Rajiv Sharma, J.@mdashThis Regular Second Appeal is directed against the judgment and decree dated 15.12.2012, rendered by learned Additional District Judge, (Fast Track Court), Mandi, District Mandi, H.P., in Civil Appeal No. 79/2010. "Key facts" necessary for the adjudication of this Regular Second Appeal are that the respondents/plaintiffs (hereinafter referred to as the "plaintiffs" for the sake of convenience) filed a suit for recovery of Rs. 10,00,000/- against defendant No. 3/appellant, Jagdish Chand, (hereinafter referred to as "defendant No. 3" for the sake of convenience) and defendants No. 1 and 2/proforma respondents No. 6 and 7 (hereinafter referred to as "defendants No. 1 and 2" for the sake of convenience). According to the plaintiffs, Hira Singh was owner of Tipper bearing registration No. HP-31B-0503. On 25.6.2005, at about 7.30 A.M., Hira Singh was going from Badaun to Trifalghat along with conductor on his Tipper. He was driving the tipper''. When he reached near Badaun, there were stones and debris lying on the road, which had fallen on account of construction of a new road on the upper side, being carried out through defendant No. 3 by defendant No. 2, Executive Engineer, HPPWD, Sarkaghat. A heavy boulder fell on the front portion of the Tipper from the upper side of the road, as a result of which, Tipper tilted and fell down from the road into a deep Nallah. Hira Singh sustained multiple grievous injuries and was taken to Civil Hospital, Sundernagar, from where he was referred to PGI Chandigarh. However, he died on the way. Hira Singh was 38 years of age. He was the sole bread earner in the family. According to the plaintiffs, the accident took place on account of fall of boulders and debris from the newly constructed road and due to negligence of the defendants. The President, Gram Panchayat, issued a detailed report in this regard. The residents of Village Badaun also informed the Superintendent of Police, Mandi about the accident. The FIR was registered on 25.6.2006. The legal notice dated 3.8.2007 u/s 80 of the CPC was also sent to defendant No. 1.
2. Suit was contested by defendants No. 1 and 2. On merits, they denied that the Public Works Department had carried out any work. They also denied that they had allotted any work to contractor for construction of the road. According to them, accident took place due to act of the God and not due to the negligence on the part of the defendants.
3. Defendant No. 3 also contested the suit by filing separate written statement. According to him, road in question was in proper condition at the time of accident. The vehicles were regularly plying on the road. The accident had taken place due to negligent driving of deceased Hira Singh. He denied that there was sudden fall of boulders and debris on the spot.
4. Learned trial Court framed the issues on 27.11.2008 and decreed the suit for recovery of Rs. 10,00,000/- vide judgment and decree dated 13.9.2010. The defendants were jointly and severally held liable for the payment of damages.
5. Feeling aggrieved, defendant No. 3 preferred an appeal before learned Additional District Judge, (Fast Track Court), Mandi, who vide judgment and decree dated 15.12.2012 dismissed the appeal, but the plaintiffs were held entitled to compensation/damages of Rs. 7,00,000/- jointly and severally for the death of Hira Singh caused due to the negligence on the part of the defendants along with interest at the rate of 6% per annum from the date of filing of the appeal. Hence, this appeal.
6. It would be apt at this stage to state that defendant No. 3 also filed an application under Order 41 Rule 27 of the CPC in the Court of learned Additional District Judge (Fast Track Court), Mandi, H.P.. He dismissed the same vide separate order dated 15.12.2012.
7. Mr. R.K. Gautam, learned Senior Advocate, has vehemently argued that learned Additional District Judge has erred in law while dismissing the application under Order 41 Rule 27 of the Code of Civil Procedure. According to him, the Courts below have misread oral as well as documentary evidence.
8. Mr. G.R. Palsra, learned Advocate, appearing on behalf of the plaintiffs, has supported the impugned judgment and decree dated 15.12.2012.
