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2011 DIGILAW 763 (JHR)

Wali Ahmad Khan v. Mahmuda Bibi

2011-08-03

PRASHANT KUMAR

body2011
ORDER Prashant Kumar, J. 1. This writ application is directed against the order dated 6.8.2008 passed by Additional District Judge-1st, Garhwa in Title Appeal No. 8 of 2003, whereby and whereunder application of petitioner/appellant under Order XLI. Rule 27 read with Section 151 of CPC for additional evidence rejected. 2. It appears that plaintiffs filed a partition suit bearing Title Partition Suit No. 5 of 1987 for partition of lands pertaining to khata Nos. 17 and 55, details of which given in Schedule A of the plaint. It further appears that the said suit was decreed. It then appears that an appeal filed against the judgment and decree, passed by the learned trial Court, before the Patna High Court Ranchi Bench. Ranchi vide FA No. 95 of 1996 R. However after amendment of pecunary jurisdiction of District Judge for entertaining appeal, the aforesaid First Appeal transferred to the Court of learned District Judge, Garhwa for disposal. Accordingly, same was renumbered as Title Appeal No. 8 of 2003. It further appears that during the pendency of aforesaid title appeal, appellant/petitioner filed an application under Order XLI, Rule 27 for adduction of additional evidence and prayed that (I) certified copy of withdrawal petition filed by Musan Khan, plaintiff in partition suit No. 1 of 1962, and (ii) certified copy of order of Additional Sub Judge, Palamau at Daltonganj dated 4.9.1964 and 28.9.1964 passed in partition suit No. 1 of 62, and (iii) summon and carbon copy of the plaint of partition suit No. 1 of 1962 issued by the Court of Sub Judge, Palamau, Daltanganj, and (iv) certified copy of khasmahal and khatiyan of khata Nos. 55 and 87 of Pratapor, P.S.-Garhwa issued by Khas Mahal Officer be taken as additional evidence. It is stated that the said documents were filed in the trial Court during the pendency of title suit No. 5 of 1987, but it had not been marked exhibits. It is submitted that the said documents are public documents being certified copy of Court proceedings, pleadings and copy of khas mahal khatiyan. It is submitted that as per Section 79 of Indian Evidence Act, there is a presumption of genuineness of certified copy. It is submitted that the said documents are public documents being certified copy of Court proceedings, pleadings and copy of khas mahal khatiyan. It is submitted that as per Section 79 of Indian Evidence Act, there is a presumption of genuineness of certified copy. It is stated that the learned appellate Court below without considering the aforesaid facts and circumstances of the case had refused to accept aforesaid documents as additional evidence, though the same are necessary for deciding the issues between the parties. 3. It is submitted by Sri Rajiv Ranjan, learned counsel for the petitioner that according to the provision of Order XLI, Rule 27, if it is shown by either of the party that any document is necessary for deciding any issue properly, the appellate Court is duty bound to allow the said party to produce documents in evidence. It is submitted by learned counsel for the petitioner that the documents stated above are necessary for giving just decision on the issue of res judicata, but the learned Court below had not considered this aspect of the matter and rejected the application of petitioner. It is submitted that the said documents were filed in the Court below itself, but unfortunately the same were not marked as exhibits. Under the said circumstance, the learned appellate Court below ought to have allowed the prayer of appellant/petitioner for producing the said documents as additional evidence for proper adjudication of issues between the parties. 4. Having heard the submission, I have gone through the record of the case. For better appreciation of the contention raised by learned counsel for the petitioner it is apposite to quote order 41 Rule 27 of the CPC: 27. 4. Having heard the submission, I have gone through the record of the case. For better appreciation of the contention raised by learned counsel for the petitioner it is apposite to quote order 41 Rule 27 of the CPC: 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 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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. It manifest from perusal of aforesaid provision that in two circumstances a party can pray from the appellate Court for adduction of additional evidence i.e. if the trial Court refused to admit evidence which ought to have been admitted or if the party seeking to produce additional evidence establish that even by exercising due diligence the said additional evidence was not within his knowledge and because of that the same could not be produced in the Court below. 5. In K.R. Mohan Reddy v. Net Work Inc. reported in (2007) 14 SCC 257 it has been held by their Lordships of Hon'ble Supreme Court at para 17 that: It is now a trite law that the conditions precedent for application of Clause (aa) of sub-rule (1) of Rule 27 of Order XLI is different from that of Clause (b). In the event the former is to be applied, it would be for the applicant to show that the ingredients or conditions precedent mentioned therein are satisfied. In the event the former is to be applied, it would be for the applicant to show that the ingredients or conditions precedent mentioned therein are satisfied. On the other hand if Clause (b) to sub-rule (1) of Rule 27 of Order XLI, CPC is to be taken recourse to, the appellate Court is bound to consider the entire evidence on record and come to an independent finding for arriving at a just decision: adduction of additional evidence as has been prayed by the appellant was necessary. 6. Thus, in view of the aforesaid decision of their Lordship of Hon'ble Supreme Court, it is incumbent upon the petitioner/appellant to fulfill the condition enumerated under Order XLI, Rule 27 of CPC. In the instant case, admittedly there is nothing on record to show that the trial Court had refused to admit the said document as evidence. Only by filing some documents, same will not be admitted in evidence rather the party, who filed the documents, required to prove it. Admittedly said documents had not been proved and exhibited by the petitioner/appellant Thus, Order XLI, Rule 27 (a) has no application in this case. It is an admitted position that petitioner/appellant filed aforesaid documents in the trial Court, thus he had knowledge regarding the existence of said document. It further appears that petitioner/appellant had not exercised due diligence and proved said documents. Thus, I conclude that petitioner/appellant is negligent in this respect. Accordingly, I find that condition precedent enumerated in Clause (1) (aa) of Order XLI, Rule 27 is also not satisfied. 7. So far the condition mentioned in sub-clause (b) of Clause (1) of Rule 27 of Order XLI, CPC is concern, it is relevant to mention that if the appellate Court is of the view that even without taking the said evidence it can pronounce judgment on all issues then appellate Court can refuse to take additional evidence. It has been held by Hon'ble Supreme Court in State of Gujrat v. Mahendrakumar Parshottambhai Desai. reported in (2006) 9 SCC 772 that: 10...though the appellate Court has the power to allow a document to be produced and a witness to be examined under Order XLI. Rule 27. CPC. the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. reported in (2006) 9 SCC 772 that: 10...though the appellate Court has the power to allow a document to be produced and a witness to be examined under Order XLI. Rule 27. CPC. the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncement of judgment in a particular way. 8. In the instant case, the learned appellate Court held that for giving decision on the issue of res Judicata, intended documents of petitioner are not very much important, because there is clear admission of contents of these documents by the parties in their pleadings. Thus, the learned appellate Court below concluded that even without these documents it can decide the issue of res judicata. Aforesaid finding of learned appellate Court is in consonance with the above law laid down by the Hon'ble Supreme Court. 9. Thus, I find no reason to interfere with the impugned order of learned appellate Court below. Accordingly, this writ application is dismissed. Application dismissed.