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2007 DIGILAW 1577 (PAT)

Dharmendra Paswan v. State Of Bihar

2007-09-26

CHANDRAMAULI KR.PRASAD

body2007
Judgment 1. Plaintiff respondent 1st Party petitioner aggrieved by the order dated 27.5.2006 passed by the Additional District Judge, Fast Track Court, Munger in M.T.A. No.6 of 2004 directing to submit additional documents in evidence has preferred this application. 2. Short facts, giving rise to the present application are that plaintiff filed Title Suit No. 49 of 2000 for declaration that the order dated 20th of December, 1994 is illegal, inoperative and not binding on the plaintiff and further the appointment of the plaintiff was made on the basis of genuine recommendation. Munsif 1st, Munger by judgment and decree dated 28th of November, 2003 decreed the suit and held that order dated 20th of December, 1994 passed by defendant no.6 is illegal inoperative and not binding on the plaintiff and further appointment and regularisation of service of the plaintiff was made on valid basis. It also ordered to permit the plaintiff to join his service with all facilities including the pay from 20th of December, 1994. 3. Aggrieved by the same the State of Bihar, the District Magistrate, Munger the District Welfare Officer, Munger i.e. defendant Nos. 1, 2 and 4 preferred appeal which was registered as M.T.A. No. 6 of 2004. 4. In the said appeal appellants preferred an application under Order XLI Rule 27 (1) (b) of the Code of Civil Procedure for adducing the following documents as additional evidence: (i) "The authenticated letter no. 386 dt. 20.12.1994 issued by the Dy. Director of Welfare, Bhagalpur addressed to District Welfare Officer, Munger along with the report of Dy. Director Welfare, Bhagalpur. (ii) Authenticated order sheet dt. 3.3.2000 as to dismissal of service of respondent Dharmendra Kumar." 5. It is relevant here to state that no cause at all was shown for non-production of the aforesaid documents, but the defendants-appellants prayed for allowing admission of additional documents on the ground that the same is required to be produced to enable the Appellate Court to pronounce "Judgment for substantial cause" 6. Plaintiff-respondent filed rejoinder to the aforesaid application and contended that although the appellants had pleaded about the documents dated 20.12.1994 and 3.3.2000 in their written statement, but did not bring that on record. It also pleaded that in view of the findings of the court below, they cannot be permitted to adduce additional evidence. 7. Plaintiff-respondent filed rejoinder to the aforesaid application and contended that although the appellants had pleaded about the documents dated 20.12.1994 and 3.3.2000 in their written statement, but did not bring that on record. It also pleaded that in view of the findings of the court below, they cannot be permitted to adduce additional evidence. 7. By reason of the impugned order, the court below directed for production of the following documents a additional evidence: (i) The documents regarding the appointment of the plaintiff. (ii) The documents regarding the regularisation of service of plaintiff issued vide Memo No. 62 dt. 23.2.1994. (iii) Documents regarding the removal of the service of the plaintiff. (iv) Documents regarding the direction of the State Government by v/hich appointment of daily wages basis was prohibited vide Memo No. 1232 dt. 3.3.2000. 8. In the opinion of the court, documents aforesaid were essential for just decision of the suit. 9. Mr. Pramod Kumar Sinha appearing on behalf of the petitioner submits that even if the documents are required for just decision of the suit the court below had no jurisdiction to admit additional evidence in the absence of any finding that despite due diligence said documents were not produced by the defendants. In support of the submission he has placed reliance on a judgment of the Supreme Court in the case of State of Gujarat & anr Vs. Mahendra Kumar Parshottambhai Desai (AIR 2006 Supreme Court 1864) and my attention has been drawn to the following passage from paragraph no. 12 of the judgment which reads as follows: "There was no plea that the documents sought to be produced by way of additional evidence could not be produced earlier desipte efforts diligently made by the State or that such evidence was not within its knowledge. In fact, no ground whatsoever was made out for adducing additional evidence, and the sole purpose for which the State insisted upon adducing additional evidence was to persuade the Court to accept the point of view urged on behalf of the State, since the evidence on record did not support the case of the appellants/State. Having considered all aspects of the matter we are satisfied that the High Court rightly rejected the application filed by the State for adducing additional evidence at the stage of appeal which was intended only to fill up the lacunae in its case." 10. Having considered all aspects of the matter we are satisfied that the High Court rightly rejected the application filed by the State for adducing additional evidence at the stage of appeal which was intended only to fill up the lacunae in its case." 10. He points out that in the present case also there is no plea that the documents sought to be produced by way of additional evidence could not be produced earlier despite efforts diligently made by the defendants-appellants. 11. JC to S.C. XVI, however, submits that those documents were necessary for just decision of the suit and as such the court exercised its power under Order XLI Rule 27(1) (b) of the Code of Civil Procedure. He pointed out that not only the documents sought to be adduced as additional evidence have been directed to be produced but other documents also. He pointed out that the defendants-appellants prayed for production of only two documents whereas the lower Appellate Court had directed production of four documents. 12. Having appreciated the rival submission. I do not find any substance in the submission of Mr. Sinha and the authorities relied on is clearly distinguishable. 13. Order XLI Rule 27 (1) (b) of the Code of Civil Procedure which is relevant for the purpose reads as follows: Order XLI Rule 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- X X X X (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." 14. From a plain reading of Order XLI Rule 27 (1) (b) of the Code of Civil Procedure, it is evident that the Appellate Court can direct production of a document when it requires such document to enable it to pronounce judgment or for any other substantial cause. Here the lower Appellate Court had found that the documents referred to in its order are necessary for the just decision of the suit. Here the lower Appellate Court had found that the documents referred to in its order are necessary for the just decision of the suit. I am of the opinion that when the court below found the document necessary for the just decision of the suit and it being possessed of such powers, same is not fit to be interfered with by this Court in exercise of revisional jurisdiction. The power to allow additional documents for substantial cause in my opinion would obviously include for just decision of the case. 15. Now, referring to the authority of the Supreme Court in the case of State of Gujarat & anr Vs. Mahendra Kumar Parshottambhai Desai (supra) same is clearly distinguishable. In the said case, Appellate Court declined to exercise its jurisdiction holding that the application was filed by the State for adducing additional evidence only to fill up lacunae in its case. Here in the present case the court below exercised its power for just decision of the case. In the result. I do not find any merit in the application and it is dismissed accordingly but without any order as to costs.