Mahinder Singh vs Charan Singh

M.L. Mehta, J.

CM 17137/2012 (exemption)

Exemption allowed, subject to all just exceptions.

Application stands disposed of.

CM (M) 1086/2012 & CM 17136/2012

This petition is directed against the order dated 18.07.2012 of ADJ, whereby the application of the petitioners, who were the plaintiffs in the suit

and the appellants before the Appellate Court in RCA No. 18/2010, under order XLI Rule 27 read with Section 151 CPC, was dismissed. Since

a short controversy is raised in the instant petition and I have heard the Learned Counsel appearing for petitioners as also the respondent No.

8/MCD, no notice is required to be issued to the private respondents.

The appellants had challenged the order of dismissal of their suit by the Civil Judge before the Appellate Court of ADJ. There, they filed an

application under order XLI Rule 27 read with Section 151 CPC for adducing additional evidence to place on record certified copy of layout plan

of MCD to substantiate that the private respondents have encroached upon the public land at the T-Point, as reflected in the lay out plan of the

MCD, certified copy of which is sought to be placed on record and proved.

It is noted that the learned ADJ has observed that PW1 Suresh Kumar was cross examined on the sanctioned site plan as well as layout plan,

whereas, it is submitted by the Learned Counsel for the petitioners, and rightly so, that no layout plan was available at that time, and so, there was

no cross examination of Suresh Kumar in this regard. Since the controversy was only as to whether there was any encroachment by the

respondents at T-Point or not, the production of this plan appears to be relevant and necessary for the just decision of the case.

Having heard the counsel for the petitioners and Learned Counsel appearing for the respondent/MCD and on going through the impugned

order, I am of the view that the learned ADJ ought to have exercised his discretion u/s 107 CPC read with order XLI Rule 27 CPC to permit

taking on record certified copy of the lay out plan. These provisions confer wide discretion on the court to accept or not the additional evidence. In

the case of Mahavir Singh & Ors. Vs. Naresh Chandra & Anr., 2001 (2) Civil Court Cases 708 (S.C.), the Supreme Court observed as under;

Section 107 CPC enables an appellate court to take additional evidence or to require such other evidence to be taken subject to such conditions

and limitations as are prescribed under order 41 Rule 27 CPC. The principle to be observed ordinarily is that the appellate court should not travel

outside the record of the lower court and cannot take evidence on appeal. However, Section 107(d) CPC is an exception to the general rule, and

additional evidence can be taken only when the conditions and limitations laid down in the said rule are bound to exist. The court is not bound

under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right to the admission of such

evidence and the matter is entirely in the discretion of the court, which is, of course, to be exercised judiciously and sparingly"".

The above judgment was referred to and relied upon in Ashok Kumar Vs. Aman Kumar & Ors., 2010 (2) Civil Court Cases 012 (P&H),

wherein it was observed as under:

While further elaborating the section, the Apex Court in the aforesaid case elaborated the words ""to enable it to pronounce judgment"" as used in

order 41 Rule 27(b) CPC the ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind

of the court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence, therefore, the old perception

stating that no additional evidence could be accepted for filling up the lacuna has been removed by the Apex Court in Mahavir Singh''s case

(supra), rather it observed that words ""or for any other substantial cause"" must be read with words ""requires"", it means that the court could

exercise its power of accepting the additional evidence when it requires for any substantial cause.

In view of my above discussion, the impugned order is set aside. The matter is remanded back to the court of ADJ with one opportunity being

afforded to the petitioners to prove the certified copy of the lay out plan, with the liberty of an opportunity of rebuttal to the private respondents.

With the above directions, the petition stands disposed of. Dasti.