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2015 DIGILAW 3875 (ALL)

Pramod Kumar Saini v. Vasheer Mohd. Baina

2015-12-08

SUNEET KUMAR

body2015
JUDGMENT Suneet Kumar,J. The petition is directed against the order dated 12 August 2015 passed by Additional District and Sessions Judge F.T.C. Jhansi in Civil Appeal No. 36 of 2011 (Pramod vs. Vasheer). The applicant instituted a suit for permanent injunction which was dismissed on 30 March 2011. Aggrieved, the applicant preferred an appeal. During pendency of the appeal, an application was moved under Order 41 Rule 27 C.P.C. for bringing on record the document as additional evidence, the appellate court rejected the application by the impugned order. 2. Submission of the learned counsel for the applicant is that the document is a sale-deed which was sought to be taken on record as was not traceable despite due diligence. The appellate court noted in the impugned order that it was the case of the applicant before the trial court that the sale-deed was executed, however, the document was not brought on record during trial. It was open to the applicant to have placed on record the certified copy of the deed after obtaining it from the concerned Registrar. In these circumstances, the appellate court was of the opinion that an attempt was being made by the applicant, at appellate stage, to fill-up the lacuna. 3. Learned counsel for the applicant would submit that the document is essential to determine the controversy between the parties and the additional evidence was necessary in order to enable the appellate court to pronounce the judgment. The application seeking amendment would only state that the document that was sought to be brought on record was "missed", however, the applicant has been able to obtain a certified copy of the document, hence, is being filed under Order 41 Rule 27 of C.P.C.. 4. In Malyalam Plantations Ltd. v. State of Kerala and another, AIR 2011 SC 559 , the Supreme Court in paras 11 & 12 held as follows: "If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41, Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. (12) Adducing additional evidence is in the interest of justice. Evidence relating to subsequent happening or events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the Appellate stage in order to enable other party to remove certain lacunae present in that case." 5. It is not in dispute that the document was in the knowledge of the applicant, but no effort was made by the applicant to bring on record, before the trial court, after obtaining certified copy of the deed from the office of the Registrar. It is, therefore, not open to the applicant, at the appellate stage to make fresh allegation and call upon the other side to admit or deny the additional evidence sought to be taken on record. Such an attempt is contrary to the requirement of Order 41 Rule 27 of C.P.C., therefore, the additional evidence in order to enable the applicant to remove certain lacuna cannot be permitted. 6. In view of the above, I find no illegality, infirmity or jurisdictional error in the impugned order, this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution declines to interfere with the impugned order. The petition is, accordingly, dismissed. No cost.