Pradeep Nandrajog, J.
1. Being the owner of property bearing Municipal No.BN-53, Shalimar Bagh (East), Delhi, Sheel Gulati entered into a written agreement to sell Ex.P-1 with Madan Mohan on October 05, 2005, recording therein that for a sale consideration in sum of Rs.2.39 crores the property shall be sold to Madan Mohan. Ex.P-1 records that the bargain was facilitated by a property dealer : Pardesi Properties ; and it is the admitted case of theparties that one Raju was carrying on business as a property dealer under the name and style Pardesi Properties . Ex.P-1 is a printed proforma, inall probability got printed by Raju. It is captioned : earnest money receipt (Bayana Rasid). In the blank spaces in the proforma the name and address of the buyer and the seller as also the property which is the subject matter of the agreement, the total sale consideration, the earnest money received and the balance due have been filled up. The date by which the sale-deed had to be executed is recorded as April 20, 2006. At the bottom of the document, in hand it is written that the balance sale consideration shall be paid in three installments : (i) Rs.50 lacs on January 20, 2006; (ii) Rs.25 lacs on February 20, 2006; and by implication the balance when the sale-deed would be executed.
2. In hand it is recorded that earnest money-cum-part sale consideration in sum of Rs.25 lacs has been received. To quote, Ex.P-1 records : Bayana Rupay : 25,00,000/- (Rupees Twenty Five Lacs only) .
3. It is the common case of the parties that two bayana receipts were executed. Ex.P-1 being with the purchaser and Ex.D-1 with the seller. The printed proforma is the same and the handwritten contents in the blank spaces is the same. The fact in issue between the parties which emerges; evidenced from the pleadings is on account of the fact that there is no writing at the rear of the Bayana Receipt which has been produced by the buyer but the one produced by the seller has the following writing thereon:-
518934 The Nainital Bank Ltd.
Dated 04/10/05 Name of Sheel Gulati by (Dharam Pal Malik)
is whether the cheque in question, Ex.DW-1/2 in sum of Rs.10 lacs forms part of the earnest money-cum-part sale consideration or whether the writing at the rear of Ex.D-1 is an addition in the Bayana receipt produced by Sheel Gulati and whether Sheel Gulati received the sum of Rs.25 lacs in cash when Ex.P-1 and Ex.D-1 were executed by the parties. The cheque had admittedly been dishonored.
4. It is the case of Mohan Madan that since, as per the agreement, Sheel Gulati was avoiding receiving further sum of Rs.50 lacs which was to be paid to her by January 20, 2006, through his lawyer, Mr.Vijay Malik Advocate he caused to be served a legal notice dated January 24, 2006, Ex.P-2 sent under Regd.A.D.Post as per postal receipt Ex.P-3, in which notice he drew attention of Sheel Gulati that under the agreement to sell she had received Rs.25 lacs on October 05, 2005 and she was to receive further sum of Rs.50 lacs by January 20, 2006 and she was avoiding receipt of Rs.50 lacs and received a response Ex.P-4 dated January 30, 2006 from Sheel Gulati slawyer Mr.Vikas Nagpal in which the lawyer asserted that Sheel Gulati had received earnest money-cum-part sale consideration in sum of Rs.15 lacs in cash and Rs.10 lacs under the cheque Ex.DW-1/2 which was issued on behalf of Madan Mohan by one Dharam Pal Malik, which cheque upon presentation was returned dishonoured by the banker on whom the cheque was drawn and therefore he being in breach of the agreement, Sheel Gulati was not obliged to take any further money from him and had forfeited Rs.15 lacs received by her from him. The suit seeking specific performance of Ex.P-1 was thereafter immediately filed by Madan Mohan pleading therein that he had paid Rs.25 lacs in cash to Sheel Gulati, which fact was admitted by her in the bayana receipt Ex.P- 1. In the suit Madan Mohan denied having tendered any cheque issued by Dharam Pal Malik as alleged by Sheel Gulati in Ex.P-4.
5. Needless to state, in the written statement filed by her, Sheel Gulati took a stand as per the legal notice Ex.P-7 sent by her lawyer under her instructions.
