Delhi High Court
Jaswant Singh (D) Through Lrs And Ors vs Santosh Kumari Sharma & Ors on 7 August, 2025
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 24.07.2025
Judgment delivered on: 07.08.2025
+ CM(M) 601/2025 & CM APPL. 18943/2025 & CM APPL.
18944/2025 & CM APPL. 18945/2025
JASWANT SINGH (D) THROUGH LRS AND ORS .....Petitioners
versus
SANTOSH KUMARI SHARMA & ORS. .....Respondents
Memo of Appearance
For the Petitioner: Mr. Shekhar Prit Jha and Ms. Tamanna Swami,
Advocates
For the Respondent: Mr. Anuj Aggarwala and Mr. Manav Mitra,
Advocates
CORAM:
HON'BLE MR. JUSTICE MANOJ JAIN
JUDGMENT
MANOJ JAIN, J
1. Petitioners are aggrieved by order dated 29.01.2025 whereby learned
First Appellate Court has dismissed their application moved under Order
XLI Rule 27 CPC.
2. The suit in question was filed way back in the year 1985.
3. Plaintiff Ms. Santosh Kumar Sharma was, merely, seeking a sum of
Rs. 720/- from the concerned tenants which was towards the arrears of rent
for the previous three years, the rate of rent being Rs. 20/- per month only.
4. According to her specific case, she had let out the suit premises to
defendant No.1-Dhani Ram and Moti Ram (since deceased). Since Mr. Moti
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Ram had died prior to the institution of suit, her legal heirs were impleaded
as defendant Nos. 2 to 8 in the suit.
5. During the pendency of the abovesaid suit, an application under Order
I Rule 10 CPC had been moved.
6. Such application was allowed and, resultantly, defendant Nos. 9 to 11
were also arrayed as defendants.
7. These defendants are petitioners herein.
8. As already noticed above, the suit was merely seeking recovery of
rent but according to such subsequently impleaded defendants, the plaintiff
had no right or title or interest in the suit premises and that it belonged to
Joint Hindu Family of which one Chaudhary Nathu Singh was Karta. They
also denied that there was any relationship of landlord and tenant between
plaintiff and defendant Nos. 1 to 8 and according to them, the plaintiff had
not filed any title document and there was no partition of such Joint Hindu
Family, during the lifetime of the Chaudhary Nathu Singh.
9. Evidently, on the basis of such stand taken by the newly impleaded
defendants, the Court, even, framed issues to the effect whether the plaintiff
was owner of the suit property or not and whether the defendant Nos. 9 to 11
were the co-owners of the suit property or not.
10. As per judgment dated 26.02.2018, all such issues have been
answered in favour of the plaintiff and she has been held to be the owner and
landlord of the property in question and the tenancy has also been held to be
existing in her favour. Thus, discarding the stand of defendant Nos. 9 to 11,
the suit has been decreed against them.
11. Such judgment is under appeal and during the pendency of the
abovesaid appeal, the appellants (defendant Nos. 9 to 11/their successors-in-
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interest) moved the abovesaid application under Order XLI Rule 27 CPC
praying therein to place on record certified copy of one judgment dated
02.07.2014 passed by this Court in FAO No. 279/2007 titled as Sh. Narain
Singh Etc. versus The State & Ors.
12. Learned First Appellate Court has denied such request while
holding that the same was not falling within the confines of Order XLI
Rule 27 CPC.
13. Such order is under challenge.
14. Undoubtedly, the judgment can always be cited as precedent but in
the case in hand, the endeavour of the petitioners/appellants is to treat such
judgment as a „piece of evidence‟.
15. Let us first see the relevancy of the abovesaid judgment in context of
the present case.
16. As already noted above, the case of the plaintiff was to the effect that
she was the owner of the suit premises and was merely seeking rent from her
tenants.
17. Plaintiff also examined her husband Mr. Jagdish Chand Sharma as
PW-4 and according to the testimony of her husband, the owner of the suit
premises was in fact, the same Chaudhary Nathu Singh who expired on
02.08.1980.
