Page 1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8283       OF 2014   (Arising out of S.L.P. (C) No. 18676 of 2012)

Surjit Singh & Ors. ...  Appellants

Versus

Gurwant Kaur & Ors.      ...Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The respondent No. 1 instituted Civil Suit No. 78 of  

2003  in  the  Court  of  the  learned  Additional  Civil  Judge  

(Senior  Division),  Patti,  district  Taran  Taran,  for  specific  

performance of contract entered into between him and the  

appellant No. 1, the predecessor-in-interest of appellants  

Nos.  2  to  4  and the  respondent  No.  2  for  sale  of  land  

admeasuring 28 K 12 M bearing khata Khatoni 330/1254,

Page 2

1256, 331/1261 and Killa Nos. 34/25 (712), 40/1/1 (4-15),  

10/2  min  (0-8),  41/5  min  (2-8)  6/1  (7-5)  15/1  (2-16),  

34/162  (3-8),  situated  in  village  Talwandi  Sobha  Singh  

Tehsil Patti District Amritsar as per Jamabandi for the year  

1997-98  at  the  rate  of  Rs.3,22,500/-  per  Killa  which  

included all rights attached to the land.   

3. It was averred in the plaint that the defendant in the  

Civil  suit  had  received  Rs.50,000/-  on  7.2.2003  and  a  

further sum of Rs. 50,000/- on 25.2.2003 as against the  

determined  price  of  3,22,500/-  per  killa  as  per  the  

agreement.  As stipulated in the agreement the balance  

amount  was  to  be  paid  on  3.6.2013  at  the  time  of  

execution  and  registration  of  sale  deed  before  the  sub  

Registrar, Patti.  It was also recited in the agreement that  

the suit land was already mortgaged with the State Bank  

of Patiala and the defendants should clear the loan before  

execution  of  the  sale  deed  in  favour  of  plaintiff  failing  

which  the  deposited  amount  would  be  forfeited.   The  

plaintiff, as averred in the plaint, went to the office of the  

sub-Registrar but the defendants did not turn up.  As there  

was breach of contract by the defendants, for they failed  

2

Page 3

to  execute  and  register  the  sale  deed  in  favour  of  the  

plaintiff,  he  initiated  the  civil  action  for  specific  

performance of contract or in the alternative for recovery  

of Rs.2,00,000/- as compensation.   

4. The defendants entered contest and filed the written  

statement  contending,  inter  alia,  that  the  suit  was  not  

maintainable;  that  the  plaintiff  was  not  ready  with  the  

balance amount; that the stand put forth by the plaintiff  

that  he had come to Tehsil  complex on 3.6.2003 along  

with  the  balance  sale  consideration  and  the  attesting  

witnesses  was  farther  from  the  truth,  for  the  original  

defendants  remained  present  in  the  office  of  Sub  

Registrar,  Patti  from  9.00  a.m.  to  5.00  p.m.  but  the  

plaintiff  did  not  turn  up  as  he  was  not  ready  with  the  

balance consideration; and that the defendants moved an  

application  before  the  concerned  Sub-Registrar  for  

marking their presence and gave an affidavit which was  

duly signed by the Sub-Registrar.  The further stand of the  

defendants was that the plaintiff and her relatives tried to  

take forcible possession of the property in  dispute as a  

consequence  of  which  FIR  No.  97  dated  9.6.2003  for  

3

Page 4

offences  punishable  under  Sections  307,  326,  323,  148  

and 149 of the Indian Penal Code and Section 25 of the  

Arms Act was registered.   

5. The learned trial Judge framed as many as six issues,  

recorded the evidence and, eventually, dismissed the suit  

filed by the plaintiff.  It is apt to mention here that during  

the  pendency  of  the  suit  the  plaintiff  had  filed  an  

application  under  Section  151  of  the  Code  of  Civil  

Procedure (CPC) for filing of additional documents with the  

prayer  that  the  said  documents  should  be  accepted as  

additional evidence.  It was stated in the application that  

in her evidence she had already deposed that she had got  

Rs.9,00,000/- from her husband’s brother, Gian Singh, and  

he was having Rs.1,00,000/- in her account bearing No.  

1313.   It  was  also  averred  that  she  was  under  the  

impression that her father was prosecuting the case and  

had filed the statement of accounts bearing No. 1-29 of  

Gian  Singh  and  of  plaintiff’s  bearing  No.  SB/17274  but  

inadvertently  her  father  could  not  produce  the  said  

statement of accounts and pass books, and she had no  

4

Page 5

knowledge about the same.  In the said backdrop a prayer  

was made for acceptance of the documents.   

