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2017 DIGILAW 191 (ORI)

Gangadhar Mishra v. Bilashini Panigrahi

2017-02-21

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 21.11.2015 passed by the learned District Judge, Puri in R.F.A. No.103 of 2009. By the said order, learned appellate court has allowed the application to adduce additional evidence. 2. The petitioner as plaintiff instituted T.S. No.413/94 in the court of the learned Civil Judge (Sr. Divn.), Puri for specific performance of contract impleading the opposite parties as defendants. The suit was decreed. Assailing the judgment and decree of the learned trial court, the defendant no.1 filed R.F.A. No.103 of 2009 in the court of the learned District Judge, Puri. During pendency of the appeal, the appellant filed an application under Order 41 Rule 27 C.P.C. to adduce additional evidence. The same having been allowed, the instant petition has been filed. 3. Miss S. Pattanaik, learned counsel for the petitioner submits that when an application for additional evidence is filed, the same shall be considered at the time of hearing of the appeal. But in the instant case, learned appellate court has allowed the application before the hearing has began. 4. Per contra, learned counsel for the opposite parties supports the order. 5. This Court in the case of Sankar Pradhan vs. Premananda Pradhan (dead) and others, 2015 (2) OLR 607 held thus:- “5. Order 41 Rule 27 of C.P.C. deals with production of additional evidence in the appellant court. Sub Rule 1 of Rule 27 of Order 41, which is the hub of the issue, is quoted hereunder:- “27. Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The Appellate Court may allow such evidence or document to be produced, or witness to be examined.” 6. The Appellate Court may allow such evidence or document to be produced, or witness to be examined.” 6. Section 107(1)(d) C.P.C. enables the appellate court to admit additional evidence, whereas Order 41 Rule 27 C.P.C. furnishes grounds on which additional evidence may be taken. It confers discretionary power on the appellate court to allow additional evidence in appeal. The said power is circumscribed by limitations prescribed in Clauses (a), (aa) or (b) of Rule 27(1) of C.P.C. 7. In Persotim Thakur Vs. Lal Mohar Thakur and others, AIR 1931 PC 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. 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 Vs. Ananta Upadhaya and others, AIR 1962 Ori 9 and State Bank of India Vs. M/s. Ashok Stores & others, 53 (1982) C.L.T. 552. 8. Keeping in view the enunciation of law laid down by the Privy Council in Persotim Thakur (supra), this Court has examined the case. Hearing of the appeal has not yet commenced. The appellate court is yet to examine the pleadings of the parties and evidence of both oral as well as documentary to adjudge the requirement of provisions of clause (b). Application for adducing additional evidence can only be considered at the time of hearing of the appeal. The learned lower appellate court has not exercised its discretionary