There may be a question, which may be a “question of fact”, “question of law”, “mixed question of fact and law” and “substantial question of law.” Question means anything inquired; an issue to be decided. The “question of fact” is whether a particular factual situation exists or not. A question of fact, in the Realm of Jurisprudence, has been explained as under:-
“A question of fact is one capable of being answered by way of demonstration. A question of opinion is one that cannot be so answered. An answer to it is a matter of speculation which cannot be proved by any available evidence to be right or wrong.”
(Vide:Salmond, on Jurisprudence, 12th Edn. page 69, cited in Gadakh Yashwantrao Kankarrao v. E.V. alias Balasaheb Vikhe Patil & ors., AIR 1994 SC 678).
The rent note produced by the appellant/defendant No.1 before the court below does not prove anything in favour of the plaintiff/respondent. The same being a vague document is incapable of furnishing any information and, thus, is liable to be rejected. The said document does not make it clear as who has executed it and in whose favour the same stood executed. It does not bear any date as it cannot be ascertained when it was executed. The lease deed cannot be executed without the signature/thumb impression of the lessee. The said lease does not contain any signature/thumb impression of any lessee and also the tenure of the lease has not been mentionedtherein. The rent has been mentioned as Rs.22/- without giving any detail as to whether it was per day, fortnightly, monthly, quarterly or yearly or for ever. More so, there is no reference to the said rent note in the pleadings contained in the plaint, therefore, it is just to be ignored.
The Will in absence of any pleading either in the plaint or first appeal could not be taken on record. More so, the Will was not proved in accordance with law i.e. Section 68 of the Evidence Act.
(vii) The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the Court, it is just to be ignored. Though it may be a different case where in spite of specific pleadings, a particular issue is not framed and parties having full knowledge of the issue in controversy lead the evidence and the court records a finding on it.
C.A. No. 1374 of 2008 - Union of India Vs. Ibrahim Uddin, 2012 (3) KLT SN 73 : (2012) 8 SCC 148 : JT 2012 (6) SC 466 : 2012 (6) SCALE 476
IN THE SUPREME COURT OF INDIA
Union of India ....Appellant
Versus
Ibrahim Uddin & Anr. ....Respondents
J U D G M E N T
Dr. B. S. CHAUHAN, J.
1. This appeal has been preferred against the impugned
judgment and decree dated 19.4.2007 passed by the High Court of
Judicature at Allahabad in Second Appeal No.289 of 2000 by which
it has upheld the judgment and decree of the first appellate Court
dated 15.10.1999 passed in Civil Appeal No.81 of 1998 by which
the first appellate Court had reversed the judgment and decree of the
Civil Court dated 20.1.1998 passed in Original Suit No.442 of 1995
wherein the plaintiff/respondent no.1 had sought declaration of title
of the ownership in respect of the suit property.Page 2
2. Facts and circumstances giving rise to this appeal are:
A. Plaintiff/respondent no.1-Ibrahim Uddin filed Original Suit
No.442 of 1995 in the Court of Civil Judge, Agra on 25.7.1995
seeking a decree for declaration that he was the owner of the suit
property (Agriculture land measuring 25 bighas), making averments
that the suit land originally had been with the Maratha Government
(Scindia-Gwalior). The ancestors of the plaintiff having close
association with the Maratha Government, were made a grant in
respect of the suit land in the year 1800. Subsequently, the land was
partitioned between the ancestors of the plaintiff in the year 1819.
The plaintiff/respondent no.1 being the only heir (descendant) of
Smt. Hasin Begum and Zafaruddin became the absolute owner of the
land after the death of his mother Smt. Hasin Begum. The said land
was never sold, alienated, transferred or gifted to any person either
by the plaintiff or his ancestors at any point of time. The suit land
was given on rent to the State authorities in Agra by executing a rent
note for a sum of Rs.22/- per month. The Union of India claimed
title over the suit land illegally and in an unauthorised manner on
22.2.1993 and afterwards, thus the cause of action arose to approach
the court.