6. The learned trial  Judge, after perusing the material  

on record, passed the following order: -

“A perusal of file shows that the suit was filed  on  23.7.2003  and  issues  were  framed  on  7.1.2004.   Since  then,  plaintiff  availed  14  opportunities  to  produce  and  conclude  her  evidence and ultimately closed it at her own  on 11.5.05 and thereafter the case was fixed  for defendant evidence.  Defendant also took  19 opportunities to  conclude their  evidence  and ultimately  closed the  same on  19.4.06  and after that the case was fixed for rebuttal  evidence of plaintiff, for which plaintiff took 8  opportunities and then he came up with the  present  application.   It  is  clear  from  the  above  facts  that  it  was  not  mere  inadvertence that these copies could not be  produced by the plaintiff, rather the plaintiff  did not act diligently herself.  If the applicant  was  diligent,  the  application  should  have  come on record,  much earlier  and not  now  and it appears only an attempt to seek time  and  fill  up  lacuna.   Accordingly  the  application is dismissed.”

7. The aforesaid order was assailed in Civil Revision No.  

6014 of 2008 before the High Court and the learned single  

Judge, after perusing the order passed by the learned trial  

Judge,  dismissed  the  civil  revision  by  ascribing  the  

following reasons: -

5

Page 6

“Keeping in view the order, referred to above,  this court is of the view that prayer made by  the  learned  counsel  for  the  grant  of  one  opportunity  to  the  petitioner  to  produce  copies of statements of accounts by way of  additional evidence cannot at all be accepted  since number of opportunities were availed of  by the plaintiff but failed to produce copies of  statement of account in support of her case.  Even otherwise, case is at the fag end stage  and  now  this  application  for  producing  the  afore referred  documents  in  support  of  her  case  has  been  filed  just  to  delay  the  proceedings  of  the  case.   That  apart,  the  aforementioned  copies  of  statement  of  accounts were very much in the knowledge of  the  plaintiff-petitioner  and  if  the  petitioner  had been vigilant,  she must have produced  the same at appropriate stage.  Approach of  the  learned  trial  court  in  dismissing  the  application for producing copies of statement  of  account  by  way  of  additional  evidence  cannot at all be said to be erroneous, which  may warrant interference by this court.”

8. Thereafter the hearing of the suit proceeded and, as  

has been stated earlier, it was dismissed.  Being grieved  

by the judgment and decree passed by the learned trial  

Judge,  the  plaintiff  preferred  an  appeal  before  the  

Additional  District  Judge,  Taran  Taran.   During  the  

pendency  of  the  appeal,  the  plaintiff-appellant  filed  an  

application under Order XLI Rule 27 of CPC for production  

of  pass  books  and  the  statement  of  bank  accounts  as  

additional evidence.  The said application was resisted on  

6

Page 7

many  a  ground.   The  learned  Additional  District  Judge  

came  to  hold  that  the  evidence  being  in  nature  of  

documentary  evidence  and  being  admissible,  it  was  

appropriate to allow the same.  The lower appellate court  

also  observed  that  the  defendants-respondents  would  

have the opportunity  to  rebut  the same.   Being of  this  

view  he  allowed  the  application  subject  to  payment  of  

Rs.1,000/- as costs.   

9. The said order was assailed in Civil Revision No. 5850  

of  2011  and  the  learned  single  Judge  by  order  dated  

3.5.2012,  declined  to  interfere  on  the  ground  that  the  

lower appellate court had fairly appreciated the provisions  

in  law  and  correctly  opined  that  the  documents  were  

required for  just decisions of the case.   That apart,  the  

learned single Judge observed that in a suit  for  specific  

performance of contract the ready and willingness of the  

plaintiff  to  perform  her  part  of  the  contract,  being  an  

important  factor,  by  allowing  the  application  the  lower  

appellate  court  had  not  committed  any  legal  infirmity.  

The said order is  under assail  in the present appeal  by  

special leave.

