SURJIT SINGH & ORS.versusGURWANT KAUR & ORS.

                    [2014] 10 S.C.R. 355


                   SURJIT SINGH & ORS.                            A
                              V.
                 GURWANT KAUR & ORS.
              (Civil Appeal No. 8283 of 2014)
                     AUGUST 27, 2014
                                                                  B
     [DIPAK MISRA AND V. GOPALA GOWDA, JJ.)

      Code of Civil Procedure, 1908: Or.XU r.27 - Suit for
specific performance - Necessary documents not filed by
plaintiff inspite reminders - Application by plaintiff for filing C
additional documents rejected by trial court which is upheld
by High Court in exercise of supervisory jurisdiction - After
dismissal of suit, in appeal by plaintiff, application filed ul .
Or.XU r.27 for production of pass books and statement of
bank accounts as additional evidence - Application allowed D
by trial court and said decision upheld by the High Court -
Challenged - Held: lnspite of numerous opportunities granted
to file the documents, the plaintiffs chos(3 not to avail of the
same, and, therefore, the said documents• were not accepted
by trial court - Civil revision was filed and dealt with on merits E
- Same set of documents were sought to be introduced before
the appellate court as the additional evidence - The
documents sought to be filed before tbe appellate court as
additional evidence were bank accounts which really were not
clinching to put the controversy - Or.XU r.27(1)(b) is not F
attracted - Therefore, the appellate court has erred in taking
recourse to the said clause and allowing the application for
taking additional evidence.

    Allowing the appeal, the court
                                                                  G
    HELD: 1. 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 where the
                           355                                    H
    356     SUPREME COURT REPORTS              [2014] 10 S.C.R.


A   appellate court was able to pronounce the judgment from
    the materials before it without taking into consideration
    the additional evidence sought to be adduced. In the case
    at hand, numerous opportunities were granted to file the
    documents, but the plaintiffs chose not to avail of the
B 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 clinching and really
c · 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
0 documents sought to be filed before the appellate court
    as additional evidence were bank accounts which really
    were not clinching to put the controversy. 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
E record in the interest of justice and, 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. Therefore, the appellate court has erred
    in taking recourse to the said clause and allowing the
    application for taking additional evidence and similarly
F the High Court has committed illegality opining that the
    order passed by the lower appellate court does not suffer
    from any infirmity. [Paras 18, 19] [369-F-H; 370-B-G]

      Parsotim v. Lal Mohan AIR 1931 PC 143; Arjan Singh
G v. Kartar Singh and Ors. AIR 1951 SC 193 - relied on.

        Arjun Singh v. Mahindra Kumar and Ors. AIR 1964 SC
    993: 1964 SCR 946; Kunhayammed and others v. State of
    Kera/a and Anr. (2000) 6 SCC 359: 2000 (1) Suppl. SCR
H   538; Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya
         SURJIT SINGH v. GURWANT KAUR                  357


Bapet (1969) 2 sec 74: 1970 (1) scR 322; I(.                  A
Venkataramiah v. A. Seetharama Reddy and Ors. AIR 1963
SC 1526: 1964 SCR 35; Syed Abdul Khader v. Rami Reddy
end Ors. AIR 1979 SC 553; Billa Jagan Mohan Reddy and
another v. Billa Sanjeeva Reddy and Ors. (1994) 4 s.cc 659:
1994 (1) SCR 429; Wadi v. Ami/al and Ors. JT 2002 (6) SC      B
16 -:- Distinguished.

