Full Judgment Text
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 222/2014 & CM APPL. 9468/2014
SHRI PAWAN KAPOOR ..... Appellant
Through: Mr. Sumit Sarna, Advocate
(M:9650941688)
versus
VINEET ARORA & ORS ..... Respondents
Through: Mr. Pramod Kumar Ahuja,
Advocate for R-1 along with R-
1 in person
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
J U D G M E N T
03.07.2023
MINI PUSHKARNA, J.
CM APPL. 9468/2014 (under Order XLI Rule 27 read with
Section 151 CPC for permission to produce additional documents)
1. The present application has been filed on behalf of the appellant
seeking permission to produce additional documents.
2. It is the case on behalf of the appellant that he has suffered huge
financial losses due to the inaction of the respondent no. 1 in not
completing the sale transaction pursuant to Agreement to Sell and
Purchase between the appellant and respondent no. 1 herein.
Therefore, by way of the present application, fresh documents in that
regard are sought to be placed on record.
3. An Agreement to Sell and Purchase dated 26.03.2005 was
entered between the appellant and respondent no. 1 wherein
Signature Not Verified
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:04.07.2023
14:59:32
RFA 222/2014 Page 1 of 14
respondent no. 1 agreed to purchase basement and ground floor
without terrace/roof rights of property no. D-6, Ranjit Nagar,
Commercial Complex, New Delhi-110008, for total consideration of
Rs. 17,50,000/- that was to be paid on or before 23.07.2005. An
amount of Rs. 4,00,000/- was paid by respondent no. 1/plaintiff
towards earnest money.
4. It is the case on behalf of the appellant that the execution of the
documents for sale of the property in question was mutually extended
by appellant and respondent no. 1 initially till 23.08.2005, which was
further extended till 07.09.2005, 22.09.2005, 07.10.2005 and
07.11.2005. However, the respondent no. 1/plaintiff in the suit,
showed inability to pay balance consideration. Therefore, appellant
sent legal notice dated 05.11.2005 to the respondent no. 1/plaintiff.
5. In response to the legal notice dated 05.11.2005, respondent
no.1/plaintiff sent legal notice dated 30.11.2005 thereby confirming
the time to execute the sale deed on 05.12.2005.
6. It is the case on behalf of the appellant that the appellant visited
the office of the Sub-Registrar on 05.12.2005 and was ready to
execute the sale deed in favour of respondent no. 1/plaintiff. However,
respondent no. 1/plaintiff did not appear before the office of the Sub-
Registrar for execution of the sale deed.
7. Subsequently, respondent no. 1/plaintiff filed a suit for recovery
of Rs. 4,00,000/- along with interest, which respondent no. 1 had paid
as earnest money towards purchase of the property in question. The
said suit of the respondent no. 1/plaintiff was decreed by the
impugned judgment and decree dated 18.03.2014, wherein decree for
Signature Not Verified
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:04.07.2023
14:59:32
RFA 222/2014 Page 2 of 14
recovery of Rs. 4,00,000/- along with 12% interest per annum was
passed in favour of respondent no. 1/plaintiff. The present appeal has
been filed challenging the aforesaid judgment and decree dated
18.03.2014 passed in favour of respondent no. 1 herein.
8. It is the case on behalf of the appellant that the respondent no.
1/plaintiff did not file any suit for specific performance of the
agreement and chose to file only suit for recovery. Thus, it is
contended that the respondent no. 1/plaintiff had no intention to
complete the transaction in terms of Agreement to Sell and Purchase
dated 26.03.2005.
9. The present application has been filed by the appellant seeking
to place on record documents to show that he suffered huge financial
losses on account of inability of the respondent no. 1/plaintiff to pay
the balance sale consideration of Rs. 13,50,000/- and execute the sale
deed.
10. It is submitted on behalf of the appellant that he was desirous to
sell the property in question to respondent no. 1/plaintiff, as he was in
need of money. The said money was needed for completion of a
Collaboration Agreement dated 15.05.2005, which the appellant had
entered into with some third person for development, construction and
completion of fresh building on his property bearing no. 25/23, East
Patel Nagar, New Delhi. Since the respondent no. 1 did not purchase
the property in question, the appellant was unable to complete the
development of the property at East Patel Nagar within the scheduled
time under the Collaboration Agreement. Thus, the cost of
construction increased drastically.
Signature Not Verified
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:04.07.2023
14:59:32
RFA 222/2014 Page 3 of 14
11. It is further contended on behalf of the appellant that since
construction had to be started in the property in question, he moved
into a rented accommodation with his family at property bearing no.
5/2, Old Rajinder Nagar, New Delhi on monthly rent of Rs. 8,900/- on
30.03.2007. Thus, along with increased cost of construction, the
appellant was also bearing the burden of rent.
12. Furthermore, the appellant had to take home loan from India
Bulls for an amount of Rs. 20,25,000/-. The appellant paid the entire
loan amount of India Bulls after taking an additional loan from Punjab
National Bank.
