w w w . L a w y e r S e r v i c e s . i n



Dr. Chandra Deo Tyagi v/s Additional District Judge Court No.1 Meerut & Others


Company & Directors' Information:- R K CHANDRA PVT LTD [Strike Off] CIN = U36911WB1989PTC046753

Company & Directors' Information:- H CHANDRA PRIVATE LIMITED [Strike Off] CIN = U65990MH1952PTC008894

Company & Directors' Information:- H C CHANDRA & CO. PVT LTD [Strike Off] CIN = U20231WB1957PTC023337

Company & Directors' Information:- CHANDRA AND COMPANY PRIVATE LIMITED [Dissolved] CIN = U74999KL1952PTC000280

Company & Directors' Information:- R. CHANDRA LIMITED [Not available for efiling] CIN = U99999MH1953PLC009175

    Writ - C No. 34529 of 2006

    Decided On, 10 July 2020

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE RAVI NATH TILHARI

    For the Petitioner: Nipun Saini, Advocate. For the Respondent: A.K. Mehrotra, Advocate, M.D.S. Shekhar, S.C.



Judgment Text


1. Heard Shri Rahul Dev Garg, Advocate holding brief of Shri Nipun Saini, learned counsel for the petitioner. The respondent no. 1, is Additional District Judge, Court No. 1, Meerut whose order is under challenge in the petition. No one responded for the respondent nos. 2 to 4, even in the revised list.

2. The matter being old one and as it pertained to the year 2006, the court proceeded to hear the matter on merits, on the basis of material on record and after hearing the learned counsel for the petitioner, the judgment was reserved.

3. By means of this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 29.03.2006 passed by the learned Additional District Judge, Meerut in Misc. Appeal No. 98 of 2004 (Chandra Deo Tyagi versus Surya Deo Tyagi and another) passed on the petitioner's application for admission of additional evidence under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure (in short C.P.C.), whereby the petitioner's said application (14A/1) was rejected. The petitioner has also prayed that a direction may be issued to respondent no. 1 i.e. the Additional District Judge, Court No. 1, Meerut to allow the petitioner's application under Order 41 Rule 27 C.P.C.

4. The facts of the case are that the petitioner is a plaintiff who has instituted the original Suit No. 11 of 2001 (Chandra Deo Tyagi versus Surya Deo Tyagi and another) in the Court of Civil Judge (Junior Division) Sardhana, Meerut, for a decree of declaration that the petitioner is the owner in possession of a tube well/boring, situated over part of Gata No. 333 District-Meerut. The mandatory injunction is also requested to direct the respondent nos. 3 and 4 i.e. the U.P. Power Corporation through its Chairman Vikramaditya Marg and the Executive Engineer Electricity Distribution Division-II, Meerut, to disconnect the electricity connection of the tube well, which was granted in favour of respondent no. 2 Surya Deo Tyagi. The petitioner has also prayed for prohibitory injunction to restrain the respondent no. 2 from interfering in the usage of tube well by the petitioner. In the suit, the petitioner also filed an application for grant of temporary injunction under Order 39 Rules 1 & 2 C.PC.

5. The learned Civil Judge (Junior Division), Shardhana, Meerut rejected the application for temporary injunction by order dated 27.05.2004. The petitioner filed Misc. Appeal No. 98 of 2004 before the learned District Judge, Meerut, under Order 43 Rule 1 C.P.C. In the said appeal, the petitioner filed an application for admission of additional evidence, as per the list of documents (Annexure no. 3 to the petition) under Order 41 Rule 27 C.P.C. The petitioner's said application was allowed on payment of cost and the respondent no. 2 was granted time to file rebuttal, by order dated 21.02.2005. Against the order dated 21.02.2005, an application for recall was filed by the respondent no. 2 which was rejected on 08.09.2005 and further one month's time was granted to file rebuttal which time was further extended on 10.10.2005 and 07.11.2005 in favour of respondent no. 2.

6. The respondent no. 2, thereafter, filed Writ Petition No. 66932 of 2005 (Surya Deo Tyagi versus Chandra Deo Tyagi and others) before this Court challenging the order dated 21.02.2005. The writ petition was allowed by means of judgment and order dated 09.11.2005. The order dated 21.02.2005 passed by the appellate court was quashed and the matter was remanded, with a direction to the appellate court to decide the petitioner's application under Order 41 Rule 27 C.P.C., after affording opportunity of hearing to the present respondent no. 2, expeditiously, and preferably within a period of six weeks from the date of production of copy of judgment before the appellate court.

7. After remand the appellate court rejected the petitioner's application under Order 41 Rule 27 C.P.C. after hearing both the parties, by order dated 29.03.2006, which is impugned in the present petition.

8. The appellate court has taken the view that, as the parties are at liberty to file documents before the trial court and establish their case in trial, where the dispute is yet to be adjudicated, and as the Misc. Appeal should be confined to the impugned order, in the light of the evidence already available on record, the petitioner's application for admission of additional evidence was liable to be rejected.

9. The appellate court has further taken the view that the Misc. Appeal has been filed against the order, whereby the temporary injunction matter was rejected, and, therefore, the present being a Misc. Appeal under Order 43 Rule 1 C.P.C. the application for admission of additional evidence under Order 41 Rule 27 C.P.C. was not maintainable.

10. The appellate court has further taken the view that the documents proposed to be filed in additional evidence, are not the public documents, except, the certified copies of the statements of Surya Deo Tyagi, Chandra Deo Tyagi and their sister Shashi Prabha. All other documents are private in nature and cannot be read unless those documents are proved.

11. The appellate court has further held that as per the petitioner' case, the issues/dispute between plaintiff/petitioner and defendant/respondent no. 2 were identified by late Shri Ramesh Chandra Verma, the person agreed by the said parties to mediate between them on 03.06.1998; and a memorandum dated 27.08.1998 was prepared by Smt. Shashi Prabha, but the written memorandum, nowhere revealed that the dispute between the parties in respect of Khasra No. 333, in which the disputed boring existed, was set at rest between the parties. Similarly, copies of the statements proposed to be filed did not disclose that the parties had also compromised in respect of the suit property.

12. Sri Raghav Dev Garg, learned counsel holding brief of Shri Nipun Saini, learned counsel for the petitioner, submitted that an application under Order 41 Rule 27 C.P.C. is maintainable in Misc. Appeal, as well, in view of Order 43 Rule 2 C.P.C., which provides that the rules of Order 41 C.P.C. apply to appeals from order as well, so far as may be.

