sought to be produced by him did exist before the conclusion of the trial. Once, the public documents were within the knowledge of the respondent, they ought to have been produced at the time of the trial and in this case the application for producing on record the mutation No. 361 dated 14.08.2003 already stood rejected and admittedly the said order has attained finality.
19. The learned Additional District Judge vide the impugned order had though reproduced the provisions of Order 41 Rule 27 of the Code, but unfortunately, he did not even care to go into the question whether there was due diligence on the part of the respondent before moving the application in question as per the mandate of Rule (aa) supra.
20. Having said so, the order passed by the learned Additional District Judge (I), Mandi, H.P., on 13.12.2017 cannot withstand judicial scrutiny and is accordingly set aside.
21. The petition stands allowed in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of. Interim order dated 27.02.2018 stands vacated.
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