     Satyadhan Ghosa/ and Ors. v. Smt. Deorajin Debi and
Anr. AIR 1960 SC 941: 1960 SCR 590; Moheshur Singh v.
Bengal Government 7Moo Ind. App 283 at p. 302 (PC);
Forbes v. Ameeroonissa Begum 10 Moo Ind. App 340 (PC);        C
Sheonath v. Ramnath 10 Moo Ind App 431 (PC); The United
Provinces Electric Supply Co. Ltd., Allahabad v. Their
Workmen (1972) 2 SCC 54; S. Malla Reddy v. Future
Builders Cooperative Housing Society and Ors. (2013) 9 SCC
349: 2013 (6) SCR 230 - referred to.                          D
                     Case Law Reference:
 1964 SCR 946                   Distinguished    Para 10
 2000 (1) Suppl. SCR 538        Distinguished    Para 10      E
 1970 (1) SCR 322               Distinguished    Para 10
 1964 SCR 35                    Distinguished    Para 11
 AIR 1979 SC 553                Distinguished    Para 11
                                                              F
 1994 (1) SCR 429               Distinguished    Para '11
 JT 2002 (6) SC 16              Distinguished    Para 11
 1960 SCR 590                   referred to      Para 13
                                                              G
 7Moo Ind. App (PC)             referred to      Para 13
 283 at p. 302
 10 Moo Ind. App 340 (PC)       referred to      Para 13
 10 Moo Ind App 431 (PC)        referred to      Para 13      H
    358      SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A     (1972) 2 sec 54                  referred to        Para 16
     2013 (6) SCR 230                  referred to        Para 16
     AIR 1931 PC 143                   relied on          Para 18
     AIR 1951 SC 193                   relied on          Para 18
B
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    8283 of 2014.

         From the Judgment & Order dated 03.05.2012 of the High
c   Court of Punjab and Haryana at Chandigarh in C.R. No. 5850
    of 2011 (0 & M).

          Manjula Gupta for the Appellants.

      Vikas Mahajan, Vishal Mahajan, A.N. Singh, Bhaskar Y.
D Kulkarni for the Respondents.

          The Judgment of the Court was delivered by

          DIPAK MISRA, J. 1. Leave granted.

E       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
F respondent No. 2 for sale of land admeasuring 28 K 12 M
  bearing khata Khatoni 330/1254, 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
G 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
H of 3,22,500/· per killa as per the agreement. As stipulated in
           SURJIT SINGH v. GURWANT KAUR                        359
                  [DIPAK MISRA, J.]
the agreement the balance amount was to be paid on 3.6.2013            A
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    B
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 to execute and register the sale
deed in favour of the plaintiff, he initiated the civil action for     c
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        D
amount; that the stand put forth by the plaintiff that he had come
to Telisil 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            E
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            F
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 offences punishable under Sections 307,
326, 323, 148 and 149 of the Indian Penal Code and Section
25 of the Arms Act was registered.                                     G

     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
                                                                       H
    360       SUPREME COURT REPORTS                  [2014] 10 S.C.R.


A 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
B 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 plaintiffs bearing No. SB/17274 but inadvertently her
c father could not produce the said statement of accounts and
  pass books, and she had no 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
D 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
E         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
F         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
G
          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.
H
         SURJIT SINGH v. GURWANT KAUR                         361
                [DIPAK MISRA, J.]
6014 of 2008 before the High Court and the learned single             A
Judge, after perusing the order passed by the learned trial
Judge, dismissed the civil revision by ascribing the following
reasons: -

    "Keeping in view the order, referred to above, this court is      8
    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     C
    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             D
    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         E
    at all be said to be erroneous, which may warrant
    interferance by this court."

     8. Thereafter the hearing of the suit proceeded and, as
has been stated earlier, it was dismissed. Being grieved by the       F
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         G
accounts as additional evidence. The said application was
resisted on 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
                                                                      H
    362      SUPREME COURT REPORTS                 [2014] 1-0 S.C.R.


A   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,
8
  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
C 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.

D         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
E   being assailed, the said order operates as res judicata and,
    therefore, tfle 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
F   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
G   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 vulnerable. In support of her submissions, she has
H   commended us to the decisions in Arjun Singh v. Mohindra
            SURJIT SINGH v. GURWANT KAUR                     363
                   [DIPAK MISRA, J.]
Kumar and others1, Kunhayammed and others v. State of A
Kera/a and anothei2 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
                                                                    8
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 C
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 su_l:tmission he
has relied on the decisions in K. Venkataramiah v. A.
Seetharama Reddy and others4, Syed Abdul Khader v. Rami D
Reddy and others5 , Billa Jagan Mohan Reddy and another
v. Billa Sanjeeva Reddy and others6 and Wadi v. Ami/al and
others7 •

     12. First, we shall deal with the application that was filed    E
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,   F
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
1.   AIR 1964 SC 993.
2.   c2000) 6 sec 359.                                               G
3.   (1969) 2 sec 74.
4.   AIR 1963 SC 1526.
5.   AIR 1979 SC 553.
6.   (1994) 4 sec 659.
7.   JT 2002 (6) SC 16.                                              H
    • 364       SUPREME COURT REPORTS                [2014] 10 S.C.R.