7

Page 8

10. Calling  in  question  the  legal  substantiality  of  the  

order, it is urged by Ms. Manjula Gupta, learned counsel  

appearing for the appellants, that once the application for  

additional evidence was rejected by the learned trial Judge  

and the same got the stamp of approval by the High Court  

in civil revision on being assailed, the said order operates  

as  res judicata and, therefore, the lower appellate court  

could  not  have  entertained  the  application.   Learned  

counsel  would  further  submit  that  the  learned  first  

appellate  Judge  has  fallen  into  grave  error  not  only  in  

exercise of his jurisdiction inasmuch as the plea relating to  

ready and willingness was disbelieved by the trial court on  

the basis of material on record and the adroit made by the  

plaintiffs/  appellants  at  the  appellate  stage  to  produce  

books of accounts to show that they had money in their  

accounts, would not come within the ambit and sweep to  

make out a case under Order XLI Rule 27 of CPC.  That  

apart,  submits  learned  counsel  for  the  appellants,  the  

ingredients which are required to be satisfied for getting  

the  benefit  under  the  said  provision,  were  not  at  all  

satisfied  and  hence,  the  impugned  order  is  absolutely  

8

Page 9

vulnerable.   In  support  of  her  submissions,  she  has  

commended  us  to  the  decisions  in  Arjun  Singh  v.  

Mohindra  Kumar  and  others1,  Kunhayammed  and  

others v. State of Kerala and another2 and Shankar  

Ramchandra  Abhyankar  v.  Krishnaji  Dattatreya  

Bapet3.

11. Mr. Vikas Mahajan, learned counsel appearing for the  

respondents,  per  contra,  would  contend  that  the  first  

application was filed under Section 151 of CPC for filing  

additional documents before the trial court and it has no  

relevance  when  an  application  for  filing  of  additional  

evidence under Order XLI Rule 27 of the CPC is filed before  

the appellate court.  It is urged by him that acceptance of  

the said documents would subserve the cause of justice  

and when the appellate  court  and the High Court  have  

accepted  the  stand  of  the  respondents  in  proper  

perspective,  the  impugned  orders  do  not  warrant  any  

interference by this Court.  To bolster the said submission  

he has relied on the decisions in K. Venkataramiah v. A.  

1 AIR 1964 SC 993 2 (2000) 6 SCC 359 3 (1969) 2 SCC 74

9

Page 10

Seetharama Reddy and others4, Syed Abdul Khader  

v.  Rami  Reddy  and  others5,  Billa  Jagan  Mohan  

Reddy  and  another  v.  Billa  Sanjeeva  Reddy  and  

others6 and Wadi v. Amilal and others7.

12. First, we shall deal with the application that was filed  

by the plaintiffs before the learned trial Judge.  It was an  

application under Section 151 of CPC for filing of additional  

documents and the learned trial  Judge passed an order  

refusing to take the additional documents on record.  The  

said order  having assailed before the High Court  in  the  

civil  revision,  the  High  Court  had  declined  to  interfere.  

The question that arises for consideration is when such an  

order passed by the learned trial Judge had been affirmed  

by the High Court in exercise of supervisory jurisdiction,  

would it still be permissible from the view of propriety on  

the  part  of  the  first  appellate  court  to  accept  the  

documents in exercise of power under Order XLI Rule 27  

of the CPC and, if not, was it not the duty of the High Court  

to lancinate it.

4 AIR 1963 SC 1526 5 AIR 1979 SC 553 6 (1994) 4 SCC 659 7 JT 2002 (6) SC 16

10

Page 11

13. In  this  context,  we  may  refer  with  profit  to  the  

authority  in  Satyadhan  Ghosal  and  others  v.  Smt.  

Deorajin Debi and another8.  It was a case where the  

landlords had obtained a decree for ejectment against the  

tenants.  After the decree was made, the Calcutta Thika  

Tenancy Act, 1949 came into force.  The decree had not  

yet  been  put  for  execution.   The  tenants  preferred  an  

application under Section 28 of the said Act for rescission  

of the decree passed against them.  The said application  

was  resisted  by  the  landlords  who  were  the  decree-

holders.   The  learned  Munsif  rejected  the  application  

holding  that  the  tenants  were  Thika  tenants  under  the  

Thika Tenancy Act.   Against  the  said  order  the tenants  

moved the High Court of Calcutta under Section 115 of  

CPC.  By the time the revision application was taken up for  

hearing, the Calcutta Thika Tenancy Act was amended in  

1953.  The amended Act omitted Section 28 of the original  

Act.   The  High  Court  considered  the  effect  of  the  

amendment made in the Act and opined that in view of  

the amended definition of the term “Thika tenant” and the  

evidence brought on record it can be held that the tenants  8 AIR 1960 SC 941

11

Page 12

were Thika tenants.   Being of this view, the High Court  

allowed the revision and set aside the order of the learned  

Munsif whereby he had dismissed the application of the  

tenants under Section 28 of the Act.  After setting aside  

the  order,  the  High  Court  remanded  the  matter  to  the  

court  of  learned Munsif  for  disposal  in  accordance with  

law.  After remit the learned Munsif rescinded the decree.  

