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2014 DIGILAW 2384 (ALL)

Jais v. Naumi

2014-08-07

ABHINAVA UPADHYA

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JUDGMENT Abhinava Upadhya,J. By means of this writ petition the petitioner has come up to this Court challenging the order of the appellate Court, by which his application under Order 41 Rule 27 CPC and under Order 11 Rule 12 & 14 CPC has been rejected. 2. A suit for cancellation of sale deed was filed by the petitioner on the ground that the said sale deed dated 19.12.2000 was not executed by him and it got executed by the defendant by playing fraud upon the petitioner as well as Registration authority. The suit was dismissed by judgment dated 30.11.2010 holding that the said sale deed was executed with full knowledge of the petitioner and upon payment of sale consideration Rs.67,000/-. Against the dismissal of the suit, petitioner preferred first appeal being first appeal No.1 of 2011. In the said appeal, petitioner filed an application for taking additional evidence on record. By the said application the petitioner claimed that one of the main point of dispute before the trial Court in the suit was that the sale deed is a void document and no consideration has passed whereas the defendant had claimed that the sale consideration was made after drawing the money from fixed deposit and therefore, the defendant respondent be directed to produce such document before the Court. The appellate court while rejecting the claim has held that additional evidence under Order 41 Rule 27 CPC can be taken if it is relevant for proper adjudication of the case, but the same has to be presented by the applicant. The applicant cannot ask for summoning of additional evidence from the defendant/respondents and rejected the application. 3. I have considered the submission of the learned Counsel for the petitioner. Order 41 Rule 27 CPC clearly provides that where the trial Court has refused to accept the evidence, the appellate Court can allow the party to produce such evidence. Order 41 Rule 27-B further provides that the appellate court requires any document to be produced or any witness to be examined to enable him to pronounce the judgment or for any other substantial cause appellate Court may allow such evidence or documents to be produced for witness to be examined. 4. Order 41 Rule 27-B further provides that the appellate court requires any document to be produced or any witness to be examined to enable him to pronounce the judgment or for any other substantial cause appellate Court may allow such evidence or documents to be produced for witness to be examined. 4. According to the aforesaid provision, it appears that other party who wants to file evidence, may make an application or if the Court may requires any additional evidence to be taken on record may direct the parties to produce the same. In the present case petitioner has made an application for a direction to the defendants respondent to produce additional evidence, which the Court refused. 5. In my view there no error in the order, which may require further consideration. The writ petition has no merit and it is accordingly, dismissed.