Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma, J., allowed the petition and quashed the impugned order dated 17-07-2017.

 The facts of the case are such that husband filed divorce petition under Section 13 of the Hindu Marriage Act, against the wife on the ground of cruelty. During the pendency of aforesaid divorce petition, husband filed an application under Order 18 Rule 17-A read with Section 151 CPC seeking therein permission of the Court to allow him to lead additional evidence, which may be necessary and just for the proper adjudication of the case. It was averred that he is in possession of original recording of the conversation, which is intended to be adduced on record by way of additional evidence would show that father of the wife has openly threatened him as well as his family members. The said application was allowed. Being aggrieved and dissatisfied with the order, petitioner (wife) approached the Court in the instant proceedings, praying therein to set-aside the order.

The Court observed that that by way of additional evidence husband intended to prove factum with regard to threats extended to him and his family members by the father of the wife, which fact was very much in his knowledge at the time of filing replication. Careful perusal of cross-examination conducted upon the wife witnesses, nowhere reveals that suggestion, if any, was ever put to the wife with regard to existence of audio CD or recording of the conversation qua the meeting held at Shimla. It was further observed that wife in his examination-in-chief or cross examination has admitted the factum with regard to meeting held at Shimla, but there appears to be no attempt on the part of the husband to put a suggestion to wife that during meeting at Shimla he and his family members were threatened and he was in possession of the CD, which omission on the part of the husband certainly compels the Court to agree that application having been filed by the husband at the time of arguments is an afterthought merely to fill up the lacuna.

The Court observed that basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, once the Court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the Court. The power under Rule 17 cannot be stretched any further, however said power cannot be invoked to fill up omission in the evidence already led by a witness.

The Court held “since factum with regard to existence of audio CD sought to be adduced on record as additional evidence was very much in the knowledge of the husband before commencement of trial and at the time of leading evidence, has no hesitation to conclude that application filed under Order 18 Rule 17-A CPC is nothing, but an attempt to protract the trial and as such, same deserves to be dismissed.”[Dr Honey Johar v. Ramnik Singh Johar, 2018 SCC OnLine HP 3295, decided on 21-12-2018]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For the Petitioner: Mr. Anuj Nag, Advocate.

For the Respondent: Mr. R.G.S. Saini, Advocate

Case BriefsHigh Courts

Orissa High Court: The Bench of Dr A.K. Rath, J. allowed the application filed for challenging the order of the District Court whereunder the appellate court rejected the application of the petitioner-appellant under Order 41 Rule 27 CPC to admit five documents as additional evidence.

The facts of the case are that plaintiff-petitioner instituted a Civil Suit praying for damages. The suit was dismissed. The application under Order 41 Rule 27 CPC to admit five documents as additional evidence was filed during pendency of the appeal. The respondents-opposite parties objected to the same. The appellate court rejected the application. Mr. Prasanna Kumar Parhi, counsel for the petitioner submitted that the appellate court was not justified in rejecting the said application before hearing of the appeal.

The Court relying on the case of Sankar Pradhan v. Premananda Pradhan, 2015 (II) CLR 583 held that 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.” The petition was thus allowed. [Gopal Krushna Panda v. Utkal Grameen Bank, 2019 SCC OnLine Ori 34, Order dated 28-01-2019]

Case BriefsSupreme Court

Supreme Court: In an appeal filed against the decision of the Allahabad High Court where it had rejected the application under Section 391 Cr.P.C on the ground that the additional evidence was filed with malafide intentions for delaying the decision of the appeal, the bench of Ashok Bhushan and KM Joseph, JJ said:

“When Statute grants right to appeal to an accused, he has right to take all steps and take benefit of all powers of the Appellate Court in the ends of the justice. In a criminal case Appellate Court has to consider as to whether conviction of the accused is sustainable or the appellant has made out a case for acquittal. The endeavour of all Courts has to reach to truth and justice.”

Present is the case where the appellant was convicted by a trail court on 07.10.2013 for cheating the complainant with regard to sale of agricultural land of the trust. He had produced a photocopy of the Trust Deed before the trial court, however, it was not proved.  On 08.10.2013, he appealed before the High Court and filed an application before the court to accept the certified copy of the Trust Deed and the Resolution and permit the appellant to lead evidence. The High Court, however, rejected the application and observed that the application was filed with some ulterior malafide motive.

Not agreeing with the view of the High Court, the bench of Ashok Bhushan and KM Joseph, JJ said:

“Filing of the application before the High Court to accept the certified copy of the Trust Deed and the Resolution and permit the appellant to lead evidence can in no manner be said to be malafide motive of the accused, who had been convicted in the appeal, has right to take all the grounds and also lead additional evidence, which in accordance with the Appellate Court is necessary in deciding the appeal.”

On the observation of the High Court that the application to take additional evidence at the appellate stage was filed by appellant for delaying the decision of the appeal to eternity, the bench said:

“when prosecution took twelve years’ time in leading evidence before the trial court and the judgment by trial court was delivered on 07.10.2013, the appeal was filed on 08.10.2013, how can appellant be castigated with the allegation that he intended to delay the appeal to eternity.”