The  said  order  was  assailed  under  Section  115  of  CPC  

which  was  rejected  by  the  High  Court.   In  revision,  a  

contention was advanced that Section 28 of the Act was  

not applicable.  The Learned Judge who heard the matter  

opined that the question as between the parties was  res  

judicata.  Against the said order an appeal was preferred  

before this Court on the strength of special leave.  In that  

context, the Court ruled thus: -

“The principle of res judicata is based on the  need of giving a finality to judicial decisions.  What it says is that once a res is judicata, it  shall  not  be  adjudged  again.   Primarily  it  applies as between past litigation and future  litigation.   When  a  matter  –  whether  on  a  question of  fact  or  a  question of  law – has  been decided between two parties in one suit  or proceeding and the decision is final, either  because  no  appeal  was  taken  to  a  higher  court or because the appeal was dismissed,  or  no  appeal  lies,  neither  party  will  be  

12

Page 13

allowed  in  a  future  suit  or  proceeding  between  the  same  parties  to  canvass  the  matter gain.  This principle of res judicata is  embodied in relation to suits in S. 11 of the  Code of Civil Procedure; but even where S. 11  does not apply, the principle of res judicata  has been applied by courts for the purpose of  achieving finality in litigation.  The result of  this is that the original court as well as any  higher  court  must  in  any  future  litigation  proceed  on  the  basis  that  the  previous  decision was correct.

After so stating the Court laid down the principle of  

the applicability of the doctrine of  res judicata between  

two stages of the suit: -

“The principle of res judicata applies also as  between two stages in the same litigation to  this  extent  that  a  court,  whether  the  trial  court or a higher court having at an earlier  stage decided a matter in one way will  not  allow  the  parties  to  re-agitate  the  matter  again  at  a  subsequent  stage  of  the  same  proceedings.  Does this however mean that  because at an earlier stage of the litigation a  court has decided an interlocutory matter in  one  way  and  no  appeal  has  been  taken  therefrom or no appeal did lie, a higher court  cannot at a later stage of the same litigation  consider the matter again?”

After  posing the said question the Court  examined  

the  Privy  Council  decisions  in  Moheshur  Singh  v.  

Bengal  Government9,  Forbes  v.  Ameeroonissa  

9 7 Moo Ind App 283 at p. 302 (PC)

13

Page 14

Begum10 and Sheonath v. Ramnath11 and accepted the  

observations  made  by  the  Privy  Council  in  Moheshur  

Singh (supra) wherein it has been held thus: -

“We are of opinion that this objection cannot  be sustained.  We are not aware of any law or  regulation prevailing in India which renders it  imperative  upon  the  suitor  to  appeal  from  every  interlocutory  order  by  which  he  may  conceive  himself  aggrieved,  under  the  penalty, if he does not so do, of forfeiting for  ever the benefit  of the consideration of the  appellate  court.   No  authority  or  precedent  has  been  cited  in  support  of  such  a  proposition,  and  we  cannot  conceive  that  anything would be more detrimental  to  the  expeditious administration of justice than the  establishment of a rule which would impose  upon the suitor the necessity of so appealing;  whereby  on  the  one  hand  he  might  be  harassed  with  endless  expense  and  delay,  and  on  the  other  inflict  upon  his  opponent  similar  calamities.   We  believe  there  have  been very many cases before this Tribunal in  which their Lordships have deemed it to be  their duty to correct erroneous interlocutory  orders,  though  not  brought  under  their  consideration until the whole cause had been  decided,  and  brought  hither  by  appeal  for  adjudication.”

Approving the said principle  this  Court  opined that  

the  appellants  in  that  case  were  not  precluded  from  

raising the question that Section 28 of the original Thika  

Tenancy Act was not available to the tenants after coming  10 10 Moo Ind App 340 (PC) 11 10 Moo Ind App 431 (PC)

14

Page 15

into force of Thika Tenancy (Amendment) Act, 1953 as it  

was an appeal by special leave to the superior court.   

