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Kalu Ram Vs. Ghisalal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 41 of 1963
Judge
Reported inAIR1971Raj244; 1970(3)WLN654
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 27(1)
AppellantKalu Ram
RespondentGhisalal
Appellant Advocate Hastimal, Adv.
Respondent Advocate R.K. Rastogi, Adv.
DispositionAppeal allowed
Cases ReferredSunder Lal & Son v. Bharat Handicrafts Pvt. Ltd.
Excerpt:
civil procedure code - order 41 rule 27--additional evidence cannot be allowed to patch up omissions--party not availing an opportunity cannot be allowed to lead additional evidence.;it is clear that additional evidence in appeal can only be allowed to be produced under two conditions (a) where the lower court has refused to admit evidence which ought to have been admitted and (b) where the appellate court requires it to be produced to enable it to pronounce judgment or for any other substantial cause. but the provision of order 41 rule 27 is not intended to allow a party to patch up the weak parts of his case and fill up omissions in the court of appeal. further, the power so conferred upon the court is to be very sparingly, exercised.;he took care to examine attesting witnesses for each..........any legal necessity. a number of issues were framed and issue no, 1 is as follows:'were the mortgage-deeds marked as ex. 1, ex. 2, ex. 3 and ex. 4 executed by, kalooram defendant'?both parties gave evidence in regard to the issues and the learned senior civil judge on a consideration of the evidence came to the conclusion that the said mortgages were executed by kalooram defendant. the other issues were also decided in favour of the plaintiff as a result of which the decree as stated above was passed in his favour.3. in this appeal it was contended on behalf of the appellant that the lower court was in error in holding that execution of the mortgage-deeds has been proved. it is contended that though it might have been proved by the plaintiff and the scribe of the documents that.....
Judgment:

C.B. Bhargava, J.

1. This is an appeal from the judgment and decree dated 4th February, 1963, of the Senior Civil Judge, Sikar.

2. A preliminary decree for sale of the mortgaged property in terms of Order 34 Rule 4, Civil P. C. has been passed in favour of the plaintiff respondent. The suit is for enforcement of four mortgages dated 2nd December 1947, 16th April 1948, 27th May, 1950 and 19th July. 1951, alleged to have been executed by defendant No. 1 in favour of the plaintiff. All the deeds are duly registered. According to the plaintiff who is the son of Kedar-mal, the original mortgagee, a sum of Rs. 15571/14/- is due against the defendants on the said mortgages. Defendant No. 2 has been impleaded because he Is the son of defendant No. 1 and is a member of the joint Hindu family with his father. The suit was contested by both the defendants. Defendant No. 1 denied the execution of the mortgages as also the receipt of any consideration. It was stated that in gambling transactions with the plaintiff he had to pay about Rupees 15000/- to him and he pledged about 70 Tolas of gold ornaments and when he asked him to render accounts and return the gold ornaments, he falsely instituted the present suit against him. Objection regarding the non-joinder of necessary parties and misjoinder of defendant No. 2 were also taken. Defendant No. 2 raised similar pleas and further added that even if the mortgages were found proved to have been executed by his father, he was not liable because the said mortgages were without any legal necessity. A number of issues were framed and issue No, 1 is as follows:

'Were the mortgage-deeds marked as Ex. 1, Ex. 2, Ex. 3 and Ex. 4 executed by, Kalooram defendant'?

Both parties gave evidence in regard to the issues and the learned Senior Civil Judge on a consideration of the evidence came to the conclusion that the said mortgages were executed by Kalooram defendant. The other issues were also decided in favour of the plaintiff as a result of which the decree as stated above was passed in his favour.

3. In this appeal it was contended on behalf of the appellant that the lower court was in error in holding that execution of the mortgage-deeds has been proved. It is contended that though it might have been proved by the plaintiff and the scribe of the documents that the documents were signed by defendant No. 1, but due attestation by two witnesses of such execution has not been proved in the case. On this point both parties were heard at great length and eventually learned counsel for the respondent conceded that though plaintiff examined the attesting witnesses of the document in the case, but none of them gave evidence that defendant No. 1 had signed the mortgage-deeds in their presence or they had received his personal acknowledgment of having signed the document. It was urged that evidence about due attestation of the documents was not led because all the deeds produced in the case are registered and there was no specific denial of execution of the mortgage-deeds by the defendants. Learned counsel thereafter on 24th July, 1970. made an application under Order 41, Rule 27, C. P. C. to allow him to Hive fresh evidence as regards the attestation of the mortgage-deeds. Another application was moved on 4th August, 1970, that in case plaintiff is not allowed to give additional evidence, he may be permitted to withdraw the suit with the permission to file a fresh suit because there was a technical defect on which the suit is likely to fail.

4. Arguments were heard on both these applications. It is clear that additional evidence in appeal can only be allowed to be produced under two conditions (a) where the lower Court has refused to admit evidence which ought to have been admitted and (b) where the appellate Court requires it to be produced to enable it to pronounce judgment or for any other substantial cause. But the provision of Order 41, Rule 27 is not intended to allow a party to patch UP the weak parts of his case and fill up omissions in the Court of appeal. Further, the power so conferred upon the Court is to be very sparingly exercised. See Parsotim v. Lal Mohar, AIR 1931 PC 143.

5. In Arjan Singh v. Kartar Singh. AIR 1951 SC 193, the principles laid down by the Privy Council in the above case were approved and it was held that :

'The discretion given to the appellate Court by Order 41, 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 and the case decided as if it is non-existent.'

