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Rattan Chand and Ors. Vs. Gopal Sharma - (High Court of Himachal Pradesh) (21 May 2018)

A party requesting a relief stemming out of a claim is required to exercise due diligence



In facts of present case, 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 Shivdei is wrong, illegal and null and void and the Will dated 14th July, 2000 is also fake and not genuine and, therefore, not binding on the right, title and interest of the Petitioners/Plaintiffs. 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.

On completion of the evidence of the Respondent/Defendant, he moved an application under Order 8 Rule 1-A of the Code of Civil Procedure, 1908 (CPC) for production of mutation dated 14th August, 2003 whereby the house belonging to Smt. Shivdei was alleged to have been mutated in the names of her brother's sons, 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. During the pendency of the civil appeal, the Respondent/Appellant filed an application under Order 41 Rule 27 of the CPC for producing certain documents including mutation dated 14th August, 2003. The same was allowed by the learned first appellate Court and aggrieved thereby, the Petitioners have filed the instant petition.

Regarding plea of res judicata, it is not in dispute that, an application for producing on record the mutation dated 14th August, 2003 was filed before the learned trial Court and the same was rejected. Admittedly, the said order has attained finality 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 the same was also not assailed under Section 105 of the CPC while filing the first appeal.

'Due diligence' is the idea that a reasonable investigation is necessary before certain kinds of relief are requested. 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.

As per the provisions of Order 41 Rule 27(1) (aa) of the CPC, 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. 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.

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 14th August, 2003 already stood rejected and admittedly the said order has attained finality.

The learned Additional District Judge vide the impugned order had though reproduced the provisions of Order 41 Rule 27 of the CPC, 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. The order passed by the learned Additional District Judge (I), cannot withstand judicial scrutiny and is accordingly set aside. The Petition allowed.


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