B. The defendant no.1/appellant filed the written statement
denying the averments and ownership of the plaintiff/respondent
no.1 and averred that the land belonged to the Ministry of Defence,
i.e., Union of India, a part of which has been leased out to several
persons for agriculture work and their lease has been renewed from
time to time. As they became unauthorised occupants, proceedings
had been initiated in accordance with law and eviction order had
been passed against the occupants/tenants.
C. In view of the pleadings, 8 issues were framed by the Trial
Court and after appreciating the evidence on record, the trial Court
came to the conclusion that Pedigree produced by the plaintiff
alongwith the plaint was not successfully proved; the plaintiff could
not prove any kind of grant by the Maratha Government to his
ancestors/great-grandfathers in the year 1800. Plaintiff failed to
prove the partition between his ancestors in 1819. The lease deed
alleged to have been executed in favour of the Military Estate
Officer under the Union of India, appellant/defendant No.1, was not
successfully proved. In view of the above, the suit was dismissed
vide judgment and decree dated 20.1.1998.
D. Aggrieved, the plaintiff/respondent no.1 preferred the first
appeal before the District Judge, Agra. During the pendency of the
said appeal, he preferred an application under Order XLI Rule 27 of
the Code of Civil Procedure 1908 (hereinafter called “CPC”) on
6.4.1998 for adducing additional evidence, i.e., Will executed by his
maternal grandfather dated 1.3.1929 in his favour bequeathing the
suit property. The said application was allowed by the first appellate
Court vide order dated 28.4.1999. The First Appeal itself stood
allowed by the first appellate Court vide judgment and decree dated
15.10.1999 wherein the first appellate Court came to the conclusion
that Maratha Government had made the gift of land in favour of
plaintiff’s fore-fathers which was subsequently partitioned. The
registered partition deed stood duly proved and it was the proof of
the title of the plaintiff/respondent no.1. The plaintiff/respondent
no.1 made an application for inspection of the record before the
officers of the appellant/defendant no.1 but perusal of the record was
not permitted. The appellant/defendant no.1 did not produce any
document to show its title and failed to produce the original record,
thus, adverse inference was drawn against it in view of the
provisions of Section 114 clause(g) of the Indian Evidence Act, 1872
(hereinafter called the Evidence Act). The Will, ttaken on record as
an additional evidence at appellate stage stood proved and thus,
contents thereof automatically stood proved.
4Page 5
E. Aggrieved, the appellant preferred Second Appeal before the
High Court which has been dismissed vide impugned judgment and
decree. Hence, this appeal.
3. Shri R.P. Bhatt, learned Senior counsel duly assisted by Ms.
Madhurima Tatia, Advocate has submitted that there was no
documentary evidence or trustworthy oral evidence that the suit
property had been given to the fore-fathers of the
plaintiff/respondent no.1 by the Maratha Government in the year
1800. Same remained the factual aspect in respect of alleged
partition among his fore-fathers in the year 1819. The first appellate
Court had no occasion to decide the application under Order XLI
Rule 27 CPC prior to the hearing of the appeal itself. More so, as
there has been no reference to the Will in the plaint or First Appeal,
thus, it could not be taken on record for want of pleadings in this
respect. Further, taking the Will on record did not mean that either
the Will or its contents stood proved. None had proved the said Will
and thus, could not be relied upon. If the Will is ignored, there is no
evidence on record to prove the case of the plaintiff/respondent no.1.
The High Court had framed 4 substantial questions of law at
the time of admission of the appeal and 2 additional substantial
questions at a later stage but did not answer either of them nor
recorded any finding that none of them was, in fact, a substantial
question of law, rather the appeal has been decided placing reliance
on the Will, which was liable to be ignored altogether and making
reference to the record of the Cantonment Board. In case, the Union
of India did not produce the revenue record before the trial Court,
the first appellate Court has wrongly drawn adverse inference under
Section 114(g) of the Evidence Act. Thus, the appeal deserves to be
allowed.