13. Therefore, it is submitted on behalf of the appellant that the
documents pertaining to the aforesaid would show that the appellant
suffered loss due to failure of respondent no. 1 to fulfil his terms.
Hence, the present application has been filed for taking on record the
additional documents in this regard.
14. The application is vehemently opposed on behalf of respondent
no. 1. It is submitted that the appellant herein had moved an
application before the learned Trial Court under Order XVIII Rule 17
read with Section 151 CPC with prayer to produce documents and to
prove them by further evidence, much after the conclusion of the
plaintiff evidence. The said application of the appellant was allowed
by the learned Trial Court vide its order dated 03.12.2012. At that
time, the documents which are subject matter of the present
application were very much in knowledge and possession of the
appellant herein. However, the said documents were not filed before
the learned Trial Court.
Signature Not Verified
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:04.07.2023
14:59:32
RFA 222/2014 Page 4 of 14
15. It is further contended on behalf of respondent no. 1 that he had
already arranged the required money and was always ready to make
payment to the appellant for execution of the sale deed in his favour.
However, it was the appellant who did not execute the relevant
documents in his favour.
16. Having heard the parties, this Court is required to consider
whether the appellant can be allowed to adduce additional evidence in
the form of filing of fresh documents at this stage.
17. The provision for production of additional evidence in
Appellate Court is contained under Order 41 Rule 27 CPC. The said
provision enables the Appellate Court to take additional evidence in
exceptional circumstances. However, the liberty to produce additional
evidence at appellate stage cannot be sought as a matter of right. Thus,
1
in the case of Union of India Vs. Ibrahim Uddin And Another ,
Supreme Court has held as follows:-
“ 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
1
(2012) 8 SCC 148
Signature Not Verified
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:04.07.2023
14:59:32
RFA 222/2014 Page 5 of 14
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] .)
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] .)
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
Signature Not Verified
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:04.07.2023
14:59:32
RFA 222/2014 Page 6 of 14
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] .)
..........
48. To sum up on the issue, it may be held 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 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.”
18. The present case pertains to a suit for recovery that was filed by
the respondent no. 1 as plaintiff in the suit. Now, by way of the
present application, the appellant herein, who was defendant no. 2 in
the suit, has sought to place on record fresh documents in order to
show that the appellant had suffered huge financial losses on account
of respondent no. 1/plaintiff not paying the balance sale consideration
for execution of the sale deed. The plea sought to be raised on behalf
Signature Not Verified
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:04.07.2023
14:59:32
RFA 222/2014 Page 7 of 14
of the appellant is completely extraneous to the issue in hand. No such
plea was ever raised by the appellant before the learned Trial Court. In
his written statement before the Trial Court, the appellant as defendant
no. 2 had simply stated that the appellant had suffered huge losses and
reserved his right to claim damages. However, the facts now sought to
be averred before this Court with respect to any Collaboration
Agreement having been entered by the appellant or other loss suffered
due to moving in a rented accommodation, were not pleaded before
the Trial Court. Para 25 of the written statement filed on behalf of
appellant before the learned Trial Court as defendant no. 2 is
reproduced as under:-
“25. That the contents of para no.25 of the plaint are
wrong and denied and subject to strict proof.
On assurance from the plaintiff, the defendant no. 2
reached the office of Sub-registrar on 05-12-2005 for
execution of the agreement at 10:00 A.M. alongwith
defendant no.3 and waited upto 1:00 P.M. but the plaintiff
did not come to pay the balance amount of Rs.13,50,000/-
to the answering defendant. Further the plaintiff could not
be contacted on his address not at mobile phone. In order
to safeguard his interest, the defendant no. 2 got recorded
his presence in the office of Sub-registrar, Delhi on 05-12-
2005 by way of registration form no. 3, and also sworn an
affidavit in this regard which was duly attested by the
notary public on the said date. This shows the bonafide of
the answering defendant who was duped by the plaintiff
and due to the malafide intentions of the plaintiff the
answering defendant suffered huge losses and reserves his
right U/O 2 Rule 2 to claim, damages from the plaintiff for
which the answering defendant seeks leave of this Hon’ble
Court.”
19. Besides, in the application, the appellant has specifically stated
Signature Not Verified
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:04.07.2023
14:59:32
RFA 222/2014 Page 8 of 14
that he intended to file separate suit for damages suffered by him,
however, the same was not filed by his earlier counsel. Therefore, the
appellant is clearly in the knowledge of the fact that his claim for
damages, if any, is a separate cause of action which the appellant was
required to establish by leading evidence in that regard. However, no
such suit for damages was filed by the appellant. It would be relevant
to refer to paras 10 and 11 of the present application, which are
reproduced as under:-
“10. Appellant specifically stated in para 25 of the written
statement that he will file separate suit for damages
suffered by him.
11. Appellant had provided relevant information to his
previous Counsel and instructed him to file the claim for
damages, however, the same was not filed by earlier
Counsel and the Appellant was always informed that the
same is also listed with the suit of the Respondent No. l.
