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GILL & CO. V. BIMLA KUMARI JOLLY 1986 RLR 370 (J.D. JAIN, J)

GILL & CO. V. BIMLA KUMARI JOLLY 1986 RLR 370 (J.D. JAIN, J)

 

FACTS

  • Some property were let to appellant 1 (tenant) at the rate of Rs. 750 per month in 1966. Appellant 2 was employed with appellant 1 as Manager and he was put into occupation of the same for residence in his capacity as Manager.
  • On 12th February 1975, the respondent landlady moved an application for eviction of the appellants on the grounds among others that appellant had sub-let, assigned or parted with possession of the property in favour of appellant 2 without the consent of the respondent.
  • Cause of action for eviction on such ground allegedly arose because the service of appellant 2 was terminated but he was allowed to continue in occupation of the property unauthorisedly by appellant 1.
  • Additional Rent Controller, Delhi made an eviction order only on the ground that appellant 1 had parted with possession of the premises in question in favour of appellant 2 without the consent of the respondent.
  • The appellant 1 made an application under Order XLI Rule 27 read with Section 151 of the CPC for permission to produce some the bank passbooks and statements of account. The rent control tribunal (on first appeal) disallowed the application.
  • The appellant unsuccessfully preferred an appeal to the rent control tribunal.
  • Hence this second appeal.

 

ISSUE

  • Whether the Tribunal was justified in rejecting the prayer of the appellants for producing the additional documents.

 

HELD

The appeal being devoid of any merit was dismissed with costs.

  • The general rule is that an appellate court shall decide an appeal on the evidence led by the parties before the lower court and shall not admit additional evidence. However, Order XLI Rule 27 empowers the Appellate Court to admit additional evidence in appeal under certain circumstances specified in that.
  • The discretion given to the Appellate Court to receive and admit additional evidence is not arbitrary but is judicial one circumscribed by the limitations specified in Rule 27 itself.
  • In Parsotim Thakur v. Lal Mohar Thakur, AIR 1931 PC 143 the court observed that the provisions of Section 107 as elucidated by Order XLI Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak pans of his case and fill up omissions in the Court of appeal. The additional evidence can be admitted but limit must be the court that requires it. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.
  • In K Venkataramaih v A Seetharamana Reddy, the SC held that court can consider admitting additional evidence in the interest of justice to fill up gaps so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under Rule 27 (1) (b) of the Code. Such requirement is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence.
  • The new evidence sought to be adduced should have direct and important bearing on the main issue in the case. The court to satisfy itself looked into the additional evidence sought to be produced and noted that there is absolutely no justification for permitting the additional evidence, which was admittedly in the possession of the appellants, on the flimsy ground that they did not realise their importance till adverse finding was given by the trial Court. The evidence already on record is quite sufficient for recording a proper and satisfactory judgment.
  • The basic idea is that in case the Court feels that the evidence already on record suffers from such inherent obscurity or ambiguity that it should be cleared, if possible, by production of additional evidence, it may require production of such evidence
  • In The Municipal Corporation of Greater Mumbai v Lala Pancham, AIR 1965 SC 1008 the court observed that the 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.
  • The new evidence sough to be adduced should have direct and important bearing on the main issue in the case.
  • Appellant 1 had decided to surrender vacant possession owing to difference with the appellant 2, but later on backtracked. Initial presumption of parting with possession of the premise in favour of appellant 2 was still unrebutted.
  • Section 39(2) of the Delhi Rent Control Act debars an appeal from an order made by the Tribunal unless it involves some substantial question of law. The jurisdiction of the High Court in second appeal is confined to determination of substantial question of law and not to reverse the findings of fact. Hence, the High Court in second appeal cannot re-appreciate the evidence and interfere with the findings of fact reached by the lower appellant Court, unless it can be shown that there was an error of law in arriving at it or that it was based on no evidence at all or was arbitrary, unreasonable or perverse.