[ad_1]
Uttarakhand High Court
July vs Moti Mahal Deluxe A Partnership Firm on 11 July, 2025
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
2025:UHC:6009
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition Misc. Single No. 716 of 2025
11 July, 2025
Hena Hasan Desai ... Petitioner
Versus
Moti Mahal Deluxe A Partnership Firm ... Respondent
----------------------------------------------------------------------
Presence:-
Ms. Aastha Mehta & Mr. Pramod Bailwal, learned counsel for the
petitioner
----------------------------------------------------------------------
(Hon'ble Manoj Kumar Tiwari, J.)
JUDGMENT
1. By this petition filed under Article 227 of the
Constitution, petitioner has challenged order dated
15.07.2023 passed by 4th Additional District Judge,
Dehrdun in SCC Revision No. 1 of 2022. By the said
order, application filed by petitioner, for taking
additional evidence on record in a revision filed under
Section 25 of the Provincial Small Cause Courts Act,
1887, was rejected.
2. It transpires that petitioner’s mother filed an
eviction suit against the respondent as Mutwalli by
contending that the suit property belongs to a Wakf.
During pendency of the suit, petitioner’s mother passed
away on 12.05.2021 and petitioner was substituted as
plaintiff in the suit. The suit was dismissed by learned
Judge, Small Cause Court, Dehradun vide judgment
dated 02.04.2022, inter alia on the ground that an
unregistered Wakf cannot maintain a suit in view of
Section 87 of The Wakf Act, 1995.
1
2025:UHC:6009
3. Petitioner filed a revision under Section 25 of
the Provincial Small Cause Courts Act, 1887 challenging
the judgment rendered by learned trial court, which is
pending. Before the revisonal court, petitioner moved
an application under Section 151 CPC for taking
certified copy of Wakf Register on record to show that
Wakf in question is a registered Wakf. Learned
revisional court rejected the said application vide order
dated 15.07.2023. Thus, feeling aggrieved, petitioner
has approached this Court.
4. Heard learned counsel for the petitioner and
perused the record.
5. Order 41 Rule 27 CPC is extracted below for
ready reference:-
“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
(aa) 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.”
2
2025:UHC:6009
6. Perusal of Order 41 Rule 27 CPC reveals that
it enables appellate court to take additional evidence in
exceptional circumstances. The general principle is that
appellate court should not travel beyond the record of
the trial court and cannot consider any evidence, which
was not placed before the trial court. Hon’ble Supreme
Court has held that the appellate court may permit
additional evidence only and only if the conditions laid
down in Order 41 Rule 27 CPC are found to exist. The
parties are not entitled, as of right, to the admission of
such evidence. The said 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 discretion is only a judicial
discretion circumscribed by the limitation specified in
the rule itself. Hon’ble Supreme Court in the case of
Union of India vs Ibrahim Uddin & another, reported in
(2012) 8 SCC 148, has held as under:-
“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] .)3
2025:UHC:6009
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.”
7. In the case of Mahavir Singh & others vs
Naresh Chandra & another, reported in AIR 2001 SC
134, Hon’ble Court has held as under:-
“5. Before we proceed further we would like to refer to
the scope of an application under Order 41 Rule 27 CPC.
Section 107 CPC enables an appellate court to take
additional evidence or to require such other evidence to be
taken subject to such conditions and limitations as are
prescribed under Order 41 Rule 27 CPC. The principle to be
observed ordinarily is that the appellate court should not
travel outside the record of the lower court and cannot take
evidence on appeal. However, Section 107(d) CPC is an
exception to the general rule, and additional evidence can
be taken only when the conditions and limitations laid down4
2025:UHC:6009
in the said rule are found to exist. The court is not bound
under the circumstances mentioned under the rule to permit
additional evidence and the parties are not entitled, as of
right, to the admission of such evidence and the matter is
entirely in the discretion of the court, which is, of course, to
be exercised judiciously and sparingly. The scope of Order
41 Rule 27 CPC was examined by the Privy Council
in Kessowji Issur v. Great Indian Peninsula Rly. Co. [ILR
(1907) 31 Bom 381 : 9 Bom LR 671 : (1906-07) 34 IA 115
(followed in AIR 1931 PC 143)] in which it was laid down
clearly that this rule alone can be looked to for taking
additional evidence and that the court has no jurisdiction to
admit such evidence in cases where this rule does not
apply. Order 41 Rule 27 CPC envisages certain
circumstances when additional evidence can be adduced:
(i) the court from whose decree the appeal is preferred
has refused to admit evidence which ought to have been
admitted, or
(ii) 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
(iii) 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.
In the present case, it is not the case of either party
that the first situation is attracted. So far as the second
circumstance noticed above is concerned, question of
exercise of due diligence would not arise because the
scientific equipment concerned from which examination is
sought to be made itself was not in existence at the time of
trial and so that clause is also not attracted. In the third
circumstance, the appellate court may require any
document to be produced or any witness to be examined to
enable it to pronounce the judgment, or for any other
substantial cause. The expression “to enable it to pronounce
judgment” has been the subject of several decisions
including Syed Abdul Khader v. Rami Reddy [(1979) 2 SCC
601 : AIR 1979 SC 553] wherein it was held that 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 the court delivering it.