13. Learned counsel has next submitted that at the stage of deciding the application for admission of additional evidence the appellate court travelled beyond its jurisdiction in considering the proposed documents (written memorandum dated 27.08.1998 and the statements), on merits. He has further submitted that an application for additional evidence is required to be decided along with the appeal, but, in the present case, the application has been decided first, whereas the appeal remained pending.

14. Learned counsel for the petitioner has placed reliance on the judgments of the Hon'ble Supreme Court in the case of State of Rajasthan versus T.N Shekri and another reported in (2001) 10 SCC 619 and in the case of Union of India versus Ibrahim Uddin and another, reported in (2012) 8 SCC 148. Learned counsel has further placed reliance on judgment of this Court in the case of (Smt. Malti Devi and another versus State of U.P.) Matters under Article 227 No. 4312 of 2018 decided on 09.10.2018, in support of his another contention that, even if, Order 41 Rule 27 C.P.C. strictly speaking, does not apply to the proceedings of Misc. Appeal, still the court has power and jurisdiction to admit additional evidence/documents/materials in Misc. Appeal in the interest of justice.

15. I have perused the counter affidavit filed by the respondent no. 2. The facts as stated by the learned counsel for the petitioner and mentioned in the petition have not been disputed. It has been stated, in the counter affidavit, that so far as the facts are concerned, the same being material on record, only needs verification from the records. From, verification of the records, the court finds that there is no dispute about the facts of the case, so far as they are relevant for deciding the present controversy, as regards the rejection of the petitioner's application for admission of the additional evidence by the appellate court by the order under challenge.

16. With respect to the arguments of the learned counsel for the petitioner as mentioned in the petition, the contention of the respondent no. 2, in the counter affidavit, is, that the same being argumentative would be replied at the time of hearing, but at this stage no one responded for the respondents to argue the matter, even in the revised call.

17. I have considered the submissions advanced by learned counsel for the petitioner and have perused the material on record.

18. In view of the above submissions, the following points arise for consideration & determination in the present petition:

i) the applicability of the provisions of Order 41 Rule 27 C.P.C. for admission of additional evidence/material in Misc. Appeals filed under Section 104 read with Order 43 Rule 1(r) C.P.C. and

ii) if the appellate court has correctly applied the law under Order 41 Rule 27 C.P.C. in rejecting the petitioner's application for admission of additional evidence.

19. Point No. 1. Applicability of the provisions of Order 41 Rule 27 C.P.C. to Misc. Appeals under Order 43 Rule 1 C.P.C.

20. It is appropriate to reproduce Sections 107, 108, 2(16), (18) and Order 43 Rule 1 (r), 2 of C.P.C. as under:

"Section 107. Powers of appellate Court-(1) Subject to such conditions and limitations as may be prescribed, an appellate Court shall have power-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."

"Section108. Procedure in appeals from appellate decrees and orders .-The provisions of this Part relating to appeals from original decrees shall, so far as may be, apply to appeals-

(a) from appellate decrees, and

(b) from orders made under this Code or under any special or local law in which a different procedure is not provided."

"Section 2(16) "prescribed" means prescribed by rules;"

"Section 2(18) "rules" means rules and forms contained in the First Schedule or made under section 122 or section 125;"

"Order 43 Rule 1(r) an order under rule 1, rule 2 [rule 2A], rule 4 or rule 10 of Order XXXIX;

"Order 43 Rule 2. Procedure. - The rules of Order XLI shall apply, so far as may be, to appeals from orders."

21. Section 104 C.P.C. provides for filing appeal against the orders of the nature as mentioned under clauses (ff), (ffa), (g), (h), (i) as well as under Order 43 Rule 1 Clause (a) to (w). An appeal against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 is provided by clause (r) of Order 43 Rule 1 C.P.C.

22. Section 107 C.P.C. provides that subject to such conditions and limitations as may be prescribed, an appellate court shall have power, (a) to determine a case finally; (b) to remand a case (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. Further, subject to the above, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code of Civil Procedure on courts of original jurisdiction in respect of suits instituted before those courts.

23. As such, Section 107(1) (d) C.P.C. specifically provides that the appellate court shall have power to take additional evidence or to require such evidence to be taken. The power, is, however, subject to such conditions and limitations as may be prescribed.

24. Section 2(16) C.P.C., the definition clause, provides that in this Act, unless there is anything repugnant in the subject or context ''Prescribed' means, prescribed by rules, and ''Rules' have been defined under Clause (18) of Section 2, which means rules and forms contained in the first schedule or made under Section 122 or Section 125. The first schedule contains the orders and the rules thereunder. Order 41 C.P.C. lays down the procedure with respect to appeals from original decrees. Its Rule 27, provides for production of additional evidence in appellate court, and according to this rule, the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the appellate court; but if the condition as provided by Clause (a), (aa), (b), (c) of Sub rule (1) are satisfied the appellate court may allow such evidence or document to be produced or witness to be examined. Where additional evidence is allowed to be produced, the appellate court shall have to record the reasons for its admission.

25. Section 108 C.P.C. provides for the procedure to be followed in appeals from appellate decrees or orders. As per this Section, the provisions of Part VII relating to appeals from original decrees shall, so far as may be, apply to appeals (a) from appellate decrees; and (b) from order made under the Code or under any special or local law, in which, a different procedure is not provided. Section 107 C.P.C. which provides for the powers of the appellate court falls in part VII.

26. Order 43 Rule 2 C.P.C. also provides that the rules of Order 41 shall apply, so far as may be, to appeals from orders.

27. The Allahabad High Court amendment, inserts "and Order 41-A" in Rule 2 of Order 41 between the words "the rules of order 41" and "shall apply". Order 41-A, inserted by the High Court Amendment, applies to appeals from original decrees in the High Court. The same shall apply to Appeals from Orders filed in the High Court. The present case relates to the appeal before the appellate court, below, and not before the High Court, and as such, Order 41 A is not relevant for the present controversy.

