Ashwani Kumar & Ors. V. Union of India & Ors.

CMP/14182/2021

AI Insights

The case involves Ashwani Kumar and others as applicants/appellants, who sought to introduce additional evidence in the form of various certified and uncertified documents related to land acquisition for construction projects in Pathankot, Punjab. The respondents included the Union of India and the State of Himachal Pradesh. The additional evidence was intended to support the appellants' claims regarding their rights and compensations related to the acquired lands. The court had to decide whether the additional evidence was necessary and relevant to the case, considering the provisions of Order 41 Rule 27 CPC, which allows for the introduction of additional evidence under certain circumstances.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 818230 (HC-HIMACHAL_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 21-12-2023
• Assessment Year: misc
• Other Referred Cases: Arjan Singh v. Kartar Singh, North Eastern Railway Admn. v. Bhagwan Das, Malayalam Plantations Ltd. v. State of Kerala, Union of India v. K.V. Lakshman, Jaipur Development Authority vs. Kailashwati Devi
• Laws Referred To: Order 41 Rule 27 C.P.C.
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: BALRAM SHARMA; ANUP RATTAN; RAKESH DHAULTA; PRANAY SINGH; SIDHARTH JALTA; ARSH RATTAN
• Assessee Lawyers: RAJIVE BHALLA; UMESH KANWAR; SUNEET VERMA; VARUN PURI
• Keywords: Additional evidence; Document Admissibility; Land Acquisition; National Highway; Military hospital; Civil airport
• Section: 27

Judgement Text

"IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMP no.14182 of 2021 In RFA No.4176 of 2013 Reserved on:05.12.2023 Pronounced on: 21.12.2023 Ashwani Kumar & Ors. ……Applicants Versus Union of India & Ors. …Respondents __________________________________________________________ Coram: Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting? For the appellants : Mr. Rajive Bhalla, Sr. Advocate (through V.C.) with Mr. Umesh Kanwar, Mr. Suneet Verma and Mr. Varun Puri, Advocates. For the respondents : Mr. Balram Sharma, Deputy Solicitor General of India, for respondents no.1 & 2/Union of India. Mr. Anup Rattan, Advocate General with Mr. Rakesh Dhaulta & Mr. Pranay Pratap Singh, Additional Advocate Generals, and Mr. Sidharth Jalta & Mr. Arsh Rattan, Deputy Advocate Generals, for respondent no.3/State. M.S. Ramachandra Rao, Chief Justice. CMP no.14182 of 2021. This application had been filed by the applicants/ appellants under Order 41 Rule 27 C.P.C. to place on record the following documents, inter-alia, as under:- Sr. no. Particulars 1. Certified copy of award dt. 06.03.1985 in Arbitration Case no.23 of 1984, titled Balwant Singh vs. Union of India, Annexure A-1. 2. Certified copy of order dated 17.12.2008, passed by the High Court of Punjab & Haryana in FAO No.834 of 1085, in case titled as Balwant Singh & Others vs. U.O.I. & Ors. Annexure A-2. 3. Certified copy of order dt. 15.10.2012, passed by the Supreme Court of India in SLP, titled as U.O.I. & Ors. vs. Balwant Singh & Ors. Annexure A-3. 4. Uncertified copy of award dt. 22.09.1983, passed by the Arbitrator (Additional District Judge, Shimla, in Reference no.25 of 1978/1 of 1983 (Mandir Dhamtal & Anr. Vs. Union of India). Annexure A-4. 5. Certified copy of judgment dt. 08.01.1991 in FAO no.257 of 1983 (U.O.I. vs. Mandir Damtal & Others), passed by the High Court of Himachal Pradesh, Shimla. along with uncertified copy of award dated 12.09.1983, in RefeerenceNo.25 of 1978/1 of 1983, (Mandir Damtal & Anr. vs. U.O.I.), Annexure A-5. 6. Certified copy of Jamabandi for land in Village Beli Mahanta which was acquired for construction of Military Hospital Pathankot. Annexure A-6. 7. Copy of Aks Shajra in Village-Beli Mahanta, Tehsil Indora, District Kangra. Annexure A-7. 8. Copy of certified copy of judgment dt. 21.09.2001 in CWP no.438 of 1999 (Harbhajan Singh vs. State of H.P. & Others), passed by the High Court of Himachal Pradesh along with Un-certified copy of report of Deputy Commissioner, Kangra dt. 04.01.1999. Annexure A-8. 