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2008 DIGILAW 1159 (JHR)

Mohan Toppo v. Sanjay Munda

2008-09-25

M.Y.EQBAL

body2008
ORDER M.Y. Eqbal, J. 1. This application under Article 227 of the Constitution of India is directed by the petitioners who are plaintiffs/appellants in the Court below against the order dated 04.4.2005 passed in Title Appeal No. 47 of 2003 whereby learned Additional Judicial Commissioner, Ranchi rejected the application filed by the appellants/petitioners under Order 41 Rule 27 C.P.C. for adducing some documents by way of additional evidence. 2. Plaintiffs/petitioners filed aforementioned appeal against the decree passed by the trial Court dismissing the suit. During the pendency of the appeal, petitioners/appellants filed application under Order 41 Rule 27 C.P.C. for adducing certain documents (rent receipts) by way of additional evidence. 3. According to the petitioner, during search of other documents, suddenly found these rent receipts of the suit land which were not within their knowledge. The said application was opposed by the respondents. The Court of appeal below rejected the application and refused the prayer on the ground inter alia that those documents were not find in the suit and that the rent receipts sought to be adduced by way of additional evidence has not been filed alongwith application. 4. It is well settled that one important condition for allowing production of additional evidence is that appellate Court requires such documents so as to enable it to pronounce the judgment and to decide the rights of the parties. 5. The Court of appeal below while rejecting the application has not gone into the question whether rent receipts sought to be adduced by way of additional evidence is necessary for proper and effective decision of the matter in controversy between the parties. As a matter of fact, the Court of appeal below ought to have considered the application for additional evidence at the time of hearing of the appeal on merit. At that stage, if the Court after considering the documents thinks it proper to accept those documents as an additional evidence then appropriate order is to be passed. 6. In the case of State of Rajasthan v. T.N. Sahani and Ors. (2001) 2 JCR 72 SC the aforesaid principle has been enunciated in paragraph 4 of the decision which reads as under: 4. 6. In the case of State of Rajasthan v. T.N. Sahani and Ors. (2001) 2 JCR 72 SC the aforesaid principle has been enunciated in paragraph 4 of the decision which reads as under: 4. It may be pointed out that this Court, as long back as in 1963 in K. Venkataramiah v. Seetharama Reddy [1964]2SCR35 , pointed out the scope of unamended provision of Order XLI, Rule 27(c) that though there might well be cases where even though the court found that it was able to pronounce the judgment on the state of the record as it was, and so, it could not require additional evidence to enable it to pronounce he judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. This is entirely for the court to consider, at the time of hearing of the appeal on merits, whether the documents which are sought to be filed as additional evidence, need to 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, amendment 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. Had the court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner, it would have allowed the same, if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view, would be inappropriate. Further, the reason given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly set aside. The application is restored to its file. The High court will now consider the appeal and the application and decide the matter afresh in accordance with law. 7. In the facts and circumstances of the case, I am of the opinion that the Court of appeal below has not correctly decided the application filed under Order 41 Rule 27 C.P.C. The impugned order, therefore, can not be sustained in law. 8. For the reasons aforesaid, this writ application is allowed and the impugned order is set aside. 7. In the facts and circumstances of the case, I am of the opinion that the Court of appeal below has not correctly decided the application filed under Order 41 Rule 27 C.P.C. The impugned order, therefore, can not be sustained in law. 8. For the reasons aforesaid, this writ application is allowed and the impugned order is set aside. The Court below is directed to consider the application filed for adducing additional evidence alongwith the documents that shall be produced by the petitioner at the time of hearing of the appeal in the manner as indicated in the aforesaid decision of the Supreme Court. Application allowed.