9. P.W. 1 Ambika Devi, deposed that on 25.6.2006, at about 7.30 A.M. when her husband deceased Hira Singh was driving the Tipper and reached near Badaun, a heavy boulder fell on the front portion of the Tipper from the upper side of the road, which was being constructed by defendant No. 2 through defendant No. 3. PW4, Kaushalya Devi, is an eye witness of the occurrence. According to her, on 25.6.2006 at about 7.30 A.M., she was cutting grass near the spot. The Tipper was parked on the road. Debris and stones fell down on the Tipper from the road and Tipper rolled down into the gorge. According to her, the accident took place due to sudden fall of debris and stones on the Tipper and the driver was not responsible for the same. PW2, Dr. Jitender Singh deposed that on 25.6.2006, he medically examined Hira Singh and issued MLC Ext. PW2/A. He also conducted post mortem on the body of Hira Singh. Hira Singh died due to external bleeding. PW3 Roop Lal, deposed that he remained posted as driver from April 2002 to November 2006 in SDH Sundernagar. He brought the summoned record. PW6, Suresh Kumar, placed on record copy of death certificate of Hira Singh vide Ext. PW6/A and copy of Pariwar Register Ext. PW6/B. PW7, Naresh Kumar, deposed that in the month of June 2006, he was posted as SHO. According to him, on 25.6.2006, he received an information that one person, in injured condition, was admitted in the Civil Hospital, Sundernagar. He sent HC Bhim Singh to the Hospital to record statement of the injured. However, statement of the injured was not recorded because of his serious condition. Thereafter, statement of PW5 Bittu Ram, who was conductor with tipper in question at the relevant time, was recorded. PW5, Bittu Ram, deposed that he along with Hira Singh was going to Trifalghat from Badaun in the Tipper. When they reached near Badaun Nallah, they saw boulders lying on the road. He got down from the Tipper to remove the boulders and Hira Singh stopped the Tipper at some distance. When he was removing the debris, boulders and debris started falling down from the road under construction on the upper side. They directly fell on the upper portion of the Tipper. The Tipper lost its balance and fell into the Nallah. Hira Singh sustained injuries. He was taken to Hospital at Sundernagar. He denied the suggestion that Hira Singh was driving the Tipper negligently. In fact, the Gram Panchayat had also prepared a report in this regard. D.W. 1, D.R. Shastri, Executive Engineer, Sarkaghat, led his evidence by way of filing an affidavit. He deposed that he was posted in B & R Division, HPPWD and the road Trifalghat-Badaun-Batehra was within his jurisdiction. He was aware about the facts of the case. The road namely Trifalghat-Badaun-Batehra Chowki was constructed by Public Works Department. According to him, the accident took place due to act of the God. He admitted that the accident occurred on Trifalghat-Badaun road. He also admitted that on the upper side of this road, there was one more road. It was known as Sampn-Badaun road. He admitted that contract of this road was given to defendant No. 3. Defendant No. 3, Jagdish Chand, while appearing as D.W. 3 deposed that on 25.6.2006, Tipper was loaded with sand and was unloaded at Banoni at about 6.30 A.M. He was local resident of that area and the Tipper was unloaded in his presence. At about 7.25 A.M. he came to know that Tipper met with an accident. According to him, accident took place due to rash and negligent driving of the Tipper driver. No work was being executed by him on the road on 25.6.2006. He admitted that he was a government contractor. He admitted that there was a road known as Samon-Badaun road above Trifalghat-Badaun road. He also admitted that construction work of the road was allotted to him many years ago.
10. What emerges from the statement of D.W. 1, Dr. D.R. Shastri, that the work was allotted to defendant No. 3 for the construction Samon-Badaun road. He executed the work. It is duly proved on record that the accident occurred due to rolling down of boulders and debris from the upper side of the road, known as Samon-Badaun road. PW4 Kaushalya Devi and PW5 Bittu Ram were eye-witnesses of the occurrence. PW4 Kaushalya Devi was cutting grass near the spot and PW5 Bittu Ram was conductor with the Tipper, when the accident took place. The deceased was 38 years old at the time of accident. Learned Additional District Judge has rightly applied multiplier of 15 while awarding a sum of Rs. 7,00,000/- to the legal heirs of the deceased Hira Singh.
11. Defendant No. 3 has also filed an application under Order 41 Rule 27 of the CPC before the learned Additional District Judge. He wanted to lead additional evidence by taking specific plea that the work was not allotted to him. According to him, he could not place M.B. document on record since this document was not in his possession. He also wanted to produce a letter dated 21.7.2006 regarding commencement of the construction of the road and a letter dated 18.8.2010 since these documents were not available with him earlier.