6. In the present case, Clause (a) of Order 41, Rule 27 (1), is not applicable. Reliance is however placed on Clause (b), and it is contended that there is a substantial cause for allowing the plaintiff to produce additional evidence because he was misled in not giving evidence of due attestation as there was no specific denial by the defendant in his pleadings. Attention is invited to the provisions of Order VI, Rule 8 and 9. VIII, Rule 2, Civil P. C. However, in the present case, the defendants in their written statements not only generally denied the execution of the mortgage-deeds but in paragraph 16 specifically stated that the mortgage-deeds dated 2nd December, 1947. 16th April 1948. 27th May, 1950 and 19th July, 1951 had neither been executed nor got completed by defendant No. 1 nor did the defendants hand over possession of the property to the plaintiff. Not only this but during the examination of the plaintiff's witnesses whose signatures appear as attesting witnesses to the documents, specific questions were put in cross-examination whether defendant No. 1 had put his signatures on the documents in their presence and they denied that the executant had put his signatures on the documents in their presence. In such circumstances it cannot be reasonably contended that there was no specific denial of the mortgage-deeds by the defendant which misled the plaintiff in not leading evidence about due attestation.

7. In Surendra Bahadur v. Behari Singh, AIR 1939 PC 117, the plea of the defendant in the written statement was:

'The contesting defendant does not admit the execution and completion of the document sued on, nor is receipt of any consideration of the same admitted.'

There also an argument was raised that there was no specific denial of the execution of the mortgage-deed, but their Lordships held that on the above plea taken in the written statement and the fact that at the trial the pleader who appeared for the party had hotly contended that the execution and due attestation of the mortgage bond in suit was not proved, it was clear that the execution of the mortgage-deed was specifically denied. Here also, as stated earlier, the cross-examination directed against the plaintiff's witnesses was to elicit information whether there was due attestation of the documents.

8. Section 68 of the Indian Evidence Act reads as follows :

'68. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence :

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.'

In case the plaintiff had thought that his case was covered by the proviso to Section 68, he would not have examined any attesting witness of the mortgage-deeds. But, he took care to examine attesting witnesses for each document and unluckily for him their evidence fell short of the proof of due attestation required under the Transfer of Property Act, because they admitted that the executant had not signed the deeds in their presence nor had they received from the executants a personal acknowledgment of his signature. I have not discussed the evidence of the witnesses to the documents because it was conceded at the bar that the statements of the witnesses are not to that effect. Under the circumstances, therefore, it will have to be held that there was a specific denial of the execution of the mortgage-deeds by the defendants and there was no ground for the plaintiff to have been misled on that score.

9. The next question is whether there is any requirement of the Court under Clause (b) of Order 41, Rule 27 (1) to take additional evidence. In a case like the present where the party had full opportunity to adduce evidence which was available to him and in fact did produce evidence, the Court would not invoke the above provisions to patch up the weakness of his case. The Court does not require any further evidence to be taken for pronouncing judgment in the case. There is also no other substantial cause due to which the Court may feel justified in taking additional evidence.

10. Learned counsel for the respondent placed much reliance on Vankataramiah v. Seetharama Reddy, AIR 1963 SC 1526. But that case too simply reiterates what has been laid down in the earlier decisions of that Court. Theobservations made in the case cannot be construed to enlarge the scope of Order 41, Rule 27. In that case it was observed that :

'Under Rule 27 (1), 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 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 Rule 27 (1) (b) of the Code.

Such requirement of the Court is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence 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.'

So it is clear that it must be the requirement of the Court and if the Court so considers such evidence can be produced not only to enable it to pronounce judgment but also for any other substantial cause, and fill up obscurities.

11. In the present case, I have not felt persuaded that there is any substantial cause requiring the Court to clear any obscurity in the case. In a recent case in Sunder Lal & Son v. Bharat Handicrafts Pvt. Ltd., AIR 1968 SC 406, where a document which was sought to be produced as additional evidence was in the possession of the party but he did not rely upon it in the High Court and it was urged that the importance of the document was not realised by those in charge of the case before the High Court, the Supreme Court held that there was no substantial cause with in the meaning of Order 41, Rule 27 of the Code of Civil Procedure, and additional evidence was not allowed to be brought on the record.

12. For the foregoing reasons 1 do not find any sufficient ground for allowing the plaintiff to give additional evidence in the case. The application is, therefore, rejected.

13. Then comes the question of allowing the plaintiff to withdraw the suit with permission to bring a fresh suit Mr. Rastogi at this stage has urged that the plaintiff may only be allowed to with-draw his suit. It is not Insisted thatpermission to withdraw, the suit be given with liberty to bring a fresh suit. I do not see any objection in permitting the plaintiff to withdraw the suit. The plaintiff can at any time after the institution of the suit withdraw it as against all or any of the defendants.

14. The appeal is, therefore, accepted, the judgment and decree of the lower Court is set aside and the plaintiff is permitted to withdraw the suit as against both the defendants, but in the circumstances of the case when the lower Court has found and rightly so that defendant No. 1 did execute all the mortgage-deeds by putting his signatures upon them and the plaintiff is compelled to withdraw the suit, because the so-called attesting witnesses have not deposed that defendant No. 1 had put his signatures upon the deeds in their presence, or they had received personal acknowledgments thereon from him the parties shall bear their own costs throughout. I desire to impress upon those who are called upon to prove the mortgage-deeds to bear in mind the definition of 'attested' as stated in Section 3, Transfer of Property Act and provision of Section 68 of the Evidence Act. Provisions of both these sections should be strictly observed unless the case squarely comes within the proviso to Section 68.


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