28. From a conjoint and bare reading of Section 108 & Order 43 Rule 2 C.P.C. it is clear that Order 41 shall apply to the appeals before the appellate court arising from orders under Section 104 read with Order 43 Rule 1 C.P.C. or from orders made under any special or local law in which a different procedure is not provided. Here, the court is concerned with appeal from order made under C.P.C. Order 41 shall apply to appeals from orders but ''so far as may be,' the expression used in Section 108 & Order 43 Rule 2 C.P.C. This expression ''so far as may be' is, therefore, considered to be of utmost importance.

29. In the case of Dr. Pratap Singh versus Director of Enforcement, Foreign Exchange and Regulation Act (1985) 3 SCC 72, the expression "so far as may be" came for consideration in the context of searches made under Section 37(2) of the Foreign Exchange Regulation Act, 1973. which provided, that the provision of the Code of Criminal Procedure relating to searches, shall, so far as may be, apply to searches directed under Section 37(1) of the Act, 1973. The Hon'ble Supreme Court held that the expression "so far as may be" has always been construed to mean that those provisions may be generally followed to the extent possible. In order to give full meaning, the expression so far as may be, in sub Section (2) of Section 37 of the Act, 1973, was interpreted to mean that broadly the procedure relating to search as enacted in Section 165 Cr.P.C. shall be followed. But, if a deviation becomes necessary to carry out the purpose of the Act in which Section 37(1) is incorporated, it would be permissible except that when challenged before a court of law, justification will have to be offered for the deviation.

30. Paragraph 12 of the judgment in Pratap Singh case (supra) is being reproduced as under:

"12. Section 37(2) provides that 'the provisions of the Code relating to searches, shall so far as may be, apply to searches directed under Section 37(1). Reading the two sections together it merely means that the methodology prescribed for carrying out the search provided in Section 165 has to be generally followed.

The expression 'so far as may be' has always been construed to mean that those provisions may be generally followed to the extent possible.

The submission that Section 165(1) has been incorporated by pen and ink in Section 37(2) has to be negatived in view of the positive language employed in the section that the provisions relating to searches shall so far as may be apply to searches under Section 37(1). If Section 165(1) was to be incorporated by pen and ink as Sub-section (2) of Section 37, the legislative draftsmanship will leave no room for doubt by providing that the provisions of the CrPC relating to searches shall apply to the searches directed or ordered under Section 37(1) except that the power will be exercised by the Director of Enforcement or other officer exercising his power and he will be substituted in place of the Magistrate. The provisions of Sub-section (2) of Section 37 has not been cast in any such language. It merely provides that the search may be carried out according to the method prescribed in Section 165(1). If the duty to record reasons which furnish grounds for entertaining a reasonable belief were to be recorded in advance, the same could have been incorporated in Section 37(1), otherwise a simple one line section would have been sufficient that all searches as required for the purpose of this Act shall be carried out in the manner prescribed in Section 165 of the Code by the officer to be set out in the section. In order to give full meaning to the expression 'so far as may be', Sub-section (2) of Section 37 should be interpreted to mean that broadly the procedure relating to search as enacted in Section 165 shall be followed. But if a deviation becomes necessary to carry out the purposes of the Act in which Section 37(1) is incorporated, it would be permissible except that when challenged before a court of law, justification will have to be offered for the deviation. This view will give full play to the expression 'so far as may be'."

31. In the case of Ismail Faruqui versus Union of India (1994) 6 SCC 360, the expression ''so far as may be', used in Section6(3) of the "Acquisition of Certain Area at Ayodhya Act, 1993," by which it was provided that the provisions of Sections 4, 5, 7 and 11 shall, so far as may be, apply in relation to such authority or body or trustees, as they apply in relation to the Central Government, was interpreted by the Hon'ble Supreme Court as indicative of the fact that all or any of these provisions may or may not be applicable to the transferee under sub-section (1).

32. It is relevant to quote paragraph 56 of Ismail Faraqui case (supra) as under:

"56. We would now examine the validity of Section 6. Sub-section (1) of Section 6 empowers the Central Government to direct vesting of the area acquired or any part thereof in another authority or body or trust. This power extends to the entire acquired area or any part thereof. This is notwithstanding anything contained in Sections 3, 4, 5 and 7. Section 3 provides for acquisition of the area and its vesting in the Central Government. It is, therefore, made clear by sub-section (1) of Section 6 that the acquisition of the area and its vesting in the Central Government is not a hindrance to the same being vested thereafter by the Central Government in another authority or body or trust. Section 4 relates to the effect of vesting and Section 5 to the power of the Central Government to secure possession of the area vested, with the corresponding obligation of the person or the State Government in possession thereof to deliver it to the Central Government or the authorised person. Section 4(3) relating to abatement of pending suits and legal proceedings would be considered separately. Section 7 which we have already upheld, relates to management and administration of the property by the Central Government or the authorised person during the interregnum till the exercise of power by the Central Government under Section 6(1). Section 7 has been construed by us as a transitory provision to maintain status quo in the disputed area and for proper management of the entire property acquired during the interregnum. Thus, sub-section (1) of Section 6 read with sub-section (2) of Section 7 is an inbuilt indication in the statute of the intent that acquisition of the disputed area and its vesting in the Central Government is not absolute but for the purpose of its subsequent transfer to the person found entitled to it as a result of adjudication of the dispute for the resolution of which this step was taken, and enactment of the statute is part of that exercise. Making of the Reference under Article 143(1) simultaneously with the issuance of Ordinance, later replaced by the Act, on the same day also is an indication of the legislative intent that the acquisition of the disputed area was not meant to be absolute but limited to holding it as a statutory receiver till resolution of the dispute; and then to transfer it, in accordance with, and in terms of the final determination made in the mechanism adopted for resolution of the dispute. Sub-section (2) of Section (6) indicates consequence of the action taken under sub-section (1) by providing that as a result of the action taken under sub-section (1), any right, title and interest in relation to the area or part thereof would be deemed to have become those of the transferee. Sub-section (3) of Section 6 enacts that the provisions of Sections 4, 5, 7 and 11 shall, so far as may be, apply in relation to such authority or body or trustees as they apply in relation to the Central Government. The expression "so far as may be" is indicative of the fact that all or any of these provisions may or may not be applicable to the transferee under sub-section (1). This provides for the situation of transfer being made, if necessary, at any stage and of any part of the property, since Section 7(2) is applicable only to the disputed area. The provision however does not countenance the dispute remaining unresolved or the situation continuing perpetually. The embargo on transfer till adjudication, and in terms thereof, to be read in Section 6(1), relates only to the disputed area, while transfer of any part of the excess area, retention of which till adjudication of the dispute relating to the disputed area may not be necessary, is not inhibited till then, since the acquisition of the excess area is absolute subject to the duty to restore it to the owner if its retention is found, to be unnecessary, as indicated. The meaning of the word ''vest' in Sections 3 and 6 has to be so construed differently in relation to the disputed area and the excess area in its vicinity."