9. Copy of certified copy of registered Lease Deed dt. 10.09.1985 registered with the Registrar Nurpur, H.P. in favour of Ashwani Kumar, Narender Nath, Gagan Singh and Chhaya Katoch. Annexure A-9. 10. Copy of Jamabandi for the Year 1995-96 of Village Damtal, Tehsil Indora, District Kangra, Khewat No.62, Khatauni No.08, showing Mandir Damtal as owner and Ashwani Kumar & Others in possession on the basis of Lease Deed for area acquired for the construction of Civil Airport Pathankot, Kh.10, 11, 12, 19 & 21. Annexure A-10. 11. Certified copy of Temple Commissions Reference Petition No.1/16/03 Regd. No.4/2014, date of decision 2/8/2017. Land acquired for construction of Pathankot Airport (Civil). Annexure A-11. 12. Copy of award dt. 15.02.2012, passed by Additional District Judge, Gurdaspur, in LAC Case no.10 of 25.03.2004 (Jagir Singh vs. Chairman Airport Authority of India & others), land acquired for the construction of Pathankot Airport (Civil)- Land, falling in Punjab. Annexure A-12. 13. Certified copy of award dt. 01/2006-2007, passed for the acquisition of land of Village-Channi, Khanpur, Milwan, Tamota, Surajpur- Jikla, Sirat, Damtal, Mohtali, Reserved Forest Damtal and Village Bhadroya, for broadening of NH- 1-A, Village in Tehsil Indora, District Kangra, H.P. Annexure A-13. 14. Certified copy of order dt. 10.01.2020 in Case No.280/2007, titled Madhan Singh vs. U.O.I, passed by Divisional Commissioner, Kangra (Arbitrator). Award passed for the construction of NH-1A at Village Khanpur (under Appeal) in Tehsil Indora, District Kangra, H.P. Appeal arising out of Award dt. 01-2006-2007. Annexure A-14. 15. Copy of Jamabandi 2001-2002 Kh. no.11 to Kh.20 depicting land acquired for construction of Pathankot Civil Airport of Mandir Damtal in Village-Damtal, Tehsil Indora, District Kangra. Land acquired of Mandir Damtal. Annexure A-15 16. Copy of AksChajra prepared by Patwari Damtal depicting the distance between land acquired of Mandir Damtal in Village- Damtal, Tehsil Indora, District Kangra, H.P., for Pathankot Airport – Kh. no.11 to Kh.20 and Kh. no.1661 i.e. land acquired of Madir Damtal in Village-Damtal for the construction of NH-1-A. Annexure A-16. 17. Copy of Jamabandi for the Year 2015-2016 of Kh. no.1661 showing the area was acquired by PW Department NH-1 of Mandir Damtal. Land as shown in AKS CHAJRA. Annexure A-17. 18. Copy of Notification 3A & 3B for the Village Daulatplur, Tehsil Pathankot, Punjab, for the construction of NH-1A in Village Daulatpur, Tehsil Pathankot, Punjab. (National Highways Authority). Annexure A-18. 19. Certified copy of order passed by the Arbitrator, Divisional Commissioner, Jalandhar, in Case no.MA 1995 of 2011 fixing the rate of land in Village Daulatpur, Punjab, @ 7,00,000 per marla decided on 09.12.2012. Annexure A-19. 20. Copy of judgment dt. 30.03.2016 in FAO no.7390 of 2014 (U.O.I. and Anr. vs. Jugal Kishore & Others), passed by the High Court of Punjab & Haryana, justifying and fixing the award of Rs.4,50,000/- per marla for construction of NH-1A in Village Daulatpur, District Pathankot, Punjab. Annexure A-20. 21. Certified copy of order passed by the Supreme Court of India in Case of Union of India vs. Tarsem Singh, Civil Appeal no.7064 of 2019, endorsing the rate of Rs.4,50,000/- per marla in Village Daulatpur, District Pathankot, Punjab, discussed as ground no.4 at page 35 of the judgment. Annexure A-21. 22. Jamabandi for the year 2013-2014, Hadbast no.331 of Village Daulatpur, Tehsil and District Pathankot, bearing Kh. no.1036 to Kh. No.1053, land acquired for the construction of National Highway (NH-1A). Annexure A-22 23. AKS CHAJRA of Village Daulatpur, Tehsil & District Pathankot, bearig Kh. no.1036 to Kh. No.1053, land acquired for the construction of National Highway (NH-1A). Also showing the boundary of Village Damtal (H.P.) and Village Daulatpur, District Pathankot, Punjab (adjoining villages). Annexure A-23. 