A    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.
8
           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
C    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 rejec1filiJ1laapplication.boldi.ng
D    that the tenants wer~ ~under the Thika Tenancy Act.
     Against the-said order the tenants moved the High Court of
     Calcufta 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
E    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
     were Thika tenants. Being of this view, the High Court allowed
F    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
G    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
H     8.   AIR 1960 SC 941.
          SURJIT SINGH v. GURWANT KAUR                         365
                 [DIPAK MISRA, J.]
judicata. Against the said order an appeal was preferred before        A
 this Court on the strength of special leave. In that context, the
 Court ruled thus: -

      "The principle of re.s judicata is based on the need of
      giving a finality to judicial decisions. What it says is that
                                                                        8
      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, C
      either because no appeal was taken to a higher court or
      because the appeal was dismissed, or no appeal lies,
      neither party will be 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. D
      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.              E

     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 F
    . 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 G
      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?"                                             H
    366        SUPREME COURT REPORTS                 [2014] 10 S.C.R.


A        After posing the said question the Court examined the
    Privy Council decisions in Moheshur Singh v. Bengal
    Government 9 , Forbes v. Ameeroonissa Begum 10 and
    Sheonath v. Ramnath 11 and accepted the observations made
    by the Privy Council in Moheshur Singh (supra) wherein it has
B   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
c          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
D          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
E          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."
F
        App.roving 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 into force of Thika
G   Tenancy (Amendment) Act, 1953 as it was an appeal by
    special leave to the superior court.

    9.    7 Moo Ind App 283 at p. 302 (PC).
    10. 10 Moo Ind App 340 (PC).
H   11. 10 Moo Ind App 431 (PC).
          SURJIT SINGH v. GURWANT KAUR                       367
                 [DIPAK MISRA J.]
     14. The aforesaid decision was approved in Arjun Singh          A
(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, 8
    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 C
    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 D
    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 E
    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 parte orders      F
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 ~ame on the ground of res judicata and          G
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   H
    368       SUPREME COURT, REPORTS                [2014] 10 S.C.R.


A         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
B         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
C questioned in an appeal against the decree in the suit, these
   principles and the observations would have immediate
   relevance. In that context, the three-Judge Bench proceeded to
   deal with various kinds of interlocutory orders and opined that
   certain orders that are interlocutory in nature are capable of
D 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
E 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
F 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
G the Court but not by principle of res judicata. The said principle
   was followed in The United Provinces Electric Supply Co. Ltd.,
   Allahabad v. Their Workmen 12 and S. Malla Reddy v. Future
   Builders Cooperative Housing Society and others13 •
  12. (1972) 2 sec 54.
H 13. (2013) 9 sec 349.
             I

          SURJIT SINGH v. GURWANT KAUR                         369
                 [DIPAK MISRA, J.]
      17. In the case at hand, we do not intend to deal with the       A
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        B
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   C
(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       D
an additional 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           E
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            F
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 Mohan 14 where the appellate court        G
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

14. AIR 1931 PC 143.                                                   H
    370       SUPREME COURT REPORTS                [2014] 10 S.C.R.


A   by a three-Judge Bench in Arjan Singh v. Kartar Singh and
    others15 .

         19. Coming to the case at hand, the documents were
    sought to be introduced at the stage of hearing of the suit.
B   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
C   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
D   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
    XU Rule 27 (1 )(b) to suggest that it is necessary to take the
E   documents on record in the interest of justice and, 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 XU Rule 27 (1)(b) may be in a broader
F   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
G   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
H   15.   AIR 1951 SC 193.
            SURJIT SINGH v. GURWANT KAUR                     371
                   [DIPAK MISRA, J.]
authorities which pertain to scope of Order XU Rule 27 of the       A
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 XU Rule 27(1)(b), for the judicial         8
propriety becomes an 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         C
costs.
Devika Gujral                                     Appeal allowed.