33. In the case of Maktool Singh versus State of Punjab (1999) 3 SCC 321, Section 36-B of the Narcotic Drugs and Pyschotropic Substances Act, 1985, provided that the High Court may exercise so far as may be applicable all the powers conferred by Chapters 29 and 30 of the Code of Criminal Procedure, 1973, on a High Court as if a Special Court within the local limits of the jurisdiction of the High Court were a Court of Session trying cases within the local limits of the jurisdiction of the High Court. Thus, the provisions of Chapters 29 and 30 of Cr.P.C. were made applicable to the Act, 1985, ''so far as may be' The Hon'ble Supreme Court held that Section 36-B clearly indicated that its applicability was subject to the extent of adaptability because of the words employed there in "so far as may be applicable." This means, the High Court can exercise powers under Chapter 29 of the Code, only to the extent such powers are applicable. In other words, if there is an interdict against applicability of any provision, the High Court cannot use such powers albeit, its inclusion in Chapter 29 of the Code and that is the effect of employment of the words "so far as may be applicable," where a statute incorporates the provisions of another statute.

34. Paragraph 6 of the judgment in the case of Maktool Singh (supra) is being reproduced as under:

"The argument advanced before us is that when Section 36-B of the Act preserved the powers of the High Court under Chapter XXIX of the Code while dealing with an appeal challenging conviction under the Act, it must be deemed to have preserved all the powers mentioned in Section 389 of the Code including the power to suspend the sentence. But we canot give accord to that argument on the following grounds. When Section 36-B of the Act is juxtaposed with Section 32-A, the latter must dominate over the former mainly for two reasons. First is that Section 32-A overrides all the provisions of the Code, by specific terms, through the non obstante limb incorporated therein. Second is that Section 36-B has clearly indicated that its applicability is subject to the extent of adaptability because of the words employed therein "so far as may be applicable". This means, the High Court can exercise powers under Chapter XXIX of the Code only to the extent such powers are applicable. In other words, if there is an interdict against applicability of any provision, the High Court cannot use such provision, albeit its inclusion in Chapter XXIX of the Code. That is the effect of employment of the words "so far as may be applicable" when a statute incorporates the provision of another statute."

35. In the case of Regional Provident Fund Commissioner vs. Hooghly Mills Co. Ltd & Others reported in (2012) 2 SCC 489 the expression "so far as may be" used in Section 17(1-A) (a) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952" came up for consideration. The High Court, in this case, had taken the view that Sections 6, 7A, 8 & 14-B of the Act could not be applied in their entirety, for the use of the expression "so far as may be" in Section 17(1A)(a) of the Act 1952. The Hon'ble Supreme Court did not accept the interpretation of the High Court, and held that an interpretation of the statute which harmonizes with its avowed object is always to be accepted than the one which dilutes it. The Act 1952, was a social welfare legislation to ensure health and other benefits to the employees; and the employer under the Act was under an obligation to make the deposit. Therefore, for construing Section 14 B & 17(1A)(a), a purposive approach, which promoted the purposes of the Act was adopted. The Hon'ble Supreme Court held that the parameters of interpretation cannot be the same for interpreting a fiscal statute; special statute, and a social welfare legislation.

36. It is relevant to reproduce paragraph nos. 49, 50, 51, 54, 55, 56 of the Hooghly Mills Case (supra) as under:

"49. Apart from that the High Court's interpretation of the expression "so far as may be" as limiting the ambit and width of Section 17(1A)(a) of the Act, in our judgment, cannot be accepted for two reasons as well.

50. The High Court is guided in the interpretation of the word "so far as may be" on the basis of the principle that statutes does not waste words. The High Court has also relied on the interpretation given to "so far as may be" in the case of Dr. Pratap Singh and another v. Director of Enforcement, Foreign Exchange Regulation Act and others reported in AIR 1985 SC 989. It goes without saying that Foreign Exchange Regulation Act is a fiscal statute dealing with penal provisions whereas the aforesaid expression is to be construed in this Act which is eminently a social welfare legislation. Therefore, the parameters of interpretation cannot be the same.

Even then in Pratap Singh (supra) this Court while construing "so far as may be" held "if a deviation becomes necessary to carry out the purposes of the Act........................ it would be permissible". Of course the Court held that if such deviation is challenged before a Court of law it has to be justified.

51. In the instant case, the High Court failed to discern the correct principle of interpretation of a social welfare legislation. In this connection we may profitably refer to what was said by Chief Justice Chagla about interpretation of a social welfare or labour legislation in Prakash Cotton Mills (P) Ltd. v. State of Bombay reported in (1957) 2 LLJ 490. Justice Chagla unerringly laid down:

"no labour legislation, no social legislation, no economic legislation, can be considered by a court without applying the principles of social justice in interpreting the provisions of these laws. Social justice is an objective which is embodied and enshrined in our Constitution......it would indeed be startling for anyone to suggest that the court should shut its eyes to social justice and consider and interpret a law as if our country had not pledged itself to bringing about social justice."

54. Unfortunately, the High Court missed this well settled principle of interpretation of social welfare legislation while construing the expression "so far as may be" in interpreting the provision of Section 17 (1A)(a) of the Act and unduly restricted its application to the employer of an exempted establishment.

55. The interpretation of the expression "so far as may be" by this Court in its Constitution Bench decision in M. Ismail Faruqui (supra) was given in a totally different context. The said judgment on a Presidential Reference was rendered in the context of the well known Ram Janam Bhumi Babri Masjid controversy where a special Act, namely, Acquisition of Certain Area at Ayodhya Act was enacted and sub-

section (3) of Section 6 of the said Act provides that the provisions of Sections 4, 5 & 7 shall "so far as may be" apply in relation to such authority or body or trustees as they apply in relation to the Central Government. In that context this Court held that the expression "so far as may be" is indicative of the fact that all or any of these provisions may or may not be applicable to the transferee under sub-section (1). The objects behind the said enactment are totally unique and the same was a special law. Apart from this, this Court did not lay down any general principle of interpretation in the application of the expression "so far as may be". Their being vast conceptual difference in the legal questions in that case, the interpretation of "so far as may be" in M. Ismail Faruqui (supra) cannot be applied to the interpretation of "so fr as may be" in the present case.

