TMI Blog2008 (4) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... - judgment and the orders are erroneous and cannot be sustained - matter is remitted back to the High court - 2785 of 2008 - - - Dated:- 11-4-2008 - S.B. Sinha and D.K. Jain, JJ. REPRESENTED BY : Shri V. Shekhar, Sr. Counsel, for the Appellant. [Judgment per : D.K. Jain, J.]. Leave granted. 2. This appeal by North Eastern Railway Administration arises out of orders dated 17th July, 2002 and 14th June, 2005 passed by the High Court of Uttaranchal. By the first impugned order, the second appeal, preferred by the appellant, was dismissed on the ground that no substantial question of law arose for consideration of the Court. By the same order, the High Court has dismissed one of the applications, filed by the appellant under Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short C.P.C. ), seeking leave to amend the written statement, on the ground that such an application cannot be entertained in the second appeal. An application preferred by the appellant for review of order dated 17th July, 2002 has been dismissed vide latter order dated 14th June, 2005. 3. In order to appreciate the issue, requiring determination, a few material facts may be stated : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the land and was not in possession thereof. It was, thus, pleaded that Sanad having been obtained by playing fraud, it was null and void and could not create any right or title in favour of Kanhai. Subsequently, in support of the said pleas and contentions, in order to bring on record the copies of the official records, the appellant moved an application under order 41 Rule 27 C.P.C., before the High Court on 3rd April, 2002. 6. Vide order dated 3rd April, 2002, the High Court directed the Collector, Nainital to produce the notification under which the suit land had been acquired. Pursuant thereto, the Collector filed a detailed report, inter alia, pointing out that since the land belonged to the government, there was no question of issue of any notification under the Land Acquisition Act, 1894 and, therefore, the notification/declaration under Sections 4 and 6 of the Land Acquisition Act, 1894 could not be produced. It was also pointed out that a sum of Rs. 201.56p had been paid to Kanhai as compensation. However, the High Court without even referring to the report of the Collector, which, in fact, had been submitted pursuant to the direction issued by it, dismissed the seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of second appeal. 12. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 C.P.C., which carves out an exception to the general Rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and imitations as may be prescribed. These conditions are prescribed under order 41 Rule 27 C.P.C. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. The circumstances under which additional evidence can be adduced are : (i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, [clause (a) of sub-rule (1)], or (ii) the party seeking to produce additional evidence, established that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, [clause (aa), inserted by Act 104 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be filed as additional evidence, would be necessary 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. 15. Insofar as the principles which govern the question of granting or disallowing amendments under order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil - AIR 1957 SC 363 which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar - (1990) 1 SCC 166.). 16. These are the broad principles to be kept in vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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