6. Madan Mohan did not file a replication.
7. Needless to state, the fact in issue between the parties became whether Rs.25 lacs paid by Madan Mohan to Sheel Gulati by way of earnest money-cum-part sale consideration was fully in cash or Rs.15 lacs in cash and Rs.10 lacs by means of the cheque issued to Sheel Gulati by Dharam Pal Malik.
8. At the trial Madan Mohan deposed facts as per the ones disclosed in the plaint and denied that the writing at the back of Ex.D-1 was written when the two bayana receipts Ex.P-1 and D-1 were executed by the parties. Sheel Gulati deposed facts as per the written statement filed by her. She additionally examined her daughter Shama Gulati who deposed facts as per the case pleaded by her mother. She also examined Shailander Dahiya DW-3 who deposed that a legal notice dated October 19, 2005, photocopy marked X was sent by him under instructions of Sheel Gulati to MadanMohan by means of Regd. A.D.Post and under postal certificate, photocopy of the postal receipts being mark Y and X . As per him videlegal notice mark X he had informed Madan Mohan on behalf of hisclient that cheque Ex.DW-1/2 had been dishonoured, calling upon Madan Mohan to make good the payment. Sheel Gulati also examined one Rajesh Pandey, an employee of the Nanital Bank Ltd. who proved that account No.20016720 maintained by Nanital Bank Ltd., Shalimar Bagh Branch was in the name of Dharam Pal Malik and the account opening form Ex.DW-4/2 had been filled up by Dharam Pal Malik. Relevant would it be to note that the cheque Ex.DW-1/2 is drawn on Nanital Bank Ltd., Shalimar Bagh Branch.
9. Vide impugned judgment and decree dated August 19, 2015 the learned Single Judge has held that in view of the testimony of Shailender Dahiya the three documents marked X, Y and Z were provednotwithstanding they being photocopies and thus were exhibited by the learned Judge as Ex.DX-1, Ex.DX-2 and Ex.DX-3.
10. Dismissing the suit the learned Single Judge has held that by not filing the replication the averment in the written statement by Sheel Gulati that Rs.10 lacs had been received by her through a cheque issued by Dharam Pal Malik was deemed to be admitted. The second reason given by the learned Single Judge is that the legal notice Ex.DX-1 was proved to have been served upon Madan Mohan through the receipts Ex.DX-2 and Ex.DX-3. The third reason given by the learned Single Judge is that when Sheel Gulati, through her advocate responded to the legal notice Ex.P-2 sent by Madan Mohan vide the reply Ex.P-4 a reference was made to the notice dated October 19, 2005 and Madan Mohan did not refute the contents of Ex.P-4 by a counter legal notice. The next reason given by the learned Single Judge is that he has no reason to disbelieve that the cheque Ex.DW-1/2 was issued by Dharam Pal Malik in the name of Sheel Gulati at the asking of Madan Mohan because of the fact that the bank opening account form Ex.DW-4/2 filled up by Dharam Pal Malik recorded Dharam Pal Malik s telephone number to be 27041234 which as per thetestimony of Sheel Gulati was the telephone number of Raju Pardeshi and that Sheel Gulati had not been cross-examined on this aspect of the matter.
11. Faced with the fact that admittedly the parties prepared two originals of the bayana receipt which are Ex.P-1 and Ex.D-1, the controversy in our opinion had to be resolved by examining the witness to the two receipts : Janak Raj Gulati as also Raju Pardeshi because the admitted case of the parties is that Raju Pardeshi filled up the blanks in the bayana receipt Ex.P-1 and Ex.D-1. The writing at the rear of Ex.D-1 is in the same hand of the writer who has scribed in the blank spaces in Ex.P- 1 and Ex.D-1. Meaning thereby Raju Pardeshi is the scriber of what has been recorded in hand on Ex.D-1.
12. Order 41 Rule 27 of the Code of Civil Procedure, 1908 reads as under:-
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 exam med.
(2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission.
13. A perusal of the provision would show that under three circumstances an Appellate Court can direct production of additional evidence . The first when the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; the second when a party seeks to produce additional evidence establishes that notwithstanding exercise of due diligence such evidence was not within the knowledge of the party or could not after the exercise of due diligence be produced at the time when the decree appealed against was passed; and lastly when 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.