56. The High Court's interpretation also was in error for not considering another well settled principle of interpretation. It is not uncommon to find legislature sometime using words by way of abundant caution. To find out whether the words are used by way of abundant caution the entire scheme of the Act is to be considered at the time of interpretation. In this connection we may remember the observation of Lord Reid in I.R. Commissioner v. Dowdall O'Mahoney & Co. reported in (1952) 1 All E.R. 531 at page 537, wherein the learned Law Lord said that it is not uncommon to find that legislature is inserting superfluous provisions under the influence of what may be abundant caution. The same principle has been accepted by this Court in many cases. The High Court by adopting, if we may say so, a rather strait jacket formula in the interpretation of the expression "so far as may be" has in our judgment, misinterpreted the intent and scope and the purpose of the Act."

37. Thus, the Court finds, that the expression ''so far as may be' is indicative of the fact that all or any of the provisions, which have been made applicable, may or may not be applicable. This expression has always been construed to mean that the provisions may be generally followed, to the extent possible. Even if, some deviation becomes necessary to carry out the purpose of the Act such deviation is permissible, for justified reasons. The power and/or the procedure, which has been made applicable by use of expression ''so far as may be' shall apply to the extent there is no interdict. This expression has to be given its meaning, considering the nature of the statute in which it exists as well as the nature of the statute to which such provision has been applied. The same parameters cannot be applied in giving interpretation to this expression. In case of Social Welfare Legislation, the applicability of the provisions, cannot be unduly restricted and in case of fiscal or penal statute it cannot be unduly extended.

38. In the present case, the expression ''so far as may be' as used in Section 108 & Order 43 Rule 2 of the Code of Civil Procedure is under consideration. As such, the purpose & object of the Code of Civil Procedure, requires consideration.

39. In the case of Sangram Singh versus Election Tribunal Kotah AIR 1955 SCC425, the Hon'ble Supreme Court, has held that the Code of Civil Procedure must be regarded as such. It is "procedure", something designed to facilitate justice and further its end. Not a penal indictment for punishment and penalties. Not a thing designed to trip people up. Too technical construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against, provided always that justice is done to both sides lest, the very means designed for furtherance of justice be used to frustrate it. It has also been held that our laws of procedure are grounded on a principle of natural justice. The relevant paragraph nos. 16 and 17 of the case of Sangram Singh (supra) are being reproduced as under:

"16. Now a code of procedure must be regarded as such. It is ''procedure', something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to ''both' sides) lest the very means designed for the furtherance of justice be used to frustrate it."

"17 Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle."

40. In Chinnammal and other versus Arumugham (1990) 1 SCC 513 the Hon'ble Supreme Court has held that the Code of Civil Procedure is body of procedural laws designed to facilitate justice and it should not be treated as enactment providing for punishment and penalties. The laws of procedure should be so construed as to render justice wherever reasonably possible. Paragraph nos. 16 and 17 of the aforesaid judgment are being reproduced as under:

"16.This is also the principle underlying Section 144 of the CPC. It is the duty of all the Courts as observed by the Privy Council "as aggregate of those tribunals" to take care that no act of the court in the course of the whole of the proceedings does an injury to the suitors in the Court. The above passage was quoted in the majority judgment of this Court in A.R. Amtulay v. R.S. Nayak and Ors., MANU/SC/0002/1988MANU/SC/0002/1988: 1988CriLJ1661 . Mukherjee, J., as he then was, after referring to the said observation of Lord Cairns, said (at 672):

No man should suffer because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the handmaids of justice and not the mistress of the justice. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied.

17. It is well to remember that the CPC is a body of procedural law designed to facilitate justice and it should not be treated as an enactment providing for punishments and penalties. The laws of procedure should be so construed as to render justice wherever reasonably possible. It is in our opinion, not unreasonable to demand restitution from a person who has purchased the property in court auction being aware of the pending appeal against the decree."

41. In the case of Ghanshyam Das versus Union of India (1984) 3 SCC 46, the Hon'ble Supreme Court has held that our laws of procedure are based on the principle that as far as possible no proceedings in a court of law should be allowed to be defeated on their technicalities. In the case of Sukhveer Singh versus Brijpal Singh (1997) 2 SCC 200 it was held that procedure is the handmaid to substantial rights.

42. In the case of Salem Advocate Bar Association versus Union of India reported in AIR 2005 SCC 3353, the Hon'ble Supreme Court has held that the rule and procedure are handmaid of justice and not its mistress. It is relevant to reproduce Paragraph 21 of the report as under:

"21. The use of the word ''shall' in Order VII Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word ''shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are hand-maid of justice and not its mistress. In the present context, the strict interpretation would defeat justice."

43. In Hemareddi (D) Through Lrs. vs Ramachandra Yallappa Hosmani & other (2019) 6 SCC 756 the Hon'ble Supreme Court, highlighted the need to apply laws of procedure in a manner so that substantial justice is facilitated.

44. Thus, it is settled in law that the procedure is something designed to facilitate justice. The procedural laws are not treated as an enactment providing for punishments or penalties. They are the handmaid of justice and are to be construed in a way to promote justice and not to frustrate it. Any strict interpretation which defeats justice is to be avoided in the light of this object. The applicability of Order 41 Rule 27 to appeals from orders is to be considered to advance justice and the expression ''so far as may be' is to be construed liberally, keeping in view, the object of Rule 27 which is to enable the appellate court to pronounce a satisfactory judgment, if in its judicial discretion the proposed additional evidence is required for pronouncing a satisfactory judgment. The applicability of Order 41 Rule 27 C.P.C. cannot be restricted to the appeals from decrees. The appellate court has to pronounce satisfactory judgment in appeal from orders as well. If it requires the additional evidence to enable it to pronounce a satisfactory judgment it has power & jurisdiction to take additional evidence in appeal from order as well, and particularly when there is no interdict in C.P.C. This Court therefore, holds that Order 41 Rule 27 C.P.C. applies to the Appeal filed under Section 108 r/w Order 43 Rule 1 (r) C.P.C.