24. Copy of site plan showing the location of land acquired for construction of Civil Airport Pathankot in Village & Mauza Damtal, Tehsil Indora, by Varinder Salaria (DACH), Building Designer & Estimator. Showing the distance from land acquired for the Pathankot Airport (Civil) from NH-1A in Punjab and also showing the distance of land acquired for NH-1A and Pathankot Airport Civil in Himachal Pradesh. Annexure A-24. 25. Copy of record in case titled Income Tax Case ITA no.32 of 2003 (Commissioner of Income Tax vs. Sh. Gagan Singh Katoch). Showing the income derived by Sh. Ganga Singh (Gagan Singh) Katoch from M/s Kangra Bajri Company, Village and Post Office Damtal, Tehsil Indora, District Kangra, for the Assessment Year 1985-86 to Assessment Year 1993-94. Annexure A-25. 2) Thus, the applicants/appellants have sought to place on record the above documents as additional evidence. These include the certified copy of the registered lease deed dt. 10.09.1985 executed in their favour as well as copy of Jamabandi of the year 1995-96 in respect of the subject land, showing their possession. 3) Most of these documents are decisions/orders/judgments of Courts and authorities concerned and the others are registered documents, certain notifications and revenue records. 4) In the application filed for receiving the said additional evidence, it is contended that the father of the appellants was looking after the case; that he was old and suffering from old age ailments, and because of his falling health, he was not aware of these documents and, therefore, could not produce the same in evidence. 5) It is stated that these documents are certified copies or documents issued in discharge of official duties and are admissible per se in evidence without formal proof. 6) It is further stated that this evidence would not prejudice anyone and would assist the Court in reaching a just decision in the appeal. 7) It was also stated that these documents were not within the knowledge of the appellants or their father at the time of leading evidence before the Court below. 8) On 27.10.2022, Additional Advocate General, sought four weeks’ final opportunity to file reply to this application (CMP no.14182 of 2021). Again on 07.03.2023, the application was adjourned to 31.03.2023. As a last chance, again time was granted on 31.03.2023 for a period of three weeks. 9) Only respondent no.3 filed a reply to this application, but the other respondents have not chosen to file any reply thereto. The reply of respondent no.3 10) In the reply filed by the 3rd respondent on 19.05.2023, it is stated that the application for leading additional evidence has been filed at a belated stage and has to be rejected since no case is made out for leading additional evidence. 11) It is stated that all the documents sought to be produced were in the knowledge of the appellants and in any case they could have been discovered and produced with due diligence. 12) It is contended that the appellants cannot be allowed to fill in lacuna under the garb of additional evidence. 13) It is also stated that the same is not relevant for deciding the controversy in the case. Consideration by the Court 14) We may point out that the contesting respondent in this case is the 2nd respondent and not the 3rd respondent. 15) That apart, the 3rd respondent had admitted in his reply filed in the Court of Additional District Judge that the appellants are tenants of the subject land, though he alleged that the lease deed relied on by them is forged. But no evidence was let in by the 3rd respondent to prove this allegation. 16) Most of the documents, as pointed out by the appellants, are decisions/orders/judgments of the Courts and some of them are Courts or authorities and the rest are registered deeds, notifications and revenue records. Consideration by the Court 17) Order 41 Rule 27 C.P.C., states as under:- 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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 18) In Arjan Singh v. Kartar Singh1, the Supreme Court held that the true test for allowing an application seeking to adduce additional evidence is “whether the appellate court was able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced”. 