Page No.# 1/7 GAHC010083882020 2025:GAU-AS:4340 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/2116/2024 SRI RANJAN CHANDRA BRAHMA S/O- LATE JITENDRA NATH BRAHMA R/O- VILL- PATGAON P.S- AZARA DIST- KAMRUP ASSAM VERSUS SMTI NILIMA BALA MALI AND 3 ORS W/O- LATE BHADRESWAR MALI R/O- VILL- SATPAKHALI P.S- CHHAYGAON DIST- KAMRUP ASSAM 2:NABANITA MALI D/O- LATE BHADRESWAR MALI R/O- VILL- SATPAKHALI P.S- CHHAYGAON DIST- KAMRUP ASSAM 3:NAYAN MALI S/O- LATE BHADRESWAR MALI R/O- VILL- SATPAKHALI P.S- CHHAYGAON DIST- KAMRUP ASSAM 4:NATIONAL INSURANCE COMPANY LTD Page No.# 2/7 DIVISION NO. 10 FLAT NO. 101-106 NO.1 BMC HOUSE CONNAUGHT PLACE NEW DELHI- 110001 ------------ Advocate for : MR. A K RAY Advocate for : J SHARMA appearing for SMTI NILIMA BALA MALI AND 3 ORS BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 07-04-2025 Heard Mr. A.K. Ray, learned counsel for the applicant; Mr. T.J. Mahanta, learned senior counsel, assisted by Mr. J. Sharma, learned counsel for the opposite party No. 1 – 3; and Ms. R.D. Mazumdar, learned counsel for the opposite party No. 4. 2. This interlocutory application, under Section 107(1)(d) read with Order 41 Rule 27(1)(aa) and Section 151 of the CPC is preferred by the applicant, Ranjan Chandra Brahma to issue notice to the District Transport Officer, Kamrup (M) to appear before this court to adduce evidence in respect of the Driving Licence of the applicant herein being Driving Licence No. As-0119990018273 to ascertain as to whether the same was valid on the date of accident and also to call DW-1 in connection with the same. 3. The opposite party No. 4 has filed written objection. It is stated that the applicant had chosen not to contest the case before the learned Tribunal, for which, the case proceeded ex-parte and he had not filed any application for vacating the ex-parte order and now he is stopped for raising the issue of ex-parte hearing here in this appeal. It is also stated that the offending vehicle was driven by the applicant himself and it was in his knowledge that the person died as a result of accident and despite he chooses not to appear before the learned Tribunal. It is also stated that the DW-1 had Page No.# 3/7 adduced evidence as per record of the DTO, Kamrup (M) at Guwahati and that the applicant had not filed any written statement and as such he cannot adduce evidence now. It is also stated that the application is not maintainable. 4. Mr. Ray, learned counsel for the applicant submits that the applicant here in was arrayed as respondent Nos.1 & 2 in MAC Case No. 503/2014 on account of involvement of his Maruti Alto K-10 vehicle, bearing registration No. AS-01-AT-8614, in a motor vehicle accident that took place on 23.11.2013, leading to death of one Bhadreswar Mali. In the said case, the learned Member, MACT No. 2, Kamrup (M) at Guwahati vide impugned Judgment and Award dated 12.03.2020, has directed the opposite party No. 4, i.e. National Insurance Company Limited to pay a sum of Rs. 37,66,378/- to the claimants and also granted liberty to the opposite party No. 4 to recover the same from the present applicant. 4.1. Mr. Ray also submits that against the said judgment award dated 12.03.2020, the opposite party Nos. 1 - 3 herein, have preferred an appeal, being MAC Appeal No. 168/2020 and the same is pending for hearing today. Mr. Ray further submits that the applicant herein also filed one cross-objection on the ground that the learned Tribunal had failed to consider that he had a driving licence, bearing No. AS- 0119990018273, and as per Accident Information Report, Exhibit - 1 and as per report of the MVI, Exhibit - 4 the license was valid till 21.10.2014. 4.2. Mr. Ray also submits that in the said MAC Case No. 503/2014, the applicant herein had not received any notice from the learned Motor Accident Claims Tribunal for which he could not appear before the learned Tribunal and the learned Tribunal had presumed service of notice upon the applicant and thereafter, proceed against the applicant ex-parte and ultimately thrust the liability upon the applicant. As the applicant could not appear before the tribunal for non receipt of notice he could not prove that he had a valid driving license and also it is necessary to summon the DTO and the DW-1 for cross-examination. Otherwise the applicant will suffer irreparable Page No.# 4/7 loss and injury. Therefore, Mr. Ray has contended to allow this application. 