12. The plaintiffs contested and resisted the application. D.W. 1 D.R. Shastri admitted that the construction work was allotted to defendant No. 3. The documents sought to be produced were well within knowledge of defendant No. 3. He did not lead any evidence to establish on record that despite due diligence, he could not produce these documents before the learned trial Court. Defendant No. 3 cannot be permitted to fill-up lacuna. He could have produced these documents if he had shown due diligence during the course of the trial as well. Learned Additional District Judge, by passing a speaking order, has rightly rejected the application under Order 41 Rule 27 of the Code of Civil Procedure. Learned Courts below have correctly appreciated oral as well as documentary evidence on record..
13. Their Lordships of the Hon''ble Supreme Court in
"10. We shall first deal with the appeals preferred against the judgment and order of the High Court rejecting Civil Application Nos. 964 and 1150 of 2002 filed by the appellants herein for adducing additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. The documents sought to be produced were contained in Annexure I to the applications. The applications were opposed by the respondents. It was submitted on behalf of the appellants that the applications may be treated as one under Order XLI Rule 27(1)(b) of the Code of Civil Procedure, apparently because the other provisions or the rule did not apply to the facts and circumstances of the case. The High Court noticed that a similar Civil Application being No. 4849 of 2000 had been filed earlier when this appeal had been placed for hearing before another Division Bench of the High Court, but the said application was rejected by order dated June 22, 2000. The High Court further found that Rule 27(1)(b) of Order XLI can be invoked only if the 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. In the instant case it was not as if the additional evidence was required by the Court to enable it to pronounce judgment and, therefore, additional evidence was sought to be adduced for "substantial cause" since serious prejudice would be caused to the appellants if the additional evidence was not permitted to be adduced. Reliance was placed on the judgment of this Court in
11. We find no error in the approach of the High Court. We have earlier noticed the long history of litigation which preceded the filing of the suit. The documents sought to be brought on record are not documents which were discovered later or came into existence after the filing of the suit. The documents are part of the Government records and they could have been produced in the suit.
12. Mr. Sorabjee appearing on behalf of the respondents rightly submitted that Order XLI Rule 27 of the CPC cannot be invoked by a party to fill up the lacunae in his case. The State found itself in a dilemma when confronted with two sets of documents conflicting with each other. There was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by the State or that such evidence was not within its knowledge. In fact no ground whatsoever was made out for adducing additional evidence, and the sole purpose for which the State insisted upon adducing additional evidence was to persuade the Court to accept the point of view urged on behalf of the State, since the evidence on record did not support the case of the appellants/State. Having considered all aspects of the matter we are satisfied that the High Court rightly rejected the applications filed by the State for adducing additional evidence at the stage of appeal which was intended only to fill up the lacunae in its case.
14. Similarly, in
"6. In the circumstances, the learned Counsel for the appellant, reiterated the claim made before the High Court that they should be permitted to adduce further evidence before the Court to substantiate their claim but when the matters were pending before the Trial Court and the High Court they had ample opportunity to do so. If they had to produce appropriate documents, they could have done so and also it is not clear as to the nature of the documents which they seek to produce which will tilt the matter one way or the other. The scope of Order XLI, Rule 27, CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the Court to pronounce proper judgment. In this view of the matter, we do not think there is any justification for us to interfere with the orders of the High Court. However, in view of the arguments addressed by the learned Counsel for the appellant, we have also gone into various aspects of the matter and have given another look at the matter and our findings are that the view taken by the High Court is justified. However, one aspect needs to be noticed. The High Court need not have stated that the first respondent is entitled to the relief even on the basis of adverse possession. We propose to examine this aspect.
15. It is settled law by now that party guilty of remissness in not producing evidence in trial Court, cannot be allowed to produce it in appellate Court. There must be satisfactory reasons for non-production of the evidence in trial Court seeking production thereof in appellate Court. Their Lordships of the Hon''ble Supreme Court in a recent judgment in
"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 XLI 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, provision does not apply, when on the basis of 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:
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:
38. Under Order XLI, 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: Lata Pancham and others (supra)].
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:
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 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 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:
45. In
"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 insistence by leading other evidence."
(Emphasis added).
A similar view has been reiterated by this Court in
46. A Constitution Bench of this Court in K. Venkataramiah (supra), while dealing with the same issue held:
"It is very much to be desired that the Courts of appeal should not overlook the provisions of cl. (2) of the Rule and should record their reasons for admitting additional evidence.....The omission to record 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 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 condition 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.
Stage of Consideration:
38. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find 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:
Accordingly, in view of the observations and analysis made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands dismissed. There shall, however, be no order as to costs.
