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1998 DIGILAW 810 (PAT)

Ganesh Ojha v. Baijnath Rai

1998-11-20

M.Y.EQBAL

body1998
ORDER : This Civil Revision application is directed against the ORDER :dated 5.8.1998 passed by the 1st Addl. District Judge, Chapra in Title Appeal No. 71 of 1991 by which he rejected the application filed by the appellant-petitioner under ORDER :XLI, rule 27 of the Civil Procedure Code for reception of certain documents into evidence. 2. The petitioner is the plaintiff filed Title Suit No. 18 of 1984 for declaration of his title and possession as well as for confirmation of possession in respect of the suit land bearing plot no. 58, khata no. 104, Touzi No. 3436 in Mouza Basantpur, Police Station Amnour, District Saran. The plaintiff and the defendants led oral as well as documentary evidence before the trial court and the trial court after hearing the parties dismissed the suit in terms of the JUDGMENT : and decree dated 29.6.91 holding that the plaintiff has failed to establish his title and possession over the suit property. The plaintiff-petitioner then preferred the aforesaid Title Appeal No. 71 of 1991. The petitioners case is that during the hearing of the aforementioned appeal it was detected by the counsel for the appellant that the rent receipts granted by the Ex-landlord were duly filed in the trial court but the same could not be exhibited. The petitioner, therefore, filed an application under ORDER :XLI, rule 27 of the Code of Civil Procedure before the appellate court for allowing the appellant-petitioner to bring those rent receipts into evidence by getting the same exhibited. The said application was opposed by the Respondents-Opposite parties and the court below rejected the prayer of the petitioner by the impugned ORDER :. 3. I have heard Mr. Sudhir Singh, learned counsel appearing on behalf of the petitioner and Mr. Nawal Kishore Prasad, learned counsel for the opposite parties. 4. Learned counsel appearing on behalf of the petitioner firstly submitted that the documents are rent receipts granted by the Ex-landlord which are more than thirty years old and the same could not be exhibited due to inadvertence. Learned counsel further submitted that the rent receipts are essential for pronouncing JUDGMENT : as the proposed rent receipts are related to the disputed land and specially in view of the finding of the trial court to the effect that no rent receipt prior to the abolition of the Zamindari has been filed by the plaintiff. Learned counsel further submitted that the rent receipts are essential for pronouncing JUDGMENT : as the proposed rent receipts are related to the disputed land and specially in view of the finding of the trial court to the effect that no rent receipt prior to the abolition of the Zamindari has been filed by the plaintiff. On the other hand the learned counsel for the opposite parties submitted that the conditions required under ORDER :XLI, rule 27 of the Code of Civil Procedure for reception of the documents as an additional evidence is wanting in the instant case and, therefore, the court below has rightly rejected the prayer of the petitioner. 5. From perusal of the impugned ORDER :, it appears that the court below took notice of the fact that a bundle of rent receipts were tiled by the plaintiff-petitioner in the trial court during the trial of the suit and out of those rent receipts some of the rent receipts are related to the disputed land. However, the appellate court took the view that no step was taken by the petitioner in the trial court for proving those rent receipts and no satisfactory explanation has been given for not exhibiting those rent receipts during the trial of the suit. The appellate court, therefore, rejected the petition holding that the conditions stipulated under ORDER :XLI, rule 27 of the Code of Civil Procedure has not been fulfilled. In my opinion, the appellate court has not taken correct approach of law while deciding the scope and application of ORDER :XLI, rule 27 of the C.P.C. which reads as follows: "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. In my opinion, the appellate court has not taken correct approach of law while deciding the scope and application of ORDER :XLI, rule 27 of the C.P.C. which reads as follows: "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 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." 6. From bare reading of the aforesaid provision it is manifest that the Appellate Court has the power to allow additional evidence, not only if it requires such evidence to enable him to pronounce JUDGMENT : but also for any other substantial cause. Admittedly in the instant case all the rent receipts were filed in the trial court but the same could not be exhibited either on account of mistake on the part of the lawyer conducting the case or due to inadvertence. The rent receipts said to be more than 30 years old issued by the Ex-landlord before the abolition of the Zamindari. I have gone through the JUDGMENT : of the trial court, a copy of which has been supplied by the counsel for the petitioner, from perusal whereof it appears that the trial court came to a finding that not a single rent receipt has been proved by the plaintiff in support of his possession. In such circumstances, the appellate court ought to have held that those documents are necessary to be looked into for proper adjudication of the matter in controversy and for pronouncement of the JUDGMENT :. In such circumstances, the appellate court ought to have held that those documents are necessary to be looked into for proper adjudication of the matter in controversy and for pronouncement of the JUDGMENT :. There appears to be substantial cause for reception of those documents for the reason that those documents were filed in the trial court but could not be exhibited. 7. Having regard to the facts and circumstances of the case and the discussions made above, this application is allowed and the impugned ORDER :passed by the court below is set aside; consequently the application filed by the petitioner under ORDER :XLI, rule 27 of the Code of Civil Procedure is allowed to the extent that those rent receipts which related to the suit land shall be accepted by way of additional evidence.