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2011 DIGILAW 911 (JHR)

Shadab Khan @ Bittu Khan v. Md. Minhaj Alam

2011-09-21

N.N.TIWARI

body2011
ORDER In this writ petition, the petitioners have prayed for setting aside the order dated 8.2.2007 passed by learned 5th Additional District Judge, Giridih in Title Appeal no.100 of 1988, whereby learned lower appellate court has allowed the respondents' petition for additional evidence, filed under Order-41 Rule-27 of the Code of Civil Procedure. 2. The grievance of the petitioners is that the said petition has been allowed ignoring the requirement of Order 41 Rule-27 CPC. The appellants-petitioners failed to show that in spite of exercising due diligence, that evidence was not within their knowledge or could not, after exercise of due diligence, be produced by them, in the trial court. Learned court below overlooking the requirement of law has allowed the petitioners' petition. 3. Learned counsel, appearing on behalf of the petitioners, submitted that the impugned order is illegal and wholly without jurisdiction. The same has been passed without taking into consideration that the appellants failed to make out and establish that he had exercised due diligence, but the said document, which is sought to be produced by way of an additional evidence, was not within their knowledge or could not be produced by them in course of trial. 4. The respondents, on the other hand, opposed the petition. It has been submitted that the order of learned court below is sound, legal and based on speaking reasons. Learned court below has found that the document was in the possession of Jahur Mian-defendant no.1 and he did not hand over the same during his life time. After his death, the said document could be procured from his legal heirs and thereafter application was filed before learned lower appellate court seeking leave to produce the said document as an additional evidence. The said document is an important document and, in fact, it was the basis of the suit and the same is required to be produced for the purpose of enabling it to pronounce judgment for the ends of justice. Learned court below has considered the same and allowed the petition by a well reasoned order. 5. I have heard learned counsel for the parties and considered the submissions and materials on record. I also perused the impugned order. 6. Learned court below has considered the same and allowed the petition by a well reasoned order. 5. I have heard learned counsel for the parties and considered the submissions and materials on record. I also perused the impugned order. 6. The impugned order has been mainly challenged on the ground that the order has been passed without recording the required reason that the due diligence was exercised by the appellants during the trial but in spite of due diligence, the document could not be produced before the court below. 7. Mr. R.N.Sahay, learned counsel, appearing on behalf of the petitioners, referred to and relied on a decision of the Supreme Court in Karnataka Board of Wakf Vrs. Government of India & Ors.[2004(3) J.L.J.R.136] and submitted that the Supreme Court has held that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment. He referred to another decision of the Patna High Court in Ram Kumar Mahto & Anr. Vrs. Ram Subhag Rai & Ors.[1997(1) PLJR 908] and submitted that when no effort was made to file the insurance policy or certificate before the tribunal to show that it was covered by an insurance policy, the prayer to accept the insurance certificate as additional evidence, was not accepted. 8. Mr. P.N.Rai, learned counsel, appearing on behalf of the respondents, on the other hand, submitted that the court was fully satisfied from the materials on record that the document sought to be produced by way of additional evidence on record is necessary to enable it to pronounce judgment. Once the court is satisfied that the said document is the basis of the suit and the same is required to enable it to pronounce judgment, or for any other substantial cause, it is well within the jurisdiction of the appellate court to allow additional evidence under Order XLI Rule 27(1)(b) CPC. He referred to and relied on the decision of the Constitution Bench of the Supreme Court rendered in K. Venkataramiah Vrs. He referred to and relied on the decision of the Constitution Bench of the Supreme Court rendered in K. Venkataramiah Vrs. Seetharama Reddy & Ors.[AIR 1963 Supreme Court 1526], wherein it has been held that the appellate court has the power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment”, but also for “any other substantial cause”. Even though the court finds that it is able to pronounce judgment on the state of record as it is, and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment. If it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner, such a case will be one for allowing additional evidence for any other substantial cause under Rule 27(1)(b) of the Code. He also referred to another decision of the Supreme Court in Mahavir Singh & Ors. Vrs. Naresh Chandra & Anr.[AIR 2001 Supreme Court 134], wherein it has been held by the Supreme Court that one of the conditions for allowing a party to produce additional evidence is that 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 expression “to enable it to pronounce judgment” contemplates a situation when the appellate court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of court delivering it . 9. Learned counsel for the respondents submitted that in the instant case, the said document has been held to be very basis of the suit and is necessary for pronouncing judgment by learned court below. 10. Having considered the said submissions and the case laws cited by learned counsel for the parties,I find that the document, which is sought to be produced, is held to be the basis of the suit. At the relevant time the document was in the custody of the defendant no.1-Jahur Mian and the same could not be procured from his custody while the suit was pending in the trial court. At the relevant time the document was in the custody of the defendant no.1-Jahur Mian and the same could not be procured from his custody while the suit was pending in the trial court. After the death of Jahur Mian, the appellants could procure the same from their legal heirs and sought to produce the same as an additional evidence. Learned court further found from the written statement that the defendant nos. 1 to 18 have admitted the case of the plaintiffs that they are purchasers of the suit land from Jahur Mian and the same is not a surprise for them. Learned court below has observed that the same document is required for pronouncing judgment. 11. Learned court below has allowed the appellants to bring the said additional evidence on record after due consideration of the provision of law and satisfaction of the requirement thereof. 12. It is well established principle that if the court requires any document enabling it to pronounce judgment or for any other substantial cause, it may allow such evidence or document to be produced or witness to be examined. The said power is not dependant on the fulfillment of conditions as required under Order XLI Rule 27(1)(b) of the CPC. 13. Even the decisions cited by learned counsel for the petitioners do not prohibit the court from allowing a party to adduce additional evidence, if the evidence is required for the purpose of pronouncing proper and just judgment. 14. In the instant case, learned court below has considered and found that the document sought to be produced as additional evidence is the basis of the suit and the same is required for enabling it to pronounce judgment. The said observation attracts one of the conditions for allowing a party to produce additional evidence as envisaged under Rule 27(1)(b) of Order XLI of CPC. 15. I find no error or any ground made out to interfere with the impugned order. This writ petition is, accordingly, dismissed.