Gill & Co. v. Bimla Kumari Jolly [1986 Del]

Judgment Summarized by Delhi Law Academy – Jaipur

The facts giving rise to this second appeal by the tenant M/s. Gill and Company Pvt. Ltd. succinctly are that the premises in question were let to “the tenant company” way back in 1966. On 12th February 1975, the respondent landlady moved an application for eviction of the appellants on the grounds of (a) non-payment of rent ; (b) mis-user, (c) bonafide requirement as residence for herself and members of her family ; and (d) Sub-letting, assignment or parting with possession of the demised premises by appellant No. 1 in favour of appellant No. 2. The eviction petition was contested hotly by the appellants on various grounds. Eventually, however, an order of eviction was made by an Additional Rent Controller, Delhi on 20th November 1979 only on the ground that appellant No. 1 had parted with possession of the premises in question in favour of appellant No. 2 without the consent of the respondent landlady.

As regards the ground of non-payment of rent despite due service of notice of demand on appellant No. 1, the Additional Rent Controller found that there was a default on the part of appellant No. 1 in the payment of rent for the period with effect from 1st August 1974 onwards but the tenant was entitled to benefit of the provisions embodied in Section 14(2) of the Act as he had duly complied with an order made earlier by the Additional Rent Controller under Section 15(1) of the Act.

During the pendency of the first appeal, the appellants made an application dated 24th March 1981 under Order XLI Rule 27 read with Section 151, Code of Civil Procedure (‘the Code’) for permission to produce some additional evidence viz. documents and accounts books etc. It was stated that the trial Court had arrived at the finding that appellant No. 1 had Sub-let, assigned or otherwise parted with possession of the premises to appellant No. 2 primarily for the reason that the appellants did not produce the relevant records and documents despite their having been served with a notice dated 7th March 1978 purporting to be under Order XII Rule 8 of the Code read with Section 66 of the Evidence Act (copy marked XI) but such notice was never served on appellant No. 1 and as such the trial Court was in error in assuming that the records and documents mentioned in the notice marked ‘XI’ had been with-held deliberately, and, therefore, the presumption that if produced, the same would not have supported the case of the appellants, would be well warranted.

The general rule is that an appellate court shall decide an appeal on the evidence led by the parties before the lower Court and shall not admit additional evidence for the purpose of disposal of an appeal. Rule 27 of Order XLI of the Code opens with the words, “The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court.” However, it empowers the Appellate Court to admit additional evidence in appeal under certain circumstances specified therein, namely, (i) where the lower Court has improperly refused to admit evidence ; (ii) where such additional evidence was not within the knowledge of the party or could not after the exercise of due diligence be produced by him at the time when the lower Court passed the decree ; or (iii) where the Appellate Court itself requires the evidence (a) to enable it to pronounce the judgment, or (b) for any other substantial cause.

This provision has been repeatedly considered by the Privy Council as well as the Supreme Court and the law as to the reception of evidence not produced before the trial Court is now well settled. The discretion given to the Appellate Court to receive and admit additional evidence is not arbitrary but is judicial one circumscribed by the limitations specified in Rule 27 itself. Evidently it is not a case where the lower Court had improperly refused to admit evidence. It was never tendered.

Likewise, it is not the case of the appellants that the additional evidence sought to be produced by them at the appellate stage was not within their knowledge or that the same could not be produced after exercise of due diligence They were well aware that their records had been seized by the income-tax department and, therefore, it was open to them to requisition the records from the said department by summoning the concerned official. No such effort seems to have been made. Indeed, the learned counsel for the appellants frankly conceded that they woke up to the need for producing additional evidence because of the finding of the trial Court that they did not produce the same despite service of notice under Order XII Rule 8 of the Code on them.

Indeed, the documents sought to be placed on record and proved by way of additional evidence are not the ones of from amongst these which had been seized by the income-tax department, rather it would appear from a perusal of the affidavit dated 20th March 1981 of the Secretary of appellant No. 1 and the application itself that these documents are being produced from their own possession because the documents seized by the income-tax department had not been released till the date of the application under Order XLI Rule 27 of the Code to them. So, the only question which falls for consideration is whether the additional evidence was required by the Appellate Court for enabling it to pronounce judgment or was there any other substantial cause for allowing the same.

In Parsotim Thakur v. Lal Mohar Thakur [AIR 1931 PC 143], the Judicial Committee observed that:

Provisions of Section 107 as elucidated by Order XLI Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak pans 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. finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. 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.

Supreme Court in K. Venkataramiah v. A. Seetharama Reddy:

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.

A five Judges Bench of the Supreme Court elucidated the legal position further in The Municipal Corporation of Greater Bombay v. Lala Pancham, saying that:

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 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.

The plea, that the importance of the documents was not realized by the appellants before the finding of the trial Court with regard to the withholding of those documents despite service of notice under Order XII Rule 8 of the Code and the adverse inference drawn against the appellants by the said Court would not bring the case within the expression “other substantial cause” in Order XII Rule 27 (1) (b) of the Code. Indeed, as shall be presently seen, the evidence already on record is quite sufficient for recording a proper and satisfactory judgment.

Apart from the consideration referred to above this must weigh with an Appellate Court for permitting additional evidence, it goes without saying that the new evidence sought to be adduced should have direct and important bearing on the main issue in the case.

So, there is absolutely no justification for permitting the additional evidence, which was admittedly in the possession of the appellants, on the flimsy ground that they did not realise their importance till adverse finding was given by the trial Court; for the reasons stated above. Hence, I find absolutely no justification for taking a view different from that of the learned Rent Control Tribunal in this behalf.