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2016 DIGILAW 497 (ALL)

Thakur Prasad v. Beni Prasad

2016-02-10

SUNEET KUMAR

body2016
JUDGMENT Suneet Kumar, J. – The appellant-applicant has approached this Court assailing the orders passed by the courts below rejecting the application under Order 41, Rule 27CPC seeking to bring on record certain documents to show that the property for which the suit for eviction has been instituted is 3A/246 instead of 3A/248. 2. The courts below rejected the application for the reason that the conditions required under Order 41, Rule 27 for taking additional evidence on record was neither pleaded nor proved. 3. The submission of the learned counsel for the applicant is that when the applicant applied to the Municipal Authority, it is only then the documents were supplied mentioning that the property 3A/248 is the property belonging to some other person, whereas, the property in dispute pertains to 3A/246. The applicant has not sought any amendment in the written statement but only seeks to bring the additional evidence on record. The courts below would record that ingredient of Rule 27 has neither been pleaded nor proved, hence, the additional evidence cannot be taken on record. In support of his submission, learned counsel placed reliance upon 2008 (3) AWC 2645 (SC) 2645; Eastern Equipment and Sales Ltd v. Ing. Yash Kumar Khanna and 2010(1) AWC 598 (SC); Shyam Gopal Bindal and others v. Land Acquisition Officer and another. 4. In rebuttal Sri Atul Dayal, learned counsel appearing for the respondent would submit that the appellate court has recorded that the purpose for seeking amendment is only to delay the matter, whereas, two appeals are already pending which are being heard together and in one appeal, the documents that is sought to be brought on record is already on record. Further, it is sought to be urged that the suit for eviction was instituted by stating the number of premises and the boundaries thereof were detailed, the applicant is not disputing the boundaries, the number of the premises which is being sought to be brought on record by additional evidence is the property situated on the west boundary of the disputed property. 5. 5. The Supreme Court in State of Karnataka and another v. K.C. Subramanya and others; 2014(13) SCC 468 held that Order 41, Rule 27 (1)(a) is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum. It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specifically incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed to be done at his leisure or sweet will. 6. Having due regard to the facts and circumstances of the case, it is evident that the suit property is identifiable by the boundary. The record sought to be brought on record as additional evidence is extracts of revenue entries which being public document was always available, therefore, under the garb of Order 41, Rule 27 , the applicant seeks to remove the lacuna during trial. This court under Article 227 of the Constitution of India would not sit in appeal over the finding returned by the courts below. 7. Learned counsel for the applicant failed to point out any illegality, infirmity or jurisdictional error in the impugned orders. 8. The petition being devoid of merit is accordingly dismissed. 9. No order as to costs. Petition dismissed.