18. According to plaintiff and her husband, Chaudhary Nathu Singh sold
the suit premises to plaintiff on 19.01.1980 and executed „Agreement to
Sell‟, „Will‟, „GPA‟ and „Receipt‟ towards such sale-transaction.
19. Thus, the plaintiff is also tracing her title through Chaudhary Nathu
Singh.
20. According to appellants (defendant Nos. 9 to 11), the property
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belonged to Joint Hindu Family of which Chaudhary Nathu Singh was
Karta and they claimed themselves to be his legal heirs.
21. According to them, the husband of the plaintiff was Munim
(accountant) of Chaudhary Nathu Singh and the documents, on which the
plaintiff was relying upon in order to assert her ownership, had been
obtained by way of fraud. Though the signatures of Chaudhary Nathu Singh
on such documents were not disputed but according to them, these were
obtained by way of fraud and, therefore, these had no legal validity.
22. The petitioners contend that the abovesaid judgment is very
significant and has direct bearing with respect to the controversy in hand.
23. The abovesaid judgment dated 02.07.2014 was rendered by this Court
while dealing with an appeal, challenging order passed by the Court of
learned Additional District Judge, Delhi whereby “Letters of
Administration” had been granted in favour of Mr. Jagdish Chand (husband
of plaintiff herein) in respect of one earlier Will dated 22.10.1993, purported
to have been made by Chaudhary Nathu Singh. This Court while allowing
the abovesaid appeal, had dismissed the Probate Petition and held that said
Will dated 22.10.1993 did not stand proved.
24. Undoubtedly, Will in the aforesaid case was executed by the same
Chaudhary Nathu Singh. It pertained to one property situated at Sukhdev
Nagar, Kotla Mubarakpur, New Delhi and as per the recital appearing in the
Will, on account of love and affection shown by Mr. Jagdish Chandra
Sharma, part of said property was bequeathed in his favour. The objections
in that case had been filed by sons and daughters of the Testator and,
according to them, relationship between Mr. Jagdish Chandra Sharma and
testator were strained and it was not expected that he would execute a Will
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in his favour. According to them, Will was either fabricated or manipulated.
This Court went on to hold that Will had not been proved and, therefore, no
probate or Letters of Administration could be granted under the law. It also
recorded about that the testimony of the attesting witness who did not even
recollect the execution of Will or that whether the testator had put his
signatures on the Will in his presence.
25. However, merely because with respect to one another Will left behind
by the same testator, probate was not granted, would not ipso facto, mean
anything substantial in the context of the present case. The case in hand does
not relate to grant of probate and Letters of Administration either.
26. Moreover, the property in the present case is different though situated
in the same area.
27. The beneficiaries under the two Wills are also different though related
inter se.
28. Importantly, there is a huge time-gap between the two Wills.
29. The Will, which was subject matter of the Probate Petition, was
executed on 22.10.1993 whereas the Will in question is of 19.01.1980.
30. In such a situation, the request to refer to the judgment of this Court in
the aforesaid FAO, as additional evidence, has no real force and would not
lead to any conclusive inference, either way. Of course, judgment given in
probate matter is a judgment in rem but that does not mean that such
judgment can be permitted to be used as additional evidence, at such a
belated stage.
31. The judgment in FAO is of the year 2014 and the suit in question was
adjudicated by the learned Trial Court in the year 2018. It is not expected
that the legal representatives of Chaudhary Nathu Singh would not be aware
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about the aforesaid probate matter in which, rather, objections had been filed
by their predecessors-in-interest and, therefore, their such belated
endeavour, seeking permission to rely upon the aforesaid judgment as
additional evidence under Order XLI Rule 27 CPC, does not seem to be
sustainable.
32. As per bare provision, additional evidence under Order 41 Rule 27
CPC can be permitted to be adduced on existence of one of the following: –
1) When the trial Court has refused to admit the evidence
which ought to have been admitted.
