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2004 DIGILAW 771 (ALL)

Jayanti Prasad Sharma v. State of U. P.

2004-04-07

ANJANI KUMAR

body2004
JUDGMENT : Anjani Kumar, J. Heard learned Counsel for the parties. 2. This writ petition is directed against an order dated 2nd January, 2004, passed by the appellate court admitting a document as additional evidence in exercise of powers under Order XLI, Rule 27. 3. Learned Counsel for the Petitioner, Sri M.D. Mishra, has submitted by referring a provision under Order XLI, Rule 27 which is quoted below that the case of the applicant for additional evidence cannot be said to be covered by either Clause (a) or (aa) of Sub-rule (1) of Rule 27 of Order XLI. From reading of the order passed by the appellate court it is apparent that the Court has exercised power vested under Clause (b) of Sub-rule (1) of Rule 27 of Order XLI. 4. It is then submitted that no reasons have been assigned by the appellate court while admitting the aforesaid evidence. A perusal of the order demonstrates that this is not correct. The Court has categorically stated as under: Appellant and Respondent are claiming their rights over the disputed property through apparent sale deed. For the just decision of the case there is need to take the document on record. Hence application is liable to be allowed. 5. On the above finding it cannot be said either the appellate court has not applied its mind or the appellate court has not given reasons. 6. Learned Counsel for the Petitioner has relied upon a decision of the Apex Court decided on 12.10.2000 State of Rajasthan v. T. Sahani 2001 (1) AWC 333 (SC) in Civil Appeal No. 5863 of 2000, wherein relying upon another decision the Apex Court ruled: This is entirely for the Court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its Judgment in a more satisfactory manner. If that be so, it is always open to the Court to look into the documents and for that purpose amended provision of Order XLI, Rule 27 (b), CPC can be invoked. So the application under Order XLI, Rule 27 should have been decided along with the appeal. 7. If that be so, it is always open to the Court to look into the documents and for that purpose amended provision of Order XLI, Rule 27 (b), CPC can be invoked. So the application under Order XLI, Rule 27 should have been decided along with the appeal. 7. Considering the aforesaid law laid down by the Apex Court, learned Counsel of the Petitioner has submitted that since the appeal has not been decided before the order of 2nd January, 2004, the order is illegal on this ground alone. The order referred to above passed by the appellate court dated 2nd January, 2004, concludes with the sentence "Fix 28.1.2004 for arguments." This clearly demonstrates that the process of hearing shall commence with the filing of application by the Appellant and will conclude when the arguments are heard and decided. 8. Sri Mishra then pointed out that the appellate court has not specified the points to which the evidence is to be confined, therefore, there is violation of Rule 29 of Order XLI. In view of the Judgment referred to above the provisions of Order XLI, Rule 29 are not attracted. 9. In my opinion this writ petition is devoid of any merit and is accordingly dismissed.