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2015 DIGILAW 2901 (ALL)

Anil Kumar Saxena v. Additional District Judge

2015-09-15

MANOJ KUMAR GUPTA

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JUDGMENT Manoj Kumar Gupta, J. Heard counsel for the petitioner and Sri Bhanu Bhushan Jauhari, who has appeared on behalf of plaintiff-respondent and has made a statement before the court that he does not intend to file any counter affidavit and the matter be decided finally. 2. The petitioner, aggrieved by an order dated 24.8.2015 passed by Additional District Judge, Court No. 6, Bareilly, in SCC Revision No. 39 of 2014, whereby the application filed by the petitioner under Order 41, Rule 27 read with Section 151 CPC has been rejected, has approached this Court assailing its validity. It is submitted by learned counsel for the petitioner that the evidence, which was sought to be adduced, in the revision filed under Section 25 of the Provincial Small Cause Courts Act, 1887 was also sought to be brought on record before the trial court. However, the trial court by order dated 5.7.2004, rejected the said application and revision preferred by the petitioner against the said order, being Civil Revision No. 35 of 2004 was dismissed by order dated 30.7.2004. It is the same evidence, which the petitioner wanted to bring on record before the revisional court with a specific plea that the trial court had erred in rejecting the application filed by the petitioner in that regard. The revisional court by impugned order refused to allow the application for additional evidence, on the sole ground that the trial court by order dated 5.7.20004 had refused to admit such evidence on record and the revision preferred against the same, has been dismissed by the revisional court and the aforesaid orders have attained finality. 3. Learned counsel for the petitioner submitted that under Order 41, Rule 27 CPC, one of the grounds on which additional evidence can be permitted to be adduced is that the court from whose decree the appeal has been preferred has refused to admit evidence which ought to have been admitted. It is urged that the application has been rejected by the revisional court on the sole ground that similar applications moved before the trial court were rejected and the orders passed by the trial court were affirmed in revision. Thus, the application has not been rejected on merits, but only on the ground of its non-maintainability. It is, thus, urged that the revisional court has failed to exercise the jurisdiction vested in it. 4. Thus, the application has not been rejected on merits, but only on the ground of its non-maintainability. It is, thus, urged that the revisional court has failed to exercise the jurisdiction vested in it. 4. It is not disputed by the learned counsel for the parties that the revisional court exercising power under Section 25 of the Provincial Small Cause Courts Act, 1887 is invested with the power to admit additional evidence. Even if the provisions of order 41, Rule 27 do not, in terms, apply to a revision preferred under Section 25 of the Provincial Small Cause Courts Act, 1887, but the principles laid down thereunder, are to be applied in considering an application for admitting additional evidence. Thus, in case, the trial court has refused to admit evidence on record erroneously, it is open to a party to move an appropriate application in that regard at the revisional stage. The application can not be dismissed on the ground that the trial court had refused to admit such evidence on record. The application has to be considered independently on its own merit. 5. It is not disputed by learned counsel for the respondent that the revision preferred by the petitioner against the order of the trial court refusing to admit the evidence on record was rejected on the sole ground of its maintainability. 6. In such view of the matter, the impugned order passed by the revisional court dated 24.8.2015, can not be sustained and is hereby setting aside. The application filed by the petitioner under Order 41, Rule 27 CPC, shall now be considered by the revisional court independently, on its own merit, without being influenced by the fact that the trial court by order dated 5.7.2004 had rejected similar application. The court has to apply its mind regarding the correctness of the view taken by the trial court, in rejecting the application and whether the evidence is required to enable the court to pronounce judgment. 7. It is desirable that after taking decision on such application, the proceedings in the revision be taken to their logical end expeditiously, without granting unnecessary adjournment to the parties. 8. The petition stands disposed of accordingly.