State of Punjab and Another vs Smt. Parmodh Bala

R.N. Mittal, J.—This Second Appeal has been filed by the Defendant-Appellants against the judgment and decree of the District Judge, Gurdaspur, dated March 14, 1985.

Briefly, the facts are that the Plaintiff-Respondent was a permanent Government Servant and was working as a Crafts Teacher in Government Middle School Agampur, District Rupnagar She was transferred from the said school by the Director of Public Instruction (Schools) vide order, dated December 16, 1980 to K.F.C Government High School, Pathankot. She was relieved by the Headmaster, Government Middle School, Agampur on December 23, 1980. She reported for duty to the Headmaster, K.F.C Government High School, Pathankot on December 24, 1980, where she was not allowed to join the duty. The Headmaster, K.F.C. Government High School wrote a letter to the District Education Officer, Gurdaspur informing him about the aforesaid matter. It is alleged by her that as she was transferred to K. F. C Government High School, Pathankot, it was the duty of the Headmaster of the said school to allow her to join that school and to give her work. She was, however, not permitted to join the duty and given any work. Consequently, she filed a suit for mandatory injunction that the district Education Officer-Defendant No. 1 be directed to allow her to join at K.F.C. Government High School, Pathankot and she be assigned duty there.

The suit was contested by the Defendant-Appellants, who inter alia pleaded that the order of transfer of the Plaintiff Respondent from the Government Middle School, Agampur to K.F.C. Government High School, Pathankot, was cancelled and, therefore, the Plaintiff was not allowed to join that school.

The learned trial Court held that there was nothing on the record to show that the transfer of the Plaintiff- Respondent to K.F.C. Government High School Pathankot had been cancelled. Consequently, it decreed the suit. The Defendants went up in appeal before the District Judge, Gurdaspur. They also moved an application under Order XLI, Rule 27 of the Code of Civil Procedure, to take on record the order of cancellation of transfer of the Plaintiff-Respondent. The learned District Judge did not allow the application for additional evidence. He further held that the Government Pleader was unable to assai the decision of the trial Court on the basis of the evidence on record. Consequently, he dismissed the appeal. The Defendants have come up in Second Appeal to this Court.

The only question that arises for determination is, whether the transfer of the Plaintiff-Respondent was cancelled. The learned Counsel for the Appellants has very fairly admitted that there is nothing on record of the trial Court to show that the transfer order, dated December 16, 1980 had been cancelled. He, however, drew my attention to the application under Order XLI, Rule 27 of the Code filed by the Appellants before the first appellate Court and another application (Civil Miscellen-sous No. 2299-C of 1985) in this Court. He vehemently contends that the Appellants should have been allowed by the first appellate Court to place on record the cancellation order of transfer, dated December 16, 1980 under the aforesaid rule. On the other hand, Mr. Sarin, learned Counsel for the Respondent has urged that the case of the Appellants is not covered by Order XLI, Rule 27 of the Code of Civil Procedure, as the Appellants were in know of the transfer order, but they never cared to place it before the trial Court. In support of his contention, he has placed relience on Arjun Singh alias Puran Vs. Kartar Singh and others,

I have duly considered the argument and agree with the submission of Mr. Sarin. Order XLI, Rule 27, Code of Civil Procedure, provides that the parties to an appeal shall not be entitled to produce additional evidence. Whether oral or documentary, in the Appellate Court. They shall, however, be entitled to do so if the Court from whose decree the appeal is preferred has refused to sumit evidence which ought to have been admitted, or 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 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. From a reading of the above rule, it is evident that the right to produce additional evidence is circumscribed by the circumstances mentioned above. While interpreting the rule in Arjan Singh''s case (supra), the Supreme Court observed that the discretion given to the appellate Court by Order XLI, Rule 27 to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in that rule. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored. The legitimate occasion for the application of Order XLI, Rule 27 is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it. It was further observed that the true test, therefore, is whether the appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.

Adverting to the facts of the present case, the Appellants did not disclose in the application under Order XLI, Rule 27 of the Code of Civil Procedure, filed in the first appellate Court and in this Court as to why this document could not be produced by them in the trial Court. They have only alleged that the production of the document is relevant and necessary for proper adjudication of the appeal. The document was within the possession of the Appellants and with due diligence they could produce the same at the trial stage. However, for reasons best known to them, the Appellants did not do so. This Court does not find it necessary to take it on record to enable it pronounce judgment. No other substantial cause has been shown by the learned Counsel for the Appellants to take it on record In the circumstances, the document cannot be taken on record and read in evidence.

There is no other evidence on record to show that the order of transfer, dated March 16, 1980 of the Plaintiff-Respondent from Government Middle School, Agampur to K.F.C. Government High School Pathankot, had been cancelled. In the circumstances. I do not find any merit in the appeal. Consequently, I dismiss the same, with no order as to costs.

Civil Miscellaneous Application No. 2299-C of 1985 stands disposed of accordingly.