Pammi Devi vs Dinesh Kumar

Heard learned counsel for the appellant and perused the record.

Present appeal has been filed against the judgment and decree dated 30.11.2017 passed by learned Principal Judge/Additional District Judge, Family Court, Lucknow in Original Suit No. 594 of 2001 (Dinesh Kumar Vs. Smt Pammi Devi) under Section 9 of the Family Court Act.

During the pendency of present appeal, appellant has moved an application (C. M. Application No. 60884 of 2019) for permission to produce additional evidence.

Learned counsel for the appellant while pressing the application in question in appeal submits that when the application under Section 9 of the Hindu Marriage Act came under consideration before the trial court, the appellant handed over the copy of the judgment dated 26.06.2015 convicting the respondent/ Dinesh Kumar and his brother under sections 498A,323 IPC and 4 Dowry Prohibition Act to her counsel for producing the same before the trial court but the same was not filed by her counsel before trial court due to reason best known to him, so in view of the said fact, the present application has been moved by the appellant invoking the provisions as provided under Order XLI Rule 27 C.P.C. The same be taken on record.

Addition evidence shall not be allowed in appellate court unless one of these conditions is satisfied: (a) improper refusal of evidence by trial court which ought to have been admitted, or (b) non production of evidence notwithstanding exercise of due diligence, or (c) requirement of the appellate court itself for pronouncing judgment, i.e. impossibility to pronounce judgment without the additional evidence; or (d) any other substantial cause.

The discretion given is strictly circumscribed by the limitations specified in the rule. If the additional evidence is allowed contrary to the principles governing its reception it will have to be ignored as if it is non existent. The rule was not intended to enable a party to patch up the weak parts of his case, to fill in lacunae left in the trial court. Section 151 can in no circumstances be invoked in a case covered by this rule.

An application for admitting additional evidence in a review petition in second appeal cannot be entertained under Order XLI Rule 27 C.P.C.,as the same is not applicable to review petition.

When application is made at a late stage to put in evidence res noviter ad notitiant preventa, one of the primary duties of the applicant is to show that it was owing to no want of diligence on his part that the matter was not discovered before [Kachireddi v. Sakirddi, 31 CWN 246: 52 MLJ 492: 100 IC 77 PC].

If a party did not produce his documents in the lower court when he had opportunity, his application to produce them at a belated stage has to be rejected.

Recently in the case of Jagdish Prasad Patel (dead) through legal representative and another Vs. Shivnath and others (2019) 6 SCC 82 Hon'ble the Apex Court has held as under:-

"Under Order XLI Rule 27 CPC, production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are:

(I) Where the trial Court had refused to admit the evidence though it ought to have been admitted;

(II) the evidence was not available to the party despite exercise of due diligence; and

(III) the appellate Court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.

An application for production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, court can receive additional documents.

In Union of India v. Ibrahim Uddin & Another, (2012) 8 SCC 148, this Court held as under:-

"36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy AIR 1963 SC 1526, Municipal Corpn. of Greater Bombay v. Lala Pancham AIR 1965 SC 1008, Soonda Ram v. Rameshwarlal (1975) 3 SCC 698 and Syed Abdul Khader v. Rami Reddy (1979) 2 SCC 601.)

37.The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co. (1978) 2 SCC 493)

The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal."

Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed."

Thus the party seeking to produce additional evidence, whether oral or documentary additional evidence, is to establish that notwithstanding to 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.

In the instant matter plea which has been taken by the appellant is to the effect that the document i.e. judgment dated 26.06.2015 was given by the appellant to her counsel to file the same by way of evidence during trial but her counsel did not file the same as such the same may be taken as additional evidence.

Because after giving the document to her counsel to file by way of evidence during trial thereafter the duty is casted upon on her to inquire/ ensure that said document has been filed as evidence but in the present case the said step has not been taken, so the appellant herself is negligent and does not exercise due diligence in order to bring the same on record by way of evidence.

Thus, the plea taken by the appellant to bring the document on record by way additional evidence is not in accordance with the provisions of Order XLI Rule 27(1) (aa) C.P.C.

In view of the said fact as well as the fact as stated above we do not find any merit in the application in question.

In the result, the application in question lacks merit and is rejected.