Appellant engaged Counsel and was vigilant enough
therefore the Appellant be not penalized for the acts of his
Counsel who has expired and Appellant shall suffer
irreparable loss and injury if the documents filed with this
appeal are not looked into in this appeal.”
20. Moreover, perusal of the Trial Court Record shows that vide
order dated 03.12.2012, the learned Trial Court had allowed
application on behalf of appellant herein for filing of certain
documents, which as per him were important and essential for proper
adjudication of the case. The said application was filed on behalf of
appellant as defendant no. 2 before the learned Trial Court when the
evidence on behalf of defendants was going on and DW-1 had already
been examined and discharged. Further, the appellant had sought re-
Signature Not Verified
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:04.07.2023
14:59:32
RFA 222/2014 Page 9 of 14
calling of DW-2 for tendering fresh documents in his additional
evidence. Thus, by order dated 03.12.2012, the learned Trial Court
allowed the application of the appellant herein as defendant no. 2 for
production of new documents and for re-calling DW-2 for tendering
the fresh documents as evidence. Order dated 03.12.2012 passed by
the learned Trial Court is reproduced as below:-
“
Signature Not Verified
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:04.07.2023
14:59:32
RFA 222/2014 Page 10 of 14
Signature Not Verified
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:04.07.2023
14:59:32
RFA 222/2014 Page 11 of 14
”
21. Perusal of the aforesaid shows that appellant had taken an
opportunity before the learned Trial Court for filing additional
documents at the stage of evidence. It is not the case on behalf of the
appellant that the additional documents now sought to be adduced viz.
the Collaboration Agreement dated 15.05.2005 or the Rent Agreement
dated 30.03.2007, were sought to be produced as evidence before the
learned Trial Court and refused by the said Court. It is also not the
case on behalf of the appellant that the aforesaid additional documents
were not within his knowledge or could not be produced before the
learned Trial Court even after exercise of due diligence. Further, the
fresh documents as sought to be produced on behalf of the appellant
are not material documents for the purposes of enabling this Court to
pronounce judgment.
22. Furthermore, fresh documents cannot be allowed to be adduced
solely for the purposes of patching up the weakness of the evidence of
the unsuccessful party before the Trial Court, as held by Supreme
Signature Not Verified
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:04.07.2023
14:59:32
RFA 222/2014 Page 12 of 14
2
Court in the case of A. Andisamy Chettiar Vs. A. Subburaj Chettiar ,
wherein it has been held as follows:-
“ 13. In K.R. Mohan Reddy v. Net Work Inc. [K.R. Mohan
Reddy v. Net Work Inc., (2007) 14 SCC 257] this Court
has held as under: (SCC p. 261, para 19)
“19. The appellate court should not pass an order
so as to patch up the weakness of the evidence of
the unsuccessful party before the trial court, but it
will be different if the court itself requires the
evidence to do justice between the parties. The
ability to pronounce judgment is to be understood
as the ability to pronounce judgment satisfactorily
to the mind of the court. But mere difficulty is not
sufficient to issue such direction.”
14. In North Eastern Railway Admn. v. Bhagwan
Das [North Eastern Railway Admn. v. Bhagwan Das,
(2008) 8 SCC 511] this Court observed thus: (SCC pp.
515-16, para 13)
“13. Though the general rule is that ordinarily the
appellate court should not travel outside the
record of the lower court and additional evidence,
whether oral or documentary is not admitted but
Section 107 CPC, which carves out an exception
to the general rule, enables an appellate court to
take additional evidence or to require such
evidence to be taken subject to such conditions
and limitations as may be prescribed. These
conditions are prescribed under Order 41 Rule 27
CPC. Nevertheless, the additional evidence can
be admitted only when the circumstances as
stipulated in the said Rule are found to exist.”
15. In N.Kamalam v. Ayyasamy [N.Kamalam v. Ayyasamy,
(2001) 7 SCC 503] this Court, interpreting Rule 27 of
Order 41 of the Code, has observed in para 19 as under:
(SCC p. 514)
2
(2 015 )17 SCC 713
Signature Not Verified
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:04.07.2023
14:59:32
RFA 222/2014 Page 13 of 14
“19. … the provisions of Order 41 Rule 27 have
not been engrafted in the Code so as to patch up
the weak points in the case and to fill up the
omission in the court of appeal— it does not
authorise any lacunae or gaps in the evidence to
be filled up. The authority and jurisdiction as
conferred on to the appellate court to let in fresh
evidence is restricted to the purpose of
pronouncement of judgment in a particular
way.””
23. Considering the detailed discussion hereinabove, the present
application is found to be devoid of any merits. The same is
accordingly dismissed.
RFA 222/2014
24. List before the Roster Bench on 22.08.2023, the date already
fixed.
(MINI PUSHKARNA)
JUDGE
JULY 03, 2023
c
Signature Not Verified
Digitally Signed By:CHARU
CHAUDHARY
Signing Date:04.07.2023
14:59:32
RFA 222/2014 Page 14 of 14