14. The aforesaid decision was approved in Arjun Singh  

(supra) wherein the Court ruled thus:-

“If  the  court  which  rendered  the  first  decision  was  competent  to  entertain  the  suit or other proceeding, and had therefore  competency to decide the issue or matter,  the  circumstance  that  it  is  a  tribunal  of  exclusive  jurisdiction  or  one  from  whose  decision  no  appeal  lay  would  not  by  themselves  negative  the  finding  on  the  issue  by  it  being  res  judicata  in  later  proceedings.  Similarly, as stated already,  though S. 11 of the Civil  Procedure Code  clearly contemplates the existence of two  suits and the findings in the first being res  judicata  in  the  later  suit,  it  is  well  established that the principle underlying it  is  equally  applicable  to  the  case  of  decisions rendered at successive stages of  the same suit  or  proceeding.   But  where  the principle of res judicata is invoked in  the  case  of  the  different  stages  of  proceedings in the same suit, the nature of  the proceedings, the scope of the enquiry  which the adjectival  law provides for  the  decision  being  reached,  as  well  as  the  specific  provisions  made  on  matters  touching  such  decision  are  some  of  the  material  and  relevant  factors  to  be  considered  before  the  principle  is  held  applicable.”

15. Thereafter,  the  Court  adverted  to  the  applications  

which  were  filed in  three suits  for  setting  aside the ex  

15

Page 16

parte  orders  passed  against  the  appellant  therein,  and  

after  deliberating  the  nature  of  the  order,  that  is,  one  

under Order IX Rule 7 and the rejection thereof by the trial  

court and affirmance thereof by the High Court, the filing  

of the application under Order IX Rule 13 and dismissal of  

the same on the ground of res judicata and concurrence  

thereof  by  the  High  Court,  the  court  referred  to  the  

decision  in  Satyadhan  Ghosal  (supra)  and  after  

reproducing a paragraph from the same, opined thus: -

“Does this,  however,  mean that because at  an earlier stage of the litigation a court has  decided an interlocutory matter in one way  and no appeal has been taken therefrom or  no appeal did lie, a higher court cannot at a  later stage of the same litigation consider the  matter again? .... It is clear therefore that an  interlocutory  order  which  had  not  been  appealed from either because no appeal lay  or even though an appeal lay an appeal was  not taken could be challenged in an appeal  from the final decree or order.”

16.  After  so  stating,  the  Court  observed  that  if  the  

correctness of the order of the Civil Judge in disposing of  

the  application  under  Order  IX  Rule  7  filed  by  the  

appellant was questioned in an appeal against the decree  

in the suit,  these principles and the observations would  

have  immediate  relevance.   In  that  context,  the  three-

16

Page 17

Judge  Bench  proceeded  to  deal  with  various  kinds  of  

interlocutory orders  and opined that  certain  orders that  

are interlocutory in nature are capable of being altered or  

varied by the subsequent applications for the same relief,  

normally  only  on  proof  of  new  facts  or  new  situations  

which subsequently  emerge.   The Court  emphasised on  

the  nature  of  the  order  and  ruled  that  if  it  does  not  

impinge upon the legal rights of parties to the litigation  

the principle of res judicata would not apply to the findings  

on  which  the  order  is  passed.   However,  the  Court  

observed that if applications were made for relief on the  

same basis after the same had once been disposed of the  

court would be justified in rejecting the same as an abuse  

of  the  process  of  the  Court.   Thereafter,  the  Court  

proceeded to state that the successive applications based  

on same set of facts,  if  they are interlocutory orders of  

different  nature  and  are  passed  for  preservation  of  

property,  do not in any manner decide the merit of the  

controversy in issue.  They can be rejected on the ground  

of abuse of the process of the Court but not by principle of  

res  judicata.   The  said  principle  was  followed  in  The  

17

Page 18

United Provinces Electric Supply Co. Ltd., Allahabad  

v.  Their  Workmen12 and  S.  Malla  Reddy  v.  Future  

Builders Cooperative Housing Society and others13.

17. In the case at hand, we do not intend to deal with the  

submission  whether  rejection  of  an  application  to  take  

additional documents on record during the trial  and the  

affirmation  thereof  in  civil  revision  by  the  High  Court  

would operate as res judicata or not, when an application  

is preferred under Order XLI Rule 27 of the CPC, for the  

provisions are different.  But, we intend to deal with the  

exercise of jurisdiction and justifiability of the same regard  

being had to the special factual matrix of the instant case.

