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2016 DIGILAW 1074 (ORI)

Khagapati Gouda v. State of Odisha

2016-11-09

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. By this petition under Article 227 of the Constitution of India, challenge is made to the order dated 1.8.2016 passed by the learned District Judge, Koraput at Jeypore in R.F.A.No.5 of 2013. By the said order, the learned appellate court allowed the application of the appellants under Order 41 Rule 27 C.P.C. and accepted the documents as additional evidence. 2. The petitioners as plaintiffs instituted C.S.No.84 of 2011 in the court of the learned Civil Judge (Senior Divison), Koraput for declaration of right, title, interest over the suit land and other consequential reliefs impleading the opposite parties as defendants. The suit was decreed. Assailing the judgment and decree of the learned trial court, the defendants filed R.F.A.No.5 of 2013 before the learned District Judge, Koraput at Jeypore. During pendency of the appeal, the defendants filed an application under Order 41 Rule 27 C.P.C. to accept the hal R.O.R., the certified copy of Mutation Case No.399 of 1964 of the Tahasildar, Koraput and the Gazette Notification pertaining to acquisition of land as additional evidence. The plaintiffs filed objection. The learned appellate court allowed the same. 3. Heard Mr. A.R. Dash, learned counsel for the petitioners and Ms. Mishra, learned Additional Standing Counsel for the opposite parties. 4. The question does arise as to whether the appellate court can consider the application for additional evidence at any stage of the appeal? 5. Order 41 Rule 27 CPC deals with production of additional evidence in appellate court. Discretion of the appellate court to allow additional evidence is circumscribed by limitation specified in Rule 27 CPC. When the conditions laid down in the rule are satisfied, then the additional evidence can be taken. Court cannot admit additional evidence under its inherent power. 6. This Court in Sankar Pradhan v. Premananda Pradhan (dead) and others, 2015 (II) CLR 583 held thus: “7. In Parsotim Thakur and others Vrs. Lal Mohar Thakur and others, AIR 1931 Privy Council 143, it is held that under Cl.(1) (b) of Rule 27 it is only where the appellate Court “requires” it, (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but “when on examining the evidence as it stands some inherent lacuna or defect becomes apparent.” It may well be that the defect may be pointed out by a party or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing (emphasis laid). The same view was taken by this Court in the cases of Banchhanidhi Behera Vrs. Ananta Upadhaya and others, AIR 1962 Orissa 9 and State Bank of India Vrs. M/s. Ashok Stores & others, 53 (1982) C.L.T. 552.” (emphasis laid) 7. In view of the authoritative pronouncement of this Court in the case of Sankar Pradhan (supra), the order dated 1.8.2016 passed by the learned District Judge, Koraput at Jeypore in R.F.A.No.5 of 2013 is quashed. The learned appellate court shall consider the application for additional evidence at the time of hearing of the appeal. Since the appeal is of the year 2013, the learned appellate court shall dispose of the same within a period of three months. 8. Accordingly, the petition is allowed.