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Rajasthan High Court · body

1999 DIGILAW 710 (RAJ)

Abdul Gani v. Shahzad

1999-05-18

AMRESH KUMAR SINGH

body1999
Honble SINGH, J.–Heard the learned counsel for the petitioner and the learned counsel for the non-petitioner. (2). This revision petition is directed against the order dated 23.3.1999 whereby an application filed by the petitioner- plaintiff under Order 41, Rule 27 C.P.C. was rejected. The learned counsel for the petitioner has submitted that the predecessors of the defendant-respondent had moved an application before the Municipal Council on 19.7.1962 seeking permission for certain construction work and that application had been rejected. It is further submitted by him that the plaintiff moved an application before the Municipal Council for obtaining the copies of certain documents present on the file of that application but the certified copes of the documents were not supplied to him. He, therefore, moved an application under Order 41, Rule 27 C.P.C. before the learned first appellate court praying that the record of the Municipal Council be summoned. The application moved by the plaintiff-petitioner was opposed by the defendant- respondent on the ground that no application had been filed before the trial court and, therefore, the application under Order 41, Rule 27 C.P.C. was not maintainable. It is further submitted by the learned counsel for the petitioner that by letter dated 17.4.1999 (which was produced before the court for inspection), the Municipal Council has admitted that an application had been received but the relevant file was not deposited in the record room of the Municipal Council and, therefore, copies of the desired documents could not be supplied. In these circumstances, the learned counsel for the petitioner has prayed that this revision petition be admitted and the impugned order be quashed and set aside and the first appellate court be directed to call for the record of the Municipal Council in the interest of justice to peruse the documents filed in that file. (3). The learned counsel for the non-petitioner no. 1 and 2 has submitted that this revision petition is not maintainable as the application moved by the petitioner before the lower court was not an application under Order 41, Rule 27 C.P.C. and the impugned order was quite correct. Rule 27 of Order 41 C.P.C. reads: ``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. Rule 27 of Order 41 C.P.C. reads: ``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 (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 not withstanding the exercise of due 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. (4). A bare perusal of Rule 27 of Order 41 C.P.C. shows that the evidence which is sought to be produced before the appellate court under this Rule as well as the evidence which the court required to be produced before it for the just decision of the case must be shown to be in existence. Besides such evidence must be shown to be relevant and admissible. Unless any evidence is in existence and shown to be relevant and admissible, the powers gives by Rule 27 of Order 41 C.P.C. cannot be exercised for the simple reason that this Rule does not empower the appellate court to conduct any inquiry or investigation about the existence of any evidence. In the instant case, the documents in respect of which the application had been filed by the petitioner before the first appellate court, were not produced as requi- red by Rule 27 of Order 41 C.P.C. The documents are alleged to be in the file of a certain application which according to the petitioner had been moved before the Municipal Council for seeking permission for construction. The file containing the aforesaid documents is reported to be not traceable in the record room of the Municipal Council and, therefore, the certified copies of any document have not been supplied to the petitioner. The file containing the aforesaid documents is reported to be not traceable in the record room of the Municipal Council and, therefore, the certified copies of any document have not been supplied to the petitioner. In other words, the petitioner did not file any document worth the name alongwith his name purporting to be application under Order 41, Rule 27 C.P.C. In these circumstances, the power under Rule 27 of Order 41 C.P.C. could not be exercised by the learned District Judge. The impugned order dated 23.3.1999, therefore, does not appear to suffer from any such infirmity or lack of exercise of jurisdiction as may call for interference by this Court u/s. 115 C.P.C. (5). In cases, where a document which a party wants to produce in evidence is not available to the party the proper course for the party would be to take necessary steps according to law for the production of the document in the Court or for production of the certified copies of the same if the certified copies can be produced as secondary evidence u/Sec. 65 of the Evidence Act. Before an application is moved under Rule 27 of Order 41 C.P.C., the document which is sought to be produced must be available to the party moving application under Order 41, Rule 27 C.P.C. (6). For the reasons mentioned above, the revision petition deserves to be dis- missed at the admission stage and is hereby dismissed. But, nothing contained in this order shall come in the way for moving the application which may be filed for better particulars or for discover of any document in accordance with law.