18. At this juncture, it is necessary to clarify that sub-rule  

(1)(a) of Order XLI Rule 27 is not attracted to the case at  

hand  inasmuch  as  the  documents  were  not  taken  on  

record by the trial court and error, if any, in the said order  

does not survive for reconsideration after the High Court  

has  given  the  stamp  of  approval  to  the  same  in  civil  

revision.   Similarly,  sub-rule  (1)(aa)  would  not  be  

applicable as the party seeking to produce an additional  12 (1972) 2 SCC 54 13 (2013) 9 SCC 349

18

Page 19

evidence on the foundation that despite exercise of due  

diligence, such evidence was not within his knowledge or  

could not, after exercise of due diligence, be produced by  

him at the time when the decree appealed against was  

passed does not arise, for the documents were sought to  

be produced before the trial court.  Cases may arise under  

sub-rule (1)(b) where the appellate court may require any  

document to be produced or any witness to be examined  

to  enable  it  to  pronounce  judgment,  or  for  any  other  

substantial cause.  However, exercise of the said power is  

circumscribed by the limitations specified in the language  

of the rule.  It is the duty of the court to come to a definite  

conclusion  that  it  is  really  necessary  to  accept  the  

documents  as  additional  evidence  to  enable  it  to  

pronounce the judgment.  The true test is, as has been  

held  in  Parsotim  v.  Lal  Mohan14 where the  appellate  

court  was  able  to  pronounce  the  judgment  from  the  

materials before it  without taking into consideration the  

additional  evidence  sought  to  be  adduced.   The  same  

principle  has  been accepted by  a  three-Judge Bench in  

Arjan Singh v. Kartar Singh and others15.   14 AIR 1931 PC 143 15 AIR 1951 SC 193

19

Page 20

19. Coming to  the  case  at  hand,  the  documents  were  

sought to be introduced at the stage of hearing of the suit.  

Numerous  opportunities  were  granted  to  file  the  

documents,  but  the  plaintiffs  chose  not  to  avail  of  the  

same.  Therefore, the said documents were not accepted  

by the trial court.  A civil revision was filed and dealt with  

on  merits.  Same  set  of  documents  were  sought  to  be  

introduced  before  the  appellate  court  as  the  additional  

evidence.  The said  documents  are  not  such  documents  

which  are  clinching  and  really  essential  for  

pronouncement  of  the judgment  or  for  that  matter  any  

other substantial cause.  There may be cases where on  

acceptance of public documents the decision on the lis in  

question  would  subserve  cause  of  justice  and  avoid  

miscarriage of justice.  In the instant case, the documents  

which are sought to be filed before the appellate court as  

additional evidence are bank accounts which really are not  

clinching  to  put  the  controversy.   As  we  find,  it  is  

extremely difficult to put the case under Order XLI Rule 27  

(1)(b)  to  suggest  that  it  is  necessary  to  take  the  

documents  on  record  in  the  interest  of  justice  and,  

20

Page 21

additionally, when the said documents were rejected to be  

taken on record by the trial court and the said rejection  

had been affirmed by the High Court.  We are conscious,  

the spectrum that can be covered under Order XLI Rule 27  

(1)(b) may be in a broader one but in certain cases judicial  

propriety would be an impediment and the present case is  

one  where  the  judicial  propriety  comes  on  the  way.  

Therefore,  we  are  of  the  considered  opinion  that  the  

appellate court has erred in taking recourse to the said  

clause and allowing the application for taking additional  

evidence  and  similarly  the  High  Court  has  committed  

illegality  opining  that  the  order  passed  by  the  lower  

appellate court does not suffer from any infirmity.   

20. Be  it  stated,  the  learned  counsel  has  referred  to  

certain  authorities  which  pertain  to  scope  of  Order  XLI  

Rule 27 of the CPC, but they are distinguishable on facts  

as they relate to due diligency, relevancy of documents  

and the requisite approach.  We have already opined that  

the  documents  are  not  so  clinching  to  be  accepted  as  

additional evidence in exercise of jurisdiction under Order  

XLI  Rule  27(1)(b),  for  the judicial  propriety  becomes an  

21

Page 22

impediment and, therefore, there is no necessity to advert  

to the said authorities.

21. In  view  of  the  aforesaid  analysis,  the  appeal  is  

allowed  and  the  orders  passed  by  the  lower  appellate  

court and that of the High Court are set aside.  There shall  

be no order as to costs.

.............................J. [Dipak Misra]

.............................J. [V. Gopala Gowda]

New Delhi; August 27, 2014.   

22