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Rajasthan High Court · body

2012 DIGILAW 2060 (RAJ)

Ram Karan v. Nathu Lal

2012-10-03

BELA M.TRIVEDI

body2012
JUDGMENT 1. - Heard the learned counsel Mr Gaurav Jain for the petitioner-plaintiff-appellant. Nobody appears for the respondents-defendants though duly served. 2. The present petition has been filed by the petitioner-plaintiff-appellant challenging the order dated 23.7.08 passed by the Addl. District & Sessions Judge, Sambharlake (hereinafter referred to as 'the appellate court'), whereby the appellate court has dismissed the application of the petitioner for taking the additional documents on record under Order 41, Rule 27 of CPC. 3. It appears that the plaintiff-petitioner had filed the suit seeking permanent injunction in respect of the suit plots, which was partly decreed by the trial court vide its judgment and decree dated 14.8.98. Being aggrieved by the said judgment and decree the petitioner-plaintiff has filed the appeal before the appellate court. During the pendency of the appeal, the petitioner filed an application under Order 41, Rule 27 of CPC for taking the documents namely the copy of reply filed by the State Government in one PIL and one annexure annexed to the said reply. The said application has been dismissed by the Apex Court vide the impugned order, against which the present petition has been filed. 4. It has been submitted by the learned counsel for the petitioner that the appellate court has dismissed the application of the petitioner on the ground that the documents sought to be produced were of the date after the passing of the decree in question and, therefore, could not be taken on record. The learned counsel relying upon the decision of the Apex Court in the case of North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by L.Rs., AIR 2008 SC 2139 and in case of Wadi v. Amilal & Ors., 2002 WLC (SC) Civil 726 has submitted that the additional evidence could be produced at the appellate stage with regard to the documents which was not available during the pendency of the appeal. 5. Having regard to the submissions made by the learned counsel for the petitioner and to the impugned order passed by the trial court, it appears that the application of the petitioner has been rejected by the appellate court only on the ground that the documents sought to be produced were of the date subsequent to the date of passing of the decree in question. It is pertinent to note that under Order 41, Rule 27 of CPC, the appellate court can permit the party to produce additional evidence if the party seeking to produce the 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 at the time when the decree appealed against was passed. In the instant case, the document sought to be produced by the petitioner is the copy of reply filed by the State Govt. in one petition before the High Court, which was of the date subsequent to the date of passing of the decree in question and, therefore could not have been filed by the petitioner before the trial court. Even otherwise, the present petition having not been contested by the respondents, it is presumed that the respondents have no objection if the petition is allowed. 6. Accordingly the writ petition deserves to be allowed. The impugned order dated 23.7.08 passed by the appellate court is set aside. The documents sought to be produced by the petitioner-appellant are permitted to be produced by way of additional evidence. The petition stands allowed accordingly.Petition allowed. *******