14. In the decision reported as AIR 1963 SC 1526 K.Venkataramiah Vs. A.Seetharama Reddy and Ors. the facts were that the respondent therein, was elected to the Legislative Council of Andhra Pradesh having fulfilled the eligibility criteria for qualification including that of being above the age of 30 years on the date of the election as required under Article 173(b) of the Constitution. The appellant challenged the aforesaid election vide an election petition before the Election Tribunal, Hyderabad on the ground that the appellant was less than 30 years of age on the date of the impugned election and therefore his election was void. On a perusal of oral and documentary evidence adduced before it, the Election Tribunal rejected the appellant s documentary evidence by way of a birth register and entrytherein as unreliable to establish the respondent s correct age. The ElectionTribunal instead relied on documents of proceedings before the Judicial Committee of the Privy Council to conclude that the respondent was indeed not less than 30 years of age on the date of the impugned election or nomination and his election to the Legislative Council of Andhra Pradesh was valid. In appeal, the High Court affirmed the decision of the Election Tribunal but opined that the Election Tribunal had erroneously failed to admit evidence of the respondent by way of birth registers and entries to establish the correct age of the respondent and thereafter allowed an application made under Order 41 Rule 27 by the respondent admitting additional evidence by way of documents as also cross-examination of persons to prove the said documents. In appeal before the Supreme Court, the appellant challenged the order of the High Court of Andhra Pradesh primarily on the ground that the High Court had acted without jurisdiction by allowing additional evidence in concluding that the respondent, Seetharam Reddy, was 30 years of age on the date of the impugned election. The Supreme Court referred to an earlier decision reported as 1951 AIR 193 Arjan Singh vs Kartar Singh and opined that the Court spowers under Order 41 Rule 27 read with Section 107 of the Code of Civil Procedure to receive and admit additional evidence are discretionary that ought be exercised judicially. On the facts of the said case the Supreme Court noted that the High Court of Andhra Pradesh, upon consideration of evidence before it, had allowed additional evidence to be admitted opining that the same would assist them in establishing the respondent s correct ageat the time of the impugned election. The Supreme Court opined that the need to allow additional evidence is a requirement of the High Court and rejected the contention that the question of the respondent s age wasvitiated by reason of it being based on inadmissible evidence. The Supreme Court thereby dismissed the appeal seeking declaration that the appellant selection to the Legislative Council of Andhra Pradesh was void. In paragraph 16 and 17 the Supreme Court while expanding upon order 41 Rule 27(1)(b) opined:-
16. In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy's age if the entries in the admission registers of the School were made available. It was vehemently urged by the learned Counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence "to enable it to pronounce judgment". The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "us" to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause." There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment," it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under R. 27(1)(b) of the Code.
17. It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect become apparent on an examination of the evidence. That is why in Parsotim's case, the Privy Council while discussing whether additional evidence can be admitted observed:-
"It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent."
As the Privy Council proceeded to point out :-
"It may well be that the defect may be pointed out by a party, or that a party, may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands."
15. The best witnesses to resolve the controversy were Janak Raj Gulati, the witness to the receipt Ex.P-1 and Ex.D-1 as also Raju Pardeshi. In fact Raju Pardeshi would be an essential witness inasmuch as the disputed writing at the rear of Ex.D-1 is admittedly in his hand.
16. Accordingly, we postpone further consideration in the appeal directing Janak Raj Gulati and Raju Pardeshi to be examined as Court Witnesses at the cost to be borne by the appellant.
17. The appeal be listed before the Joint Registrar on September 26, 2016 who shall summon Janak Raj Gulati and Raju Pardeshi upon the appellant disclosing their address and upon the appellant depositing the process fee and diet money. After the two witnesses are examined by the learned Joint Registrar because the two are Court Witnesses both parties shall be given an opportunity to cross-examine the witnesses and with right to re-examine the witnesses, if necessary.
18. Thereafter, the file of the appeal shall be listed before the Court.