45. In the case of Zila Parishad Badaun and another versus Brahma Rishi Sharma reported in AIR 1970 Allahabad page 376 facts were that against the order of ad-interim injunction under Order 39 C.P.C., First Appeal From Order was filed before this Court and finding apparent conflict between two Division Bench decisions in L.D. Meston School Society versus Kashi Government Mishra AIR 1951 Allahabad 558 and Raja Deo Singh versus Kumar Shambu Krishna Narayan 1960 A.L.J. 124, two questions were referred to the larger Bench. The second question, relevant for the present case, was if the order is appealable can the appellant rely on fresh evidence which was not before the trial court ?" The Hon'ble Full Bench held that ordinarily an appellant is confined to the evidence already on record prepared by the lower court. It is open to him to request the appellate court to admit fresh evidence under Order 41 Rule 27 C.P.C. Where permission is granted and fresh evidence is admitted under the aforesaid provision, the appellant can rely on that evidence as well. The Hon'ble Full Bench answered the second question that the appellant as a matter of right cannot rely on fresh evidence in appeal which was not before the trial court until it is admitted by the appellate court under Order 41 Rule 27 C.P.C. Paragraph nos. 22 and 23 of the case of Zila Parishad (supra) are being reproduced as under:

"22. Re. Question 2: Ordinarily an appellant is confined to the evidence already on record prepared by the lower Court. It is open to him to request the appellate Court to admit fresh evidence under Order 41, Rule 27, C. P. C. Where permission is granted and fresh evidence is admitted under the aforesaid provision, the appellant can rely on that evidence as well. Learned counsel for the appellants has not been able to cite any authority to show that an appellant as of right, can rely on fresh or additional evidence in appeal from an ex parte order passed under Order 39, Rule 1 or 2, C.P.C."

"23. In view of the above discussion our answer to the first question formulated in First Appeal from Order No. 152 of 1967 is in the 'affirmative'. Our answer to question No. 2 is as follows:

"The appellant as a matter of right cannot rely on fresh evidence in appeal which was not before the trial Court until it is admitted by the appellate Court under Order 41, Rule 27, C.P.C."

46. In the case of Rajesh Jaiswal and another Y.S. Anuj Shah and another reported in 2013 (3) ALJ 67, which was also a case arising out of the matter of grant of temporary injunction and an application for additional evidence filed in the Misc. Appeal was rejected, this Court held that Order 43 Rule 2 C.P.C. provides that Order 41 C.P.C. shall apply to appeals from orders also which means appeals preferred against orders as specified under Section 104 read with Order 43 Rule 1. It means that Order 41 Rule 27 C.P.C. can be applied to Misc. Appeals as well and there is no bar in taking new material on record at the appellate stage in the appeal arising out of orders. The appellate court has full authority to accept affidavits/documents in addition to those filed in the court below if necessary for the purposes of deciding the injunction matter subject to certain limitations. Paragraph nos. 5 and 6 of Rajesh Jaiswal case (supra) are being reproduced hereunder:

"5. Order XLIII. Rule 2. C.P.C. provides that rules of Order XLI, C.P.C. shall apply to appeals from orders also which means appeals preferred against orders as specified under Section 104 read with Order XLIII, Rule 1 including one arising from grant or refusal of interim injunction. It means Order XLI, Rule 27, C.P.C. can be applied to miscellaneous appeals as well and there is no bar in taking new material on record at the appellate stage in appeals arising out of orders. Therefore, also the appellate Court has full authority to accept affidavits/documents in addition to those filed in the Court below, if necessary for the purposes of deciding the injunction matter subject to certain limitations."

"6. In the above legal scenario the appellate Court below is not right in refusing to accept the documents in appeal and erred in refusing them on the ground that the provisions of Order XLI, Rule 27, C.P.C. are not applicable. In view of the above, the impugned order dated 24.9.2012 is unsustainable and is hereby quashed and the Court below is directed to consider the application 15C afresh and to decide the appeal itself in accordance with law, as expeditiously as possible, preferably within a period of four months from the date of production of a certified copy of this order."

47. In the case of Bal Krishna versus Virendra Kumar Misc. Single No. 15947 of 2017, decided on 5/7/2019 this Court considered the Full Bench Judgment in the case of Zila Parishad (supra) and in the case of Rajesh Jaiswal (supra) and held that the additional evidence is permissible to be filed in Misc. Appeal.

48. In the case of (Smt. Malti Devi & another versus State of U.P. & another) Matters under Article 227 No. 4312 of 2018 decided on 09.10.2018, relied upon by the learned counsel for the petitioner, this Court has held that the appellate court can consider the additional evidence by giving other party an opportunity to rebut it and further can decide the injunction matter after making necessary enquiry within the scope of Order 39 Rules 1 & 2 C.P.C.

49. Point No. 2: If the appellate court has correctly applied the law under Order 41 Rule 27 C.P.C. in rejecting the petitioner's application for admission of additional evidence.

50. Now it is appropriate to reproduce Order 41 Rule 27 C.P.C., 1908 and to consider the law on the subject Order 41 Rule 27 read as under:

"Order 41 Rule 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 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."

51. In the case of Union of India versus Ibrahim Uddin and another (2012) 8 SCC 148 the Hon'ble Supreme Court held that the appellate court has the power to allow the document to be produced and a witness to be examined but the requirement of law is that if the court finds it necessary to obtain such evidence to enable it to pronounce a judgment. The provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal. It has also been held that the words ''for other substantial cause', must be read with the word ''required' in the beginning of the sentence, so, it is only where for substantial cause the appellate court requires additional evidence then this rule will apply.

52. Paragraph nos. 36 to 48 of the judgment in the case of Ibraham Uddin (supra) are being reproduced 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: AIR 1975 SC 479] and Syed Abdul Khader v. Rami Reddy [(1979) 2 SCC 601: AIR 1979 SC 553] .)

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: AIR 1978 SC 798] )

38. Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. (Vide Lala Pancham [AIR 1965 SC 1008] .)

39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava [AIR 1957 SC 912] and S. Rajagopal v. C.M. Armugam [AIR 1969 SC 101] .)

40. 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.

41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment.

42. Whenever the appellate court admits additional evidence it should record its reasons for doing so (sub-rule (2)). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the court of further appeal to see, if the discretion under this Rule has been properly exercised by the court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the Rule.

