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2016 DIGILAW 54 (ORI)

Maheswar Pradhan v. Sushama Nayak

2016-01-21

A.K.RATH

body2016
JUDGMENT : A.K. Rath, J. 1. Assailing the order dated 2.2.2015 passed by the learned Addl. District Judge, Bhanjanagar in RFA No. 7 of 2013, the present application has been filed under Article 227 of the Constitution of India. By the said order, learned lower appellate court dismissed the application filed by the appellant under Section 151 CPC to admit the agreement to sale as additional evidence. 2. Opposite parties as plaintiffs instituted C.S No.40 of 2012 in the court of learned Civil Judge (Senior Division), Bhanjanagar for a decree directing the defendant to deliver vacant possession of the suit land impleading the petitioner as defendant. The suit was decreed. Thereafter, the petitioner filed RFA No.7 of 2013 in the court of learned Additional District Judge, Bhanjanagar, which is pending adjudication. In the appeal, an application under Section 151 CPC was filed by the petitioner to admit the agreement to sale as additional evidence. The respondents objected to the same. By order dated 2.2.2015, learned lower appellate court rejected the application. 3. Heard learned counsel for the parties. 4. 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. 5. Whether the appellate court can consider the application for additional evidence at any stage of the appeal. The subject-matter of dispute is no more res integra. This Court in the case Sankar Pradhan v. Premananda Pradhan (dead) and others, 2015 (2) CLR 583 held thus: “7. In Persotim Thakur Vs. 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 5 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 Vs. Ananta Upadhaya and others, AIR 1962 Orissa 9 and State Bank of India Vs. M/s. Ashok Stores & others, (1982) 53 C.L.T. 552.” 6. On the anvil of the decision cited supra, the case of the petitioner may be examined. 7. Hearing of the appeal has not commenced. The appellate court is yet to examine the pleadings of the parties and evidence to adjudge the requirement of provisions of clause (b) of Rule 27 CPC. Application for adducing additional evidence can only be considered at the time of hearing of the appeal. 8. In view of the same, the order dated order dated 2.2.2015 passed by the learned Additional District Judge, Bhanjanagar in RFA No. 7 of 2013 is quashed. Learned lower appellate court is directed to consider the application as additional evidence at the time of hearing of the appeal. Since the appeal is of the year 2013, learned lower appellate court shall do well to dispose of the same within a period of two months from the date of production of a certified copy of the order. The petition is disposed of.