19) In North Eastern Railway Admn. v. Bhagwan Das2, this was further explained by the Supreme Court in the following terms: “15. … … There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it re- quires additional evidence “to enable it to pronounce judg- ment”, it still considers that in the interest of justice some- thing which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be neces- sary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.” ( emphasis supplied) 1 AIR 1951 SC 193 2 (2008) 8 SCC 511, at page 516 20) Thus even if the Court finds it is able to pronounce judgment on the material adduced as evidence in the trial court, still, if it is of the view that such additional evidence adduced in appeal would enable it to pronounce the judgment in a “more satisfactory manner”, it can allow the application for additional evidence and consider it. 21) Thus, the ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of the Court delivering the judgment. 22) In Malayalam Plantations Ltd. v. State of Kerala3, the Supreme Court explained that at the time of hearing the appeal , the appellate Court should consider the petition under Or.41 Rule 27 CPC so as to find out whether the documents or evidence sought o be adduced have any relevance or bearing on the issues involved. 23) This provision was again considered by the Supreme Court in Union of India v. K.V. Lakshman4 and it held that court has to do substantial justice between the parties and merely because it allows the said application filed under Or.41 Rule 27 CPC , it 3 (2010) 13 SCC 487 4 (2016) 13 SCC 124 does not mean that it has decided the entire case in favor of the party which has filed such an application. 24) Keeping the above principles in mind, we shall consider the instant application filed by the applicant/appellant. 25) After hearing submissions of both the parties on merits and after perusing the evidence adduced in the trial court apart from the documents sought to be filed as additional evidence, we are of the opinion that such additional evidence filed with this application is required to enable this Court to pronounce judgment satisfactorily and would assist the Court in knowing the truth and in arriving at a just and proper conclusion. 26) We are also of the opinion that the documents are relevant to decide the real issue in controversy and interest of justice requires that these documents be received in exercise of the power conferred on this Court under Order 41 Rule 27 C.P.C., so that their effect can also be considered. 27) Merely because applicant did not adduce any evidence initially in the Court of the Additional District Judge-III, Kangra at Dharamshala, the applicant cannot be denied the opportunity to produce this material as an additional evidence because there is no such condition stipulated in Order 41 Rule 27 C.P.C., as held by the Supreme Court in Jaipur Development Authority vs. Kailashwati Devi5. In the said decision, the Supreme Court held that no distinction was intended by Clause (aa) of Order 41 Rule 27 C.P.C. between a party who has produced some evidence in the trial Court and one who has adduced no evidence in the trial Court. It held that all that is required is that conditions mentioned in the body of the sub-Rule, must be proved to exist. It held that it is not permissible to restrict Clause (aa) for the benefit of only those who have adduced some evidence in the trial Court. 28) The allowing of this application and taking into account this additional evidence, would enable this Court to pronounce judgment in a more satisfactory manner and understand the background of the events and would also come within the four corners of the term “other substantial cause” used in Order 41 Rule 27(b)CPC. 5(1997) 7 SCC 297 29) We find that these documents would be necessary to pronounce the judgment in this appeal in a more satisfactory manner and we do not find any substance in the contentions of respondents who opposed this application. 30) Therefore, this application is allowed and the said documents are marked as Ex.A-1 to Ex.A-25. (M.S. Ramachandra Rao) Chief Justice (Jyotsna Rewal Dua) December 21, 2023 Judge (Yashwant) "