2) That the evidence sought to be adduced by the party was not
available to it, despite exercise of due diligence.
3) Additional evidence is necessary in order to enable the
Appellate Court to pronounce the judgment or any other
substantial cause of similar nature.
33. Here, the permission is being sought citing that the above judgment
was not in the knowledge of the appellants and, therefore, despite due
diligence, best efforts and bonafide intention, such additional document
could not be filed at trial stage. Also, that it would enable the court to reach
just decision as said judgment is judgment in rem and, therefore, it attains
binding character and becomes conclusive and unrebuttable. The petitioners,
to buttress the same, rely upon on Vidya Drolia v. Durga Trading Corpn.:
(2021) 2 SCC 1. It is argued that such judgment is conclusive against all
persons whether parties, privies or strangers to the matter and binds all of
them claiming an interest in the property, inconsistent with the judgment,
even though it might have been pronounced in their absence.
34. Though there cannot be any debate with the settled legal proposition,
it becomes very much evident that the facts of the two cases are totally
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dissimilar and since the subject property of probate petition, which was
eventually dismissed by this Court on 02.07.2014 is different, it cannot be
ipso-facto contended that said judgment would be robotically applicable to
the case in hand, rendering the title documents in favour of plaintiff, null and
void. As noted already, the beneficiary in both the cases are different and the
date of execution of documents is also different and, therefore, petitioners
cannot, as a matter of right, claim benefit of Section 41 of Indian Evidence
Act, 1872 (Corresponding provision being, Section 35 of Bharatiya Sakshya
Adhiniyam, 2023).
35. The character of the husband of plaintiff, merely on the strength of
abovesaid judgment dated 02.07.2014 cannot be castigated and he cannot be,
automatically, labelled as a person of doubtful integrity. Merely because in
one case, the execution of documents was not believed would not mean that
in another case pertaining to another set of documents, the eventual outcome
would be the same, particularly when there is huge time-gap between the
execution of two sets of documents.
36. The other intricate aspects of the case need not be pondered upon, lest
it may prejudice the mind of Learned First Appellate Court.
37. Fact remains that, at best, petitioner can rely upon the abovesaid
judgment “as a precedent” but cannot use the same as an additional piece of
evidence. The abovesaid judgment was pronounced when the suit in
question was pending trial and if petitioners were of the view that it had
some relevancy, they should have demonstrated due diligence by placing the
same on record, at the earliest available opportunity.
38. Invocation of Order XLI Rule 27 CPC, thus, does not seem to be
appropriate from any angle. Reference be made to Union of India v. Ibrahim
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Uddin and Another: 2012 SCC OnLine SC 528 where Hon‟ble Supreme
Court has observed that an 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 conditions 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 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. It
also observed as under:-
“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 41 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, the provision does not apply, when on the
basis of the 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 [AIR 1963 SC 1526], Municipal
Corpn. of Greater Bombay v. Lala Pancham [AIR 1965 SC 1008], Soonda
Ram v. Rameshwarlal [(1975) 3 SCC 698 : AIR 1975 SC 479] and Syed
Abdul Khader v. Rami Reddy [(1979) 2 SCC 601 : AIR 1979 SC 553] )”
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39. Thus, the discretion is to be used sparingly, albeit, judiciously.
40. Moreover, the exercise of jurisdiction under Article 227 of
Constitution of India is a constricted one and such power has to be invoked
sparingly when the finding is absolutely perverse. While exercising any such
power, the High Court is not required to substitute its own decision on facts
and conclusion and, therefore, there does not seem to be any compelling
reason to interfere with the impugned order.
41. The discretionary exercise of power of learned First Appellate Court
does not seem to be an arbitrary one and, resultantly, the present petition is
hereby dismissed.
42. However, petitioners would be at liberty to cite the aforesaid
judgment as a case law and it would be entirely upto the learned Trial Court
to consider the same without being influenced by any of the observations
appearing in the present order.
(MANOJ JAIN)
JUDGE
AUGUST 7, 2025/sw
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