4.3. In support of his submission, Mr. Ray has referred to a decision of Hon’ble Supreme Court in the case of Mahavir Singh and Others vs. Naresh Chandra and Another, reported in (2001) 1 SCC 309 and another decision of K.R. Mohan Reddy vs. Network INC, reported in (2007) 14 SCC 257. 5. Per contra, Ms. Mazumdar, learned counsel for the opposite party No. 4 has vehemently opposed the application. Referring to a petition dated 02.08.2014, No. 4019, and the vakalatnama of his counsel, which is available on the record, Ms. Mazumdar submits that the applicant herein had knowledge about the MAC case pending against him and he prayed for time to file written statement and the same was allowed by the learned tribunal vide order dated 02.08.2014. And despite, the learned Tribunal had issued fresh notice to him and thereafter, vide order dated 08.03.2018, the learned Tribunal had decided to proceed ex-parte after deemed service of notice upon the applicant. As such, the applicant has not been telling truth before this court. 5.1. Ms. Mazumdar also referring to a decision of Hon’ble Supreme Court in Union of India (UOI) vs. Ibrahim Uddin and Another, reported in (2012) 8 SCC 148, submits that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection; provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. Therefore, it is contended to dismiss the petition. 6. Having heard the submission of learned Advocates of both sides, I have carefully gone through the application and the relevant record and also gone through the case laws relied upon by learned counsel for both the parties. 7. And I find substance in the submission so advanced by Ms. Mazumdar. Perusal of the record of the learned Tribunal reveals that on 02.08.2014, the applicant herein had Page No.# 5/7 filed a petition No. 4019, with the vakalatnama of his counsel, for allowing him to file written statement and the same was allowed by the learned Tribunal. And that being so, the applicant herein had knowledge about the MAC case pending against him. It also appears that the learned Tribunal had allowed the same vide order dated 02.08.2014. Further, it appears that despite, the learned Tribunal had issued fresh notice to him and thereafter vide order dated 08.03.2018, the learned Tribunal had decided to proceed ex-parte after deemed service of notice upon the applicant. As such the applicant has not been telling truth before this court. 7.1. It is well settled in a decision of Hon’ble Supreme Court in M.C.D. vs. State of Delhi, reported in (2005) 4 SCC 605, wherein it has been held that a person who do not approach the court with clean hand and if his case is based on falsehood, the case of such person should be summarily thrown out at any stage of the litigation. Since the applicant herein had not approached this court with clean hands, his application is also liable to be dismissed on this count alone. 8. It also appears that the applicant herein had admittedly not filed any written statement. He did not appear before the tribunal and in the witness box to tell his case. 9. While dealing with the issue of adduction of additional evidence at appellate stage, under Order XLI Rule 27 of the Code of Civil Procedure in the case of Ibrahim Uddin (supra), Hon’ble Supreme Court has held as under :- “36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the Page No.# 6/7 conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy [AIR 1963 SC 1526], Municipal Corpn. of Greater Bombay v. Lala Pancham [AIR 1965 SC 1008] Soonda Ram v. Rameshwarlal, (1975) 3 SCC 698 and Syed Abdul Khader v. Rami Reddy, (1979) 2 SCC 601. 10. Again, summing up the principles in para No.48 of the aforesaid decision, Hon’ble Supreme Court has held as under:- “48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the Page No.# 7/7 court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.” 11. In the case in hand, as stated herein above, the applicant did not appear before the learned Tribunal despite filing a petition to allow time to file written statement. He had offered no explanation as to why such evidence could not be led in the tribunal. And as such, the applicant had failed to prosecute his case before the tribunal diligently. Further, it appears that such evidence is not required to pronounce the judgment by this court in this appeal. Thus, the application filed does not come within the four corners of the statutory provisions itself. 12. In the result, I find this petition devoid of merit and accordingly the same stands dismissed. JUDGE Comparing Assistant