4. Per contra, Shri Asok Ganguly and Shri C.L. Pandey,
learned Senior counsel with Shri Vibhor Garg, Advocate vehemently
opposed the appeal contending that concurrent findings recorded by
the first and second appellate Court are not liable to be interfered
with in discretionary jurisdiction under Article 136 of the
Constitution of India, 1950. The registered partition deed of 1819 is
the proof of title of the plaintiff/respondent no. 1. In view of the fact
that the Second Appeal could be decided on limited issues, the High
Court was not bound to answer the substantial questions of law,
framed by it. The appeal lacks merit and is liable to be dismissed.
5. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
Presumption under Section 114(g) of the Evidence Act :
6. Generally, it is the duty of the party to lead the best
evidence in his possession, which could throw light on the issue in
controversy and in case such material evidence is withheld, the
Court may draw adverse inference under Section 114(g) of the
Evidence Act notwithstanding, that the onus of proof did not lie on
such party and it was not called upon to produce the said evidence.
(Vide: Murugesam Pillai v. Gnana Sambandha Pandara
Sannadhi, AIR 1917 PC 6; Hiralal & Ors. v. Badkulal & Ors.,
AIR 1953 SC 225; A. Raghavamma & Anr. v. A. Chenchamma &
Anr., AIR 1964 SC 136; The Union of India v. Mahadeolal
Prabhu Dayal, AIR 1965 SC 1755; Gopal Krishnaji Ketkar v.
Mohamed Haji Latif & Ors., AIR 1968 SC 1413; M/s. Bharat
Heavy Electrical Ltd. v. State of U.P. & Ors., AIR 2003 SC 3024;
Musauddin Ahmed v. State of Assam, AIR 2010 SC 3813; and
Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr., (2011)
9 SCC 126).
7. However, in Mt. Bilas Kunwar v. Desraj Ranjit Singh,
AIR 1915 PC 96, a view has been expressed that it is open to a
litigant to refrain from producing any document that he considers
irrelevant; if the other litigant is dissatisfied, it is for him to apply for
interrogatories/inspections and production of documents. If he fails
to do so, neither he nor the Court at his suggestion, is entitled to
draw any inference as to the contents of any such documents.
8. In Kamma Otukunta Ram Naidu v. Chereddy Pedda
Subba Reddy & Ors., AIR 2003 SC 3342, this Court held that all
the pros and cons must be examined before drawing an adverse
inference against a party. In that case the issue had been, as to
whether two persons had been travelling together in the vehicle and
presumption had been drawn only on the basis that the bus tickets of
both the persons were not produced. This Court held that
presumption could not have been drawn if other larger evidence
was shown to the contrary. (See also: Mohinder Kaur v. Kusam
Anand, (2000) 4 SCC 214; and Takhaji Hiraji v. Thakore
Kubersing Chamansing & Ors., AIR 2001 SC 2328).
9. In Municipal Corporation, Faridabad v. Siri Niwas, AIR
2004 SC 4681, this Court has taken the view that the law laid down
by this Court in Gopal Krishnaji Ketkar (supra) did not lay down
any law, that in all situations the presumption in terms of clause (g)
of Section 114 of the Evidence Act must be drawn.
10. In Mahant Shri Srinivas Ramanuj Das v. Surjanarayan
Das & Anr., AIR 1967 SC 256, this Court held that mere
withholding of documentary evidence by a party is not enough to
draw adverse inference against him. The other party must ask the
party in possession of such evidence to produce the same, and in
case the party in possession does not produce it, adverse inference
may be drawn:
“It is true that the defendant-respondent also did
not call upon the plaintiff-appellant to produce the
documents whose existence was admitted by one or
the other witness of the plaintiff and that therefore,
strictly speaking, no inference adverse to the
plaintiff can be drawn from his non-producing the
list of documents. The Court may not be in a
position to conclude from such omission that those
documents would have directly established the case
for the respondent. But it can take into
consideration in weighing the evidence or any
direct inferences from established facts that the
documents might have favoured the respondent
case.”