43. The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.

44. It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable, particularly when the order is subject to further challenge before a higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision-making. The person who is adversely affected must know why his application has been rejected. (Vide State of Orissa v. Dhaniram Luhar [(2004) 5 SCC 568: (2008) 2 SCC (Cri) 49: AIR 2004 SC 1794] , State of Uttaranchal v. Sunil Kumar Singh Negi [(2008) 11 SCC 205: (2008) 2 SCC (L&S) 1093] , Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity [(2010) 3 SCC 732: AIR 2010 SC 1285] and Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd. [(2010) 13 SCC 336: (2010) 4 SCC (Civ) 904] )

45. In City Improvement Trust Board v. H. Narayanaiah [(1976) 4 SCC 9: AIR 1976 SC 2403] , while dealing with the issue, a three-Judge Bench of this Court held as under: (SCC p. 20, para 28) "28. ... We are of the opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence."

A similar view has been reiterated by this Court in Basayya I. Mathad v. Rudrayya S. Mathad [(2008) 3 SCC 120] .

46. A Constitution Bench of this Court in K. Venkataramiah [AIR 1963 SC 1526] , while dealing with the same issue held: (AIR p. 1529, para 13) "13. It is very much to be desired that the courts of appeal should not overlook the provisions of clause (2) of the Rule and should record their reasons for admitting additional evidence. ... The omission to record the reason must therefore be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory."(emphasis added) In the said case, the Court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. In such a fact situation, the order allowing such application did not vitiate for want of reasons.

47. 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.

48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage."

53. In the case of Ibraham Uddin (supra) the Hon'ble Supreme Court has also laid down the stage of consideration of application under Order 41 Rule 27 C.P.C. and as per this judgment an application under Order 41 Rule 27 C.P.C. is to be considered at the time of hearing of appeal on merits, so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issue involved. It has been clearly held that an application for taking additional evidence on record at an appellate stage, even if filed during pendency of the appeal, is to be heard at the time of the final hearing of the appeal, at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence is required to be taken on record in order to pronounce the judgment or for any other substantial cause. If the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total non application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is allowed to be ignored. It is relevant to reproduce paragraph nos. 49 to 52 of the judgment in the case of Ibrahim Uddin (supra) as under:

"49.An application under Order 41 Rule 27 C.P.C. is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. 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. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court. (Vide Arjan Singh v. Kartar Singh and Natha Singh v. Financial Commr. Taxation.)

50. In Parsotim Thakur v. Lal Mohar Thakur it was held: (LW pp. 86- 87) ".....The provisions of Section 107, Civil Procedure Code, as elucidated by Order 41 Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and fill up omissions in the court of appeal.

........... Under Rule 27, clause (1) (b), it is only where the appellate court ''requires' it (i.e. find it needful)... 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'.

.......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 evidence as it stands. Wherever the court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified.. the power so conferred upon the court by the Code ought to be very sparingly exercised, and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case."

51. In Arjan Singh v. Kartar Singh this Court held: (AIR pp. 195-96 paras 7-8) "7.... If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would 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 was non existent..........

8....The order allowing the appellant to call the additional evidence is dated 17-8-1942. The appeal was heard on 24-4-1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing its judgment."

52. Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored."

54. In the case of State of Rajasthan versus T. N. Sahani and others (2001) 10 SCC 619, the Hon'ble Supreme Court has held that the application under Order 41 Rule 27 should have been decided along with appeal. If the court finds the document necessary to pronounce the judgment in the appeal in more satisfactory manner, it would have allowed the same, if not, the same would have been dismissed at that stage, but taking a view on the application before hearing of the appeal would be inappropriate and for the said reason the dismissal of the said application under Order 41 Rule 27 C.P.C. at the stage prior to the stage of deciding the appeal was held untenable. Paragraph no. 4 of the T.N. Sahani Case (supra) is being reproduced as under:

"4. It may be pointed out that this Court as long back as in 1963 in K Venkataramiah v. Seetharama Reddy pointed out the scope of unamended provision of Order 41 Rule 27(c) that though there might well be cases where even though the court, found that it was able to pronounce the judgment on the state of the record as it was, and so, additional evidence could not be required to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. This is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41 Rule 27(b) CPC can be invoked. So the application under Order 41 Rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view, would be inappropriate. Further the reason given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly set aside. The application is restored to its file. The High Court will now consider the appeal and the application and decide the matter afresh in accordance with law."

55. As regards the procedure to be followed after admission of the additional evidence, it has been held in the case of Corporation of Madras and another versus M Parthasarathy and others reported in (2018) 9 SCC 445 that if the additional evidence is allowed, the respondents must be given opportunity to file rebuttal evidence to counter the additional evidence and if the said procedure is not adopted the court commits error of procedure involving the question of jurisdiction.

56. In the case ofUnion of India versus K.V. Lakshman and others reported in (2016) 13 SCC 124 the Hon'ble Supreme Court has held that Order 41 Rule 27 of C.P.C. is a provision which enables the party to file additional evidence at the first and second appellate stage. If the party to appeal is able to satisfy the appellate court that there is justifiable reasons for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject matter of the lis, the court should allow the party to file such additional evidence. After all, the court has to do substantial justice to the parties. Merely because the court allow one party to file additional evidence in appeal, would not by itself mean that the court has also decided the entire case in his favour and accepted such evidence. Indeed once the additional evidence is allowed to be taken on record the appellate court is under obligation to give opportunity to other side to file additional evidence by way of rebuttal. In the case of Akhilesh Singh @ Akhileshwar Singh vs. Lal Babu and others reported in (2018) 4 SCC 659, it has been held that though Order 41 Rule 27 is silent as to the procedure to be adopted by the High Court after admission of additional evidence, but in view of the provisions of Order 41 Rule 2 C.P.C. the appellate court after admission of additional evidence has to follow the procedure as per the rules of natural justice and fair play. The contesting party should be given an opportunity to file evidence in rebuttal against the additional evidence to counter it. In the case of Uttaradi Mutt versus Raghavendra Swamy Mutt (2018) 10 SCC the same principle has been reiterated that the other party shall be afforded opportunity to lead evidence in rebuttal.