It is only a lacuna in the evidence that will empower the
court to admit additional evidence (see: Municipal Corpn. of
Greater Bombay v. Lala Pancham [AIR 1965 SC 1008 :
(1965) 1 SCR 542] ). But a mere difficulty in coming to a
decision is not sufficient for admission of evidence under
this rule. The words “or for any other substantial cause”
must be read with the word “requires”, which is set out at
5
2025:UHC:6009
the commencement of the provision, so that it is only
where, for any other substantial cause, the appellate court
requires additional evidence, that this rule would apply as
noticed by the Privy Council in Kessowji Issur v. G.I.P. Rly.
[ILR (1907) 31 Bom 381 : 9 Bom LR 671 : (1906-07) 34 IA
115 (followed in AIR 1931 PC 143)] It is under these
circumstances such a power could be exercised. Therefore,
when the first appellate court did not find the necessity to
allow the application, we fail to understand as to how the
High Court could, in exercise of its power under Section 115
CPC, have interfered with such an order, particularly when
the whole appeal is not before the Court. It is only in the
circumstances when the appellate court requires such
evidence to pronounce the judgment the necessity to
adduce additional evidence would arise and not in any other
circumstances. When the first appellate court passed the
order on the application filed under Order 41 Rule 27 CPC,
the whole appeal was before it and if the first appellate
court is satisfied that additional evidence was not required,
we fail to understand as to how the High Court could
interfere with such an order under Section 115 CPC. In this
regard, we may notice the decision of this Court in Gurdev
Singh v. Mehnga Ram [(1997) 6 SCC 507] in which the
scope of exercise of power under Section 115 CPC on an
order passed in an application filed under Order 41 Rule 27
CPC was considered. When this decision was cited before
the High Court, the same was brushed aside by stating that
the principle stated therein is not applicable to the facts of
this case. We do not think so. The High Court ought not to
have interfered with such an order.”
8. Learned revisional court has passed a
detailed order and the reasons assigned for rejecting
petitioner’s application cannot be faulted. Revisional
court has relied upon a judgment rendered in the case
of Kailash Chandra Jain vs Jagdish Chandra Nagpal &
another, reported in 1998 (2) AWC 847, in which it
was held that additional evidence subsequently
discovered by a party cannot be admitted in a revision
to demonstrate that the finding given by learned Judge,
Small Cause Court was erroneous. Learned revisonal
court also held that the scope of power in a revision
filed under Section 25 of the Provincial Small Cause
Courts Act, is not as wide as in a first appeal and
findings on pure questions of fact are normally not
6
2025:UHC:6009
interfered with by the revisional court. It was further
held that since the factum of registration of Wakf
cannot be said to be not within knowledge of the
plaintiff and there is no explanation given, as to why
the registration certificate was not placed before the
trial court, therefore, the registration certificate cannot
be taken on record at the revisional stage.
9. This Court does not find any reason to
interfere with the rejection order passed by learned
revisonal court. The suit was filed in 2010. Section 87
of the Wakf Act, 1995, as it stood on the date of filing
of suit, is extracted below:-
“87. Bar to the enforcement of right on behalf of
unregistered wakfs (1) Notwithstanding anything
contained in any other law for the time being in force, no
suit, appeal or other legal proceeding for the enforcement of
any right on behalf of any wakf which has not been
registered in accordance with the provisions of this Act, shall
be instituted or commenced or heard, tried or decided by
any Court after the commencement of this Act, or where any
such suit, appeal or other legal proceeding had been
instituted or commenced before such commencement, no
such suit, appeal or other legal proceeding shall be
continued, heard, tried or decided by any Court after such
commencement unless such wakf has been registered, in
accordance with the provisions of this Act.
(2) The provisions of sub-section (1) shall apply as far as
may be, to the claim for set-off or any other claim made on
behalf of any wakf which has not been registered in
accordance with the provisions of this Act.”
10. Although, Section 87 of the Wakf Act was
deleted from the Statute Book w.e.f. 01.11.2013, by
Wakf (Amendment) Act, 2013, however, that
amendment will not have retrospective application, but
the same will apply prospectively. The suit, filed by
petitioner, was dismissed inter alia on the ground that
Wakf in question was not registered. Petitioner is trying
to cure the defect, which was one of the reasons for
7
2025:UHC:6009
dismissal of the suit. The case of the petitioner does
not fall under the contingencies mentioned in Order 41
Rule 27 CPC.
11. Hon’ble Supreme Court in the case of Union
of India vs Ibrahim Uddin & another, reported in (2012)
8 SCC 148, held that “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”
12. In view of the legal position as discussed
above, any interference with the impugned order would
be unwarranted.
13. Accordingly, the writ petition fails and is
dismissed.
(Manoj Kumar Tiwari, J.)
11.07.2025
Aswal
NITI RAJ SINGH
Digitally signed by NITI RAJ SINGH ASWAL
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF
UTTARAKHAND,
2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802a3a08b08d1369ASWAL
512ea30f3, postalCode=263001, st=UTTARAKHAND,
serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C22DACF4F4610C1
FE58A58531726FBB0, cn=NITI RAJ SINGH ASWAL
Date: 2025.07.16 07:13:24 -07’00’8
[ad_2]
Source link