Case Note & Summary
The case involves a Chamber Summons taken out by Ferani Hotels Pvt. Ltd. (the appellant) under Order XLI, Rule 27 of the Code of Civil Procedure, 1908, seeking permission to produce fifteen additional documents in an appeal. The appeal arises from a decision of a learned Single Judge dated 15 December 2010 dismissing Miscellaneous Petition No.70 of 2010, which sought revocation or annulment of an order dated 20 November 2003 authorizing Nusli Neville Wadia (the respondent) to continue as Administrator of the estate of E.F. Dinshaw, and appointment of a fit and proper person as Administrator. The appellant claimed that after the dismissal of the miscellaneous petition, it became aware of 'certain crucial information' and came into possession of the documents listed in the schedule. However, the Court noted that the affidavit-in-support contained only a bald averment in paragraphs 13 and 15, without any basis to establish that despite the exercise of due diligence, such evidence was not within the appellant's knowledge or could not be produced at the time when the decree appealed against was passed, as required by Order XLI, Rule 27(1)(aa). The Court observed that the appellant failed to demonstrate the requisite due diligence, and therefore, the Chamber Summons was dismissed. The appeal itself was admitted and placed for hearing and final disposal.
Headnote
A) Civil Procedure - Additional Evidence at Appellate Stage - Order XLI Rule 27 CPC - Due Diligence - The appellant sought to produce fifteen documents as additional evidence in an appeal against dismissal of a petition for revocation of an administrator. The Court held that the appellant failed to establish that despite due diligence, the evidence was not within its knowledge or could not be produced at the time of the decree. The application was dismissed for lack of compliance with Order XLI Rule 27(1)(aa) CPC. (Paras 1-2)
Issue of Consideration
Whether the appellant is entitled to produce additional evidence under Order XLI, Rule 27 of the Code of Civil Procedure, 1908, in an appeal against the dismissal of a miscellaneous petition seeking revocation of an administrator's appointment.
Final Decision
The Chamber Summons was dismissed for non-compliance with Order XLI, Rule 27(1)(aa) CPC, as the appellant failed to demonstrate that despite due diligence, the evidence was not within its knowledge or could not be produced at the time of the decree.
Law Points
- Order XLI Rule 27 CPC
- additional evidence
- due diligence
- appellate stage
- strict compliance