11. In Ramrati Kuer v. Dwarika Prasad Singh & Ors., AIR
1967 SC 1134, this Court held:
“It is true that Dwarika Prasad Singh said that his
father used to keep accounts. But no attempt was
made on behalf of the appellant to ask the court to
order Dwarika Prasad Singh to produce the
accounts. An adverse inference could only have
been drawn against the plaintiffs-respondents if
the appellant had asked the court to order them to
produce accounts and they had failed to produce
them after admitting that Basekhi Singh used to
keep accounts. But no such prayer was made to the
court, and in the circumstances no adverse
inference could be drawn from the non-production
of accounts.”
(See also: Ravi Yashwant Bhoir v. District Collector, Raigad &
Ors., AIR 2012 SC 1339).
12. In Smt. Indira Kaur & Ors. v. Shri Sheo Lal Kapoor,
AIR 1988 SC 1074, the lower courts drew an adverse inference
against the appellant-plaintiff on the ground that the plaintiff was not
ready and willing to perform his part of the contract. The question
arose as to whether the party had the means to pay. The court further
held that before the adverse inference is drawn against a particular
party, the conduct and diligence of the other party is also to be
examined. Where a person deposed that as he had deposited the
money in the Bank and the other party did not even ask as on what
date and in which Bank the amount had been deposited and did not
remain diligent enough, the question of drawing adverse inference
against such a person for not producing the Pass Book etc. cannot be
drawn.
13. In Mahendra L. Jain & Ors. v. Indore Development
Authority & Ors., (2005) 1 SCC 639, this Court held that mere
non-production of documents would not result in adverse inference.
If a document was called for in the absence of any pleadings, the
same was not relevant. An adverse inference need not necessarily
be drawn only because it would be lawful to do so.
14. In Manager, R.B.I., Bangalore v. S. Mani & Ors., AIR
2005 SC 2179, this Court dealt with the issue wherein the Industrial
Tribunal directed the employer to produce the attendance register in
respect of the first party workmen. The explanation of the appellant
was that the attendance registers being very old, could not be
produced. The Tribunal, however, in its award noticed the same and
drew an adverse inference against the appellants for non-production
of the attendance register alone. This Court reversed the finding
observing:
“As noticed hereinbefore, in this case also the
respondents did not adduce any evidence
whatsoever. Thus, in the facts and circumstances
of the case, the Tribunal erred in drawing an
adverse inference.
The initial burden of proof was on the workmen
to show that they had completed 240 days of
service. The Tribunal did not consider the question
from that angle. It held that the burden of proof was
upon the appellant on the premise that they have
failed to prove their plea of abandonment of
service”
(See also: A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; R.M.
Yellatti v. Assistant Executive Engineer AIR 2006 SC 355; and
Pratap Singh & Anr. v. State of M.P., AIR 2006 SC 514).
15. Order XI CPC contains certain provisions with the object to
save expense by obtaining information as to material facts and to
obtain admission of any fact which he has to prove on any issue.
Therefore, a party has a right to submit interrogatories relating to the
same matter in issue. The expression “matter” means a question or
issue in dispute in the action and not the thing about which such
dispute arises. The object of introducing such provision is to secure
all material documents and to put an end to protracted enquiry with
respect to document/material in possession of the other party. In
such a fact-situation, no adverse inference can be drawn against a
party for non-production of a document unless notice is served and
procedure is followed. Under Rule 14 of Order XI, the court is
competent to direct any party to produce the document asked by the
other party which is in his possession or power and relating to any
material in question in such suit. Rule 15 Order XI provides for
inspection of documents referred to in pleadings or affidavits. Rule
18 thereof, empowers the court to issue order for inspection. Rule 21
thereof provides for very stringent consequences for non-compliance
with the order of discovery, as in view of the said provisions in case
the party fails to comply with any order to answer interrogatories or
for discovery or inspection of documents, he shall, if he is a plaintiff,
be liable to have his suit dismissed for want of prosecution and if he
is a defendant, to have his defence, if any, struck out and to be
placed in the same position as if he had not defended, and the party
interrogating or seeking discovery or inspection may apply to the
court for an order to that effect. Thus, in view of the above, the suit
may be dismissed for non-compliance of the aforesaid orders by the
plaintiff and the plaintiff shall also be precluded from bringing a
fresh suit on the same cause of action. Similarly, defence of the
defendant may be struck off for non-compliance of such orders.