It was noticed that trust Deed and the Resolution, which are foundation and basis for the start of the process of the sale of the land, were documents which ought to have been permitted to be proved to arrive at any conclusion to find out the criminal intent, if any, on the part of the appellant. The Court, hence, held that the High Court had failed to exercise its jurisdiction under Section 391 Cr.P.C. and has committed error in rejecting the applications under Section 391 Cr.P.C.

[Brig. Sukhjeet Singh v. State of Uttar Pradesh, 2019 SCC OnLine SC 72, decided on 24.01.2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of A.K. Rath, J., allowed a petition filed against the order of District Court rejecting the application of the petitioner under Order 41 Rule 27 CPC for acceptance of documents as additional evidence.

The facts of the case are that the plaintiffs-petitioners instituted a suit in the court of learned Civil Judge (Junior Division), for a declaration of title, confirmation of possession and permanent injunction. They then filed an application for additional evidence. The Court rejected the same. The Counsel for the petitioner argued that the application for additional evidence can be considered at the time of hearing of the appeal. But the Court had rejected the same before hearing of the appeal. The question that was up for consideration of the High Court was whether the Appellate Court would be justified in allowing the application for additional evidence before hearing of the appeal.

The Court relied on the case of Sankar Pradhan v. Premananda Pradhan, 2015(II) CLR 583, wherein it was held that the legitimate occasion for the exercise of this discretion was not whenever before the appeal was heard a party applied to adduce fresh evidence, but “when on examining the evidence as there stood some inherent lacuna or defect which became apparent.”The Court thus allowed the petition. [Kalandi Rout v. Bipin Swain, 2019 SCC OnLine Ori 20, decided on 15-01-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjay Kumar Gupta, J., dismissed a criminal revision petition filed against the order of the appellate court whereby petitioner’s application under Section 391 of Criminal Procedure Code, for recording additional evidence, was dismissed.

The main issue that arose before the Court was whether the appellate court had rightly rejected the application of the petitioner under Section 391 of CrPC.

The Court observed that from bare perusal of Section 391 of CrPC, it becomes clear that production of additional evidence can be permitted in case of failure of justice. However, this power conferred upon criminal court should be exercised sparingly and hence an application under Section 391 of CrPC should be decided objectively, just to cure the irregularity. This power cannot be exercised to fill the lacuna. Further, the Court also observed that as per Section 139 of the Negotiable Instruments Act (N.I. Act), the onus to prove that the cheque was not received by the bank in furtherance of discharging a liability rests upon the drawer of the cheque and not the payee. There is no law which prescribes that in the negotiable instrument, the entire body of the instrument shall be written only by the maker or drawer of the instrument, i.e. even if it is written by some other person and signed by the drawer, then that signature would be sufficient to hold the drawer liable under Section 138 of the N.I. Act in case if it is dishonoured.

The Court held that in the present case the petitioner had accepted the fact that it was his signature on the cheque and hence there was no need to send the cheque to a handwriting expert. Further, the onus of proving that the cheque was not given to the payee in the discharge of a liability, rested upon the petitioner and the petitioner failed to prove the same. Hence, the revision petition filed by the petitioner was dismissed and the order of the appellate court was upheld.[Davinder Singh v. Kiran Pargal,2018 SCC OnLine J&K 740, order dated 17-10-2018]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., allowed a writ petition filed against the order of the Appellate Court whereby his application under Order XLI Rule 27 was rejected.

The main issue that arose before the Court was whether the Appellate Court was justified in rejecting the appellant’s application for filing additional documents under Order XLI Rule 27 of CPC.

The High Court observed that ordinarily in the appellate stage, additional documents should not be allowed, however, there are exceptions to this rule. Such an application for taking on record additional evidence at the appellate stage can be entertained in cases where it can be proved that the party did not get the opportunity to file the same documents at the lower stage. It can also be entertained in cases where it can be proved that in the absence of those additional pieces of evidence justice would not be served. Further, Rule 27(1)(b) empowers the court to admit additional evidence in the appellate stage for any other substantial cause which the court may deem fit. The Court referred to the case of Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 and observed that in cases in which on the face of the records it is apparent that a party to the suit was grossly negligent and fails to establish due diligence on his part and in cases where the application for taking additional evidence is found frivolous, a decision on the application under Order XLI Rule 27 CPC should be taken by the Appellate Court at the end of the final hearings in the appeal.

The Court held that the appellate court had given findings on merits of the lease-deeds which were sought to be brought on record by the petitioner and hence the Appellate Court had prejudged the matter without taking lease deeds on record. The Court set aside the impugned order and restored the application of petitioner under Order XLI Rule 27 of the CPC to its original file. [Uma Shankar Singh v. State of Jharkhand,2018 SCC OnLine Jhar 1263, order dated 12-09-2018]