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2014 DIGILAW 1417 (MP)

Mohar Singh v. Bhanwar Singh

2014-11-05

SUJOY PAUL

body2014
ORDER 1. Heard. 2. This civil revision is directed against the judgment passed by Additional District Judge, Morena in Civil Appeal No.2B/08. The judgment was delivered on 17.9.2009. The petitioner filed a Civil Suit No.3B/2007 for recovery of Rs.11,600/-. The said civil suit was rejected by the trial Court. The appellate Court in para 10 of the judgment framed two issues :- i) Whether the application filed under Order 41 rule 27 CPC is acceptable ? ii) Whether the judgment and decree is perverse and liable to be interferred with ? 3. Shri R.K.Jain, learned counsel for the petitioner submits that the Court below has erred in rejecting the said application preferred under Order 41 rule 27 CPC. He submits that if said application is allowed, the documents/evidence filed with the said document will clearly substantiate the case of the petitioner. 4. I have heard the learned counsel for the petitioner at length. 5. The pivotal question is whether the Court below has erred in rejecting the application under Order 41 rule 27 CPC ? The said application dated 14.9.2009 shows that the petitioner intended to bring the evidence of certain more witnesses on record. These are Ku.Asha, Smt. Munnidevi and Ramesh. The appellate Court rejected the said application on the ground that the petitioner has not established any due diligence as to why he could not place those evidence on record before the trial Court. The question is whether such finding is in consonance with law ? 6. Clause (aa) of Order 41 Rule 27 reads as under :- “(aa). 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 by him at the time when the decree appealed against was passed.” 7. A bare reading of aforesaid provision makes it clear that a party seeking production of additional evidence needs to establish that despite due diligence such evidence was either not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when decree was passed. The application dated 14.9.2009 does not contain any averment/reason which establishes due diligence of the petitioner. The application dated 14.9.2009 does not contain any averment/reason which establishes due diligence of the petitioner. Thus, no fault can be found in the finding of appellate Court in para 11 of the judgment whereby application under Order 41 rule 27 was rejected. The said finding is in consonance with the provisions of ‘(aa)’ aforesaid. 8. So far the merits of the matter are concerned, both the Courts below have given concurrent findings of fact which are not shown as perverse or contrary to record. Thus, no case is made out for interference in the revisional jurisdiction of this Court. 9. Petition fails and is hereby dismissed.