57. In the case of Uttaradi Mutt versus Raghavendra Swamy Mutt (2018) 10 SCC 484, the Hon'ble Supreme Court made it clear that by allowing the application filed under Order 41 Rule 27 C.P.C. it would not follow that the additional document/additional evidence can be straightaway exhibited, rather, the respondent/applicant would have to not only prove the existence, authenticity and genuineness of those documents, but also the contents thereof in accordance with law. Mere admission of the additional evidence by the appellate court does not amount to those documents being straightaway exhibited. Such documents have to be proved in accordance with law. Paragraph No. 12 of the case of Uttaradi Mutt (supra) is being reproduced as under:

"12. That takes us to the second contention raised by the appellant that even if there was sufficient ground for allowing the stated applications filed by the respondent-defendant for production of additional evidence, the genuineness and the contents of the additional documents would have to be proved by the party placing reliance thereon. As regards this plea, we find that the High Court has made it amply clear that the fact that the applications are allowed per se is not to give any direction to straightaway exhibit the addition

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al documents, but that it could be exhibited subject to proof. The High Court has unambiguously observed that the documents will have to be proved in accordance with law. We make it amply clear that by allowing the three applications filed by the respondent-defendant under Order 41 Rule 27 C.P.C. it would not follow that the additional documents/additional evidence can be straightaway exhibited rather, the respondent would have to not only prove the existence, authenticity and genuineness of the said documents but also the contents thereof, as may be required by law." 58. The following propositions of law as laid down in the aforesaid judgments on the scope of Order 41 Rule 27 may be summarised: 1. 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. 2. The appellate court , as an exception to the above general principle may permit additional evidence only if the conditions laid down in Rule 27 are found to exist. 3. If the appellate court requires additional evidence to enable it to pronounce a satisfactory judgment, it can permit additional evidence. 4. If the appellate court, on the basis of evidence already on record can pronounce a satisfactory judgment this provision does not entitle it to let in fresh evidence only for filing lacuna in the evidence and to pronounce judgment in a particular way. 5. The matter is entirely in the direction of the appellate court and is to be used sparingly and judiciously, circumscribed by the limitations in the rule itself. 6. The application under Order 41 Rule 27 should be heard and decided at the time of final hearing of the appeal and if it is decided before hearing of appeal, the order would be a product of total non application of mind, as to whether such evidence was required to be taken on record to pronounce the judgment or not and would remain inconsequential, inexecutable and liable to be ignored. 7. The parties are not entitled as of right to the admission of the additional evidence. 8. Where the additional evidence is admitted the appellate court shall record reasons for such admission. 9. If the application for additional evidence is allowed, the additional evidence/documents will have to be proved regarding their existence, authencity, genuineness and also their contents. Mere admission of the documents in additional evidence does not amount to those documents being straightway exhibited. 10. On admission of additional evidence, the other side is to be given opportunity to file evidence in rebuttal. 59. Now coming to the impugned order, this Court finds that the same cannot be legally sustained as the appellate court has not followed the principle of law under Order 41 Rule 27 C.P.C. and the grounds on which the impugned order has been passed are wholly untenable. 60. The impugned order suffers from non application of judicial mind to the legal requirements for consideration. The stage of consideration, as per the settled law, is at the time of consideration of the appeal on merits but in the present case, the application has been decided at a stage prior to consideration of the appeal on merits and as such the relevant consideration of appreciating the evidence on record to reach the conclusion that the additional evidence was required to be taken on record to pronounce satisfactory judgment in appeal is lacking in the impugned order. Any such satisfaction that the proposed additional evidence was required for deciding the appeal in a satisfactory manner by the appellate court is not manifested in the impugned order. 61. The impugned order also suffers from illegality as the appellate court rejected the application on misconception of law that it has to confine itself to the material on record of the trial court and in Misc. Appeal no additional evidence/material could be admitted, whereas the provision of Order 41 Rule 27 applies to appeal from order as well, and the appellate court has the power to admit additional evidence subject to conditions under Order 41 Rule 27 itself. 62. The other ground of rejection that the proposed documents i.e. the written memorandum dated 27.08.1998 and the copies of the statements of the petitioner, the respondent no. 2 and their sister Smt. Shashi Prabha did not disclose that the parties have also compromised in respect of suit property, is also not sustainable, as this is entering into the merits of the documents with respect to the petitioner's case, whereas at this stage the court had to consider if those documents were relevant or not. The relevancy was required to be considered. Admissibility in evidence of the proposed documents was a matter for consideration, if those documents were admitted in evidence. In the case of Uttaradi Mutt (supra) the Hon'ble Supreme Court has held that by allowing the application under Order 41 Rule 27 C.P.C. it would not follow that the additional evidence has been straightaway exhibited. Such additional evidence/documents have to be proved in accordance with law. 63. I have also considered the judgments reported in (2001) 92 R.D. 67 Mahavir Singh and others versus Naresh Chandra and another of Hon'ble the Supreme Court and in the case of Rita Rani versus Tanu Chauhan and others reported in (2005) 61 ALR 264 which were cited before the appellate court below from the side of the present respondent no. 2. 64. The judgment in the case of Mahavir Singh and others versus Naresh Chandra and another laid down the principle on the scope of Order 41 Rule 27 C.P.C. which has already been discussed in this judgment. In the said judgment it has been held that Section 107(d) C.P.C. is an exception to the general rule and the additional evidence can be taken only when the condition and limitation laid down in the said rule are found to exist. When the appellate court finds itself unable to pronounce judgment, owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of Court delivering it. The principle of law as laid down in the case of Mahavir Singh (supra), would apply to the facts of the present case and the impugned order, as it does not record its satisfaction on the point if the appellate court was able to pronounce judgment on the basis of evidence/material available on the record of the trial court and if the additional evidence was required for pronouncing a satisfactory judgment the impugned order cannot be sustained. 65. So far as the case Reeta Rani (supra) is concerned the same was rendered in the circumstance of that case as is evident from paragraph 6 of the report. 66. This Court is of the considered view that the impugned order cannot be sustained and deserves to be set aside. The matter deserves to be remitted to the appellate court below to decide the petitioner's application under Order 41 Rule 27 C.P.C. in accordance with law, afresh, after providing opportunity of hearing to the parties without being influenced from the impugned order dated 29.03.2006. 67. Thus, considered, the petition is allowed. The impugned order dated 29.03.2006 is set aside. The matter is remitted to the learned appellate court for fresh decision on the petitioner's application for additional evidence, as per law, discussed above, expeditiously and preferably within a period of six months from the date of production of certified copy of this judgment before the appellate court. No order as to costs.
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