Skip to content


Suresh Kumar Vs. Sunita Kumari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberC.M.P. No. 135 of 1980 in F.A.O. No. 14 of 1980
Judge
Reported inAIR1981HP32
ActsCode of Civil Procedure (CPC) , 1908 - Section 151 - Order 41, Rule 27
AppellantSuresh Kumar
RespondentSunita Kumari
Appellant Advocate P.N. Nag, Adv.
Respondent Advocate Inder Singh, Adv.
DispositionApplication dismissed
Excerpt:
- .....in the ap-plication that due to his inadvertence the respondent and the petitioner could not be medically examined and as such the medical evidence so vital for determining the point in controversy, is not adduced. it is also stated that in case the respondent and the petitioner are medically examined, it would be clear that the respondent was pregnant at the time of marriage and that the petitioner-appellant has not indulged in sexual intercourse up-till now. the application is supported by an affidavit. . in reply to the application, the respondent, inter alia, has stated that the appellant under the garb of the present application cannot be permitted to fill in tha gap and lacuna in the case. it is further submitted that in case the application is allowed, it will amount to the.....
Judgment:
ORDER

H.S. Thakur, J.

1. The appellant-petitioner has filed this application under Section 151 read with Order 41, Rule 27 of the Code of Civil Procedure praying that he may be permitted to produce additional evidence in the case. It is stated in the ap-plication that due to his inadvertence the respondent and the petitioner could not be medically examined and as such the medical evidence so vital for determining the point in controversy, is not adduced. It is also stated that in case the respondent and the petitioner are medically examined, it would be clear that the respondent was pregnant at the time of marriage and that the petitioner-appellant has not indulged in sexual intercourse up-till now. The application is supported by an affidavit. .

In reply to the application, the respondent, inter alia, has stated that the appellant under the garb of the present application cannot be permitted to fill in tha gap and lacuna in the case. It is further submitted that in case the application is allowed, it will amount to the abuse of the process of law and would cause great harassment to the respondent. At the same time, it is contended that the application is not maintainable since no ground has been made to invoke the provisions of Order 41, Rule 27 of the Code of Civil Procedure. It is also submitted that the application is belated. The respondent has also repudiated the allegations of the petitioner-appellant on facts. It has been specifically pointed out by the respondent that at no point of time she had refused from being medically examined and that the plea of inadvertence is totally incorrect, dishonest and an afterthought and that in case the appellant genuinely desired to get the respondent medically examined, he would have approached the trial court for the purpose.

The allegations made in the application by the petitioner are stated to be malici-(sic) and scandalous by the respondent. the reply filed by the respondent is also supported by an affidavit

2. The appellant-petitioner filed a petition under Section 13 of the Hindu Marriage Act for dissolution of marriage by a decree oi divorce and in the alternative for annulment of marriage under Section 12 of the Act, during the month of July, 1977. Evidence was produced by both the parties in support of their respective contentions. The learned District Judge, Kangra Division at Dharam-sala, dismissed the petition on 29th December, 1979. The petitioner appellant had not filed any application to have the parties medically examined, as is requested now. The question that arises for determination in this petition is whether the appellant-petitioner can invoke the provisions of Order 41, Rule 27 o the Code of Civil Procedure. The appeal was filed in this Court by the end of February 1981) and along with the appeal this application was also filed, The provisions contained in Order 41, Rule 27 may be reproduced for a ready reference:--

'27. (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 examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the court shall record the reason for its admission.'

It is conceded by the learned counsel for the petitioner that the case of the petitioner does not fall either under Clause (a) or (aa) of Sub-rule (1) of Rule 27. It is, however, contended that the application can be allowed under Clause (b) of Sub-rule (1) of Rule 27 (Order 41) on the ground of 'or for any other substantial cause'. It is the general principle that an Appellate Court would not travel out-side the record of the lower court and would not also be inclined to allow additional evidence. At the same time, no doubt, an Appellate Court has the discretion to allow the production of additional evidence but that discretion is circumscribed by the limitation specified in the rule reproduced above. It is presumed that the words 'for any other substantial cause' is to be read with the word 'requires' in the beginning of the sentence, and it is only 'whether for any other substantial cause the Appellate Court requires additional evidence'.

Additional evidence cannot be allowed to be produced solely for shaking the credit of a witness. At the same time, the provisions of the rule are not intended to allow a litigant who has been unsuc-cessful in the lower court to patch up the weak parts of his case and to fill up the omission in the Court of Appeal. Similarly, the mere fact that certain evidence is important, is not itself a sufficient ground for admitting that evidence in appeal. It appears that due to the observations made by the trial court that the petitioner did not take any step to get the respondent medically examined, he has filed this application. He has not given satisfactory reasons for the non-production of such an evidence in the trial court. Bearing the aforesaid principles in mind, I am of the view that there is no legal ground to allow this application.

It may be pointed out that a period of more than three years has elapsed since the respondent, according to the appellant, had delivered a dead child. If the parties are to be medically examined now, for the purpose stated by the appellant, it is not certain as to what would be the value of the opinion that may be expressed by the medical expert. At the same time, at the most, that would be an opinion. The appellant besides others, has also examined certain eye-witnessea in support of his allegation. Of course, the entire evidence on record shall be appraised and considered by the appellate court, at the time of hearing the appeal.

3. For the foregoing reasons, the application is dismissed. The parties are, however, left to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //