- (1.) S. N. Srivastava, J. Subject-matter of impugnment in the instant petition is the order dated 26th February, 2004 passed by Lower Appellate Court whereby application for filing additional evidence in Civil Appeal No. 82 of 1999, Smt. Motha v. Harpal Singh & Ors. , was rejected premised on the ground that mere default on the part of the lawyer cannot be treated as sufficient cause.
(2.) A brief resume of necessary facts is that plaintiff Smt. Motha happens to be widow of deceased Leela who in turn was full blooded brother of Govind Singh alias Ghosi. In the aftermath of death of Leela, plaintiff became co-bhumidar to the extent of one-half share in Gata No. 48 admeasuring 14 Bigha, 15 Biswa and 5 Biswansi situated in village Utwara Pargana Tappal Tahsil Kher District Aligarh and Gata No. 51 admeasuring 5. 68 acre situated in village Khajpur Tahsil Maant District Mathura. Out of the said property the remainder half share belonged to the father of the defendants. The plaintiff instituted suit for cancellation of sale-deed dated 14-10-1987 purported to have been executed by the plaintiff in favour of defendants 1 to 5 registered in the office of Sub-Registrar Kher Aligarh on the ground that she never executed any sale-deed in favour of defendants; that she is a co-tenure-holder and in actual possession and she still enjoys the same; that she came to know on 16-11-1987 that any sale-deed has been executed purported to have been executed by the plaintiff on 12-10-1987; that she is an illiterate and unsophisticated village lady and she never executed any sale-deed; that initially she filed a criminal complaint which culminated in being dismissed by Judicial Magistrate on the ground that the matter has the complexion of being of civil nature and that in mutation also she contested the case; that on the advice of the Counsel, thereafter, the plaintiff filed a suit that fraud was committed inasmuch as the defendants set up someone to impersonate her at the time of execution of sale-deed; that though she is illiterate lady she never puts her thumb-impression; that the land in dispute is the only source of livelihood for her and for her family and she has no other source to fall back upon; that she was not paid either Rs. 40,000/- or Rs. 60,000/- as alleged that there was no independent witness and further that the scribe and witnesses testifying to sale-deed are the own men of defendant No. 1; that in mutation proceeding it was established that sale-deed did not bear any thumb-impression and mutation of defendants was rejected and thereafter the defendants filed an appeal in superior Revenue Courts. From a perusal of record, it would transpire that during pendency of the suit, the plaintiff filed certified copy of expert evidence filed in the mutation proceeding and also made an application to produce fresh expert report in the trial Court. Initially, the trial Court granted time to the plaintiff to file the expert evidence but during appeal she came to know that the same was not brought on record within the time allowed and ultimately, the suit was dismissed. In appeal, an application was filed by the plaintiff to adduce expert evidence on the ground that she was an illiterate and unsophisticated village lady and that she was not aware that expert evidence was not filed by Counsel in suit; though the expert report was received by her Counsel on 27-9-1991 itself as she was unaware that it was not brought on record by the Counsel. The appeal came to be dismissed on 17-1-2002 for default of the Counsel. Thereafter, the petitioner discharged the Counsel from brief and engaged another Counsel namely Ram Paksha Pal for seeking restoration. In course of time, the appeal was restored to its original number. Thereafter, the petitioner was informed by the subsequent Counsel namely Ram Raksha Pal Singh that Expert report was on the file of the Counsel and was advised to bring the same on record and consequently, an application was filed alongwith an application attended with an affidavit before the lower appellate Court under Order XLI, Rule 27 C. P. C. but the same also culminated in being rejected by means of the impugned order. I have heard learned Counsel for the parties and also have been taken through the materials on record.
(3.) THE learned Counsel for the petitioner canvassed that the grounds set out in the application filed with accompanying affidavit constitutes a ground under Order XLI Rule 27 of the C. P. C. and this evidence was apt to be admitted on record particular regard being had to the fact that the lady was an illiterate and unsophisticated village lady who had no knowledge or clue about legal technicalities and was fully dependent upon her lawyer that she had already made an application to bring on record the hand- writing Expert report in trial Court but the same was not filed though received by Counsel and by this reckoning, she was a victim of fraud committed on her by her Counsel. Per contra, Sri M. K. Gupta, learned Counsel for the opposite parties contended that ground urged is no ground for admitting expert evidence as additional evidence on record under Order XLI, Rule 27 C. P. C. inasmuch as the fault if any on the part of the Counsel does not fall within the parameters of grounds contemplated under Order XLI Rule 27 C. P. C. He further contended that the Counsel engaged by the petitioner at the trial Court was a lawyer of considerable renown and the allegations made against the said lawyer are not substantiated from the record. THE learned Counsel placed reliance on Mahavir & Ors. v. Naresh Chandra & Anr. , 2001 (1) JCLR 463 (SC) : 2001 (1) ARC 154 and Gurdev Singh & Ors. v. Mehnga Ram & Anr. , 1997 (2) JCLR 670 (SC) : 1997 SC & (FB) Rent Cases 370, to reinforce his contentions aforesaid. In rejoinder, learned Counsel for the petitioner again canvassed that the case laws cited by learned Counsel for the Opp. parties have no application to the facts of the present case further urging that this a clear case where fraud has been committed on illiterate and rustic village lady. He also canvassed that the affidavit filed by her in support of the application remained uncontroverted and only objection was filed and allegations have not been denied except raising technical objection to the extent that in case any fraud was committed by the Counsel she was required to prove before the Court as to what steps she has taken against the Counsel and secondly that the application was designed to remove lacunae in the case. However, the fact remains that factual aspects have not been specifically denied. Before dwelling upon the merits, it would be useful to grasp the significance of the provisions contained in Order XLI, Rule 27 of the C. P. C. vis-a-vis the controversy involved in this Petition. Order XLI, Rule 27 of the C. P. C. being germane is quoted below : "rule 27. Production of additional evidence in appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But if - (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Where additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission. " The question that crystallizes for determination in the present case is whether fraud allegedly committed by the Counsel or for matter of that, fault of the Counsel in not producing evidence, which was already on record, could constitute a ground for admitting additional evidence on record. In the facts and circumstances and upon regard being had to materials on record, it brooks no dispute that the petitioner is an unlettered rustic lady oblivious of intricacies of law who only knows to affix her thumb- impression. It is borne out from the record that appropriate application was made on behalf of the plaintiff and consequently, the trial Court ordered to produce expert evidence accordingly. It would thus transpire that all requisite steps were taken on behalf of the plaintiff to have expert opinion. The said report was received by the Counsel for the petitioner, which he did not file in the trial Court and it was subsequently found from the file of the Counsel for the petitioner. In the meantime, the trial Court dismissed the suit. The only question now remains whether plaintiff by seeking to produce additional evidence has made out a ground under Order XLI, Rule 27 of the C. P. C. that she could not have knowledge even after exercising due diligence whether expert evidence which was received by the Counsel was produced by the Counsel in the course of trial before the trial Court or not. In this connection, it is worthy of notice that the fact has not been denied that the petitioner is an illiterate village lady and she is unlettered village lady except that she knows only to affix her thumb-impression. An illiterate rustic lady cannot be expected to have a clue about intricacies and niceties of law. There is nothing on record to indicate that there was any fault on the part of the petitioner in not bringing the report on record. It is also borne out from the record that the report received by the erstwhile Counsel for the petitioner was discovered from the file of the earlier Counsel by the newly engaged Counsel that she came to know of this fact and in the circumstances, it cannot be gainsaid that fault lay on the part of the erstwhile Counsel for the petitioner who failed to bring on record the expert report already existing. The averments made in the affidavit filed by the petitioner in support of her application that she had no knowledge that the expert report had not been brought on record by her erstwhile Counsel is said to have not been controverted and what has been demurred to by the learned Counsel for the Opposite Party is that the lapse of the Counsel on his part was not sufficient ground for admitting additional evidence on record. In the circumstances, it cannot be ruled out that the petitioner was unaware that her Counsel had not brought on record the expert report and in this view of the matter, this Court is of the opinion that this could furnish a good ground for admitting additional evidence on record. In this connection, case of Rafiq & Anr. v. Munshi Lal & Anr. , AIR 1981 SC 1400. In this case, the Apex Court was seized of question emerging from non-appearance of Counsel and the observation of the Apex Court is edifying.;