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2014 DIGILAW 1222 (PAT)

Sita Ram Chaudhary v. Mithilesh Kumar Singh

2014-12-11

HEMANT KUMAR SRIVASTAVA

body2014
ORDER : Heard learned counsel for the petitioners as well as learned counsel for the respondents. 2. Petitioners are aggrieved by the order dated 16.02.2008 passed by learned Additional District Judge, Fast Track Court-IV, Gaya in Title Appeal No. 50 of 2006/53 of 2006 by which he refused to permit the petitioners to file some documents as additional evidence under Order 41 Rule 27 of the C.P.C. 3. It would appear from perusal of the impugned order that judgment and decree was passed in Title Suit No. 45 of 2002 on 21.09.2006 and against the aforesaid judgment and decree, Title Appeal No. 50 of 2006/53 of 2006 was filed. It would also appear from the impugned order that after pronouncement of judgment and decree in Title Suit No. 45 of 2002, Sub Divisional Officer, Tekari passed an order under Section 144 of the Cr.P.C. and similarly, this court passed order in Cr. Misc. No. 3372 of 2007. The petitioners prayed before the appellate court to mark exhibit of certified copy of order of Sub Divisional Officer, Tekari as well as certified copy of order passed by this court in above stated criminal miscellaneous case but the learned appellate court rejected the above stated prayer on the ground that the order passed in criminal case does not have any affect on the civil matter. 4. Admittedly, the relevancy and admissibility are two different things. A document may be admissible in evidence but it is not necessary that the said document should be relevant for settling the disputes and, therefore, the learned appellate court has committed error in holding that the proposed documents were not admissible in evidence. Moreover, Order 41 Rule 27 of the C.P.C. says that the appellate court may take additional evidence, if 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. Admittedly, in the instant case, the Sub Divisional Officer, Tekari as well as this court passed orders after pronouncement of judgment and decree in Title Suit No. 45 of 2002. Admittedly, in the instant case, the Sub Divisional Officer, Tekari as well as this court passed orders after pronouncement of judgment and decree in Title Suit No. 45 of 2002. Therefore, it is apparent that before pronouncement of judgment and decree in Title Suit No. 45 of 2002, the aforesaid documents were not in existence nor in possession of the petitioners and as soon as the aforesaid orders were passed and the certified copy of aforesaid orders came into possession of the petitioners, they prayed before the appellate court to take the aforesaid documents as additional evidence. 5. Therefore, in view of the aforesaid facts and circumstances, I am of the opinion that the learned appellate court wrongly refused to take the aforesaid documents as additional evidence in Title Appeal No. 50 of 2006/53 of 2006. Thus, this writ petition is allowed and accordingly, the order dated 16.02.2008 passed in Title Appeal No. 50 of 2006/53 of 2006 is hereby set aside. The matter is remitted back to the Additional District Judge, Fast Track Court-IV, Gaya with direction to him to permit the petitioners to adduce the above stated documents as additional evidence and mark the aforesaid documents as exhibits in accordance with law and furthermore, give an opportunity to respondents to rebut the aforesaid documents, if they needed and decide the appeal as early as possible in accordance with law.