16. Thus, in view of the above, the law on the issue can be
summarised to the effect that, issue of drawing adverse inference is
required to be decided by the court taking into consideration the
pleadings of the parties and by deciding whether any
document/evidence, withheld, has any relevance at all or omission of
its production would directly establish the case of the other side.
The court cannot loose sight of the fact that burden of proof is on the
party which makes a factual averment. The court has to consider
further as to whether the other side could file interrogatories or apply
for inspection and production of the documents etc. as is required
under Order XI CPC. Conduct and diligence of the other party is
also of paramount importance. Presumption or adverse inference for
non-production of evidence is always optional and a relevant factor
to be considered in the background of facts involved in the case.
Existence of some other circumstances may justify non-production
of such documents on some reasonable grounds. In case one party
has asked the court to direct the other side to produce the document
and other side failed to comply with the court’s order, the court may
be justified in drawing the adverse inference. All the pros and cons
must be examined before the adverse inference is drawn. Such
presumption is permissible, if other larger evidence is shown to the
contrary.
17. In the instant case, admittedly, the plaintiff/respondent no.1
during the pendency of his suit had made an application before the
authorities under the control of the appellant/defendant no.1 to make
the inspection. However, he was not permitted to have any
inspection. The plaintiff/respondent no.1 did not submit any
interrogatory statement or an application for making inspection or
for production of the document as provided under Order XI CPC. In
such a fact-situation, in view of the law referred to hereinabove, it is
not permissible for the first appellate Court or the High Court to
draw any adverse inference against the appellant/defendant no.1.
Admissions:
18. The first appellate court while dealing with the issue of
admission and proof of documents held as under:
“The plaintiff has produced will dated l.3.1929 of
his maternal grandfather, Syed Nazim Ali which
the court had taken on record on 28.4.99 and the
defendant No.1 was given one week time for
producing the rebuttal, but the defendant No.1
did not produce any paper against the Will.
Therefore, it has been given in section 58 of the
Evidence that if the defendant does not produce
any paper in rebuttal, then it means that he
admitted the paper produced by the plaintiff. There
is no need of proving the same.” (Emphasis added)
19. The question does arise as to whether not filing a document
in rebuttal of a document amounts to an admission and whether the
provisions of Section 58 of the Evidence Act are attracted.
Order XII CPC deals with admission of the case, admission of
the documents and judgment on admissions. Rule 1 thereof provides
that a party to a suit may give notice by his pleading or otherwise in
writing that he admits the truth of the whole or any party of the case
of any other party. Rule 2 deals with notice to admit documents – it
provides that each party may call upon the other party to admit
within 7 days from the date of service of the notice of any document
saving all such exceptions. Rule 2A provides that a document could
be deemed to have been admitted if not denied after service of
notice to admit documents.
20. Admission is the best piece of substantive evidence that an
opposite party can rely upon, though not conclusive, is decisive of
the matter, unless successfully withdrawn or proved erroneous.
Admission may in certain circumstances, operate as an estoppel. The
question which is needed to be considered is what weight is to be
attached to an admission and for that purpose it is necessary to find
out as to whether it is clear, unambiguous and a relevant piece of
evidence, and further it is proved in accordance with the provisions
of the Evidence Act. It would be appropriate that an opportunity is
given to the person under cross-examination to tender his
explanation and clear the point on the question of admission.
