📘 CIVIL PROCEDURE CODE : DELHI HIGH COURT JUDGMENT

Order XLI Rule 27 – Gill & Co. v. Bimla Kumari Jolly [1986 Del]

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Case Law on Order 41 Rule 27

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

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.

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
• (iii) where the Appellate Court itself requires the evidence

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.

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.

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.

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.

The plea, that the importance of the documents was not realized by the appellants before the finding of the trial Court would not bring the case within the expression “other substantial cause”.

Apart from the consideration referred to above, 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.

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