(Vide: Narayan Bhagwantrao Gosavi Balajiwale v. Gopal
Vinayak Gosavi & Ors., AIR 1960 SC 100; Basant Singh v.
Janki Singh & Ors., AIR 1967 SC 341; Sita Ram Bhau Patil v.
Ramchandra Nago Patil, AIR 1977 SC 1712; Sushil Kumar v.
Rakesh Kumar, AIR 2004 SC 230; United Indian Insurance Co
Ltd. v. Samir Chandra Choudhary., (2005) 5 SCC 784; Charanjit
lal Mehra & Ors v. Kamal Saroj Mahajan & Anr., AIR 2005 SC
162765; and Udham Singh v. Ram Singh & Anr., (2007) 15 SCC
529.)
21. In Nagubai Ammal & Ors. v. B.Shama Rao & Ors., AIR
1956 SC 593, this Court held that admission made by a party is
admissible and best evidence, unless it is proved that it had been
made under a mistaken belief. While deciding the said case reliance
has been placed upon the judgment in Slatterie v. Pooley, (1840) 6
M & W 664, wherein it had been observed “What a party himself
admits to be true, may reasonably be presumed to be so.”
22. In L.I.C of India & Anr v. Ram Pal Singh Bisen, (2010) 4
SCC 491, this Court held that “failure to prove the defence does not
amount to an admission, nor does it reverse or discharge the burden
of proof of the plaintiff.”
23. In view of the above, the law on the admissions can be
summarised to the effect that admission made by a party though not
conclusive, is a decisive factor in a case unless the other party
successfully withdraws the same or proves it to be erroneous. Even if
the admission is not conclusive it may operate as an estoppel. Law
requires that an opportunity be given to the person who has made
admission under cross-examination to tender his explanation and
clarify the point on the question of admission. Failure of a party to
prove its defence does not amount to admission, nor it can reverse or
discharge the burden of proof of the plaintiff.
24. In the instant case, the Court held that not filing any
document in rebuttal of the Will dated 1.3.1929 amounts to
admission of the said Will as well as it contents. Without following
the procedure as required under Order XII CPC or admission having
not been made during the course of hearing before the Court, the
question of application of Section 58 of the Evidence Act could not
arise. Section 58 provides that a fact may not need to be proved in
any proceeding which the parties thereto agreed to admit at the
hearing or which, before the hearing, they agree to admit by any
writing under their hands or which they admitted by their pleading,
even in that case court may, in its discretion, even if such a
admission has been made by the party, require the fact admitted to
be proved otherwise than by such admission. In fact, admission by a
party may be oral or in writing. `Admissions’ are governed under
Sections 17 to 31 of the Evidence Act and such admission can be
tendered and accepted as substantive evidence. While admission for
purposes of trial may dispense with proof of a particular fact.
Section 58 deals with admissions during trial i.e. at or before the
hearing, which are known as judicial admissions or stipulations
dispense it with proof. Admissions are not conclusive proof but may
operate as estoppel against its maker. Documents are necessarily
either proved by witness or marked on admission.
In view of above, it is evident that the first appellate court
has misdirected itself so far as the issue of admission is concerned.
The finding recorded by it that appellant/defendant No.1 failed to
produce any document in rebuttal of the Will is not only wrong but
preposterous.
Order XLI Rule 27 C.P.C.
25. 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: K. Venkataramiah v. A. Seetharama
Reddy & Ors., AIR 1963 SC 1526; The Municipal Corporation of
Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008;
Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC
479; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979
SC 553).
26. 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 Wd. S. K. Mohammed & Ors. v. Mohamed
Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).
27. 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:
Lala Pancham & Ors. (supra) ].
28. 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 nonproduction 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 & Ors., AIR 1969 SC
101).
29. 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.
30. 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.
31. 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.
32. 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 comp1iance with
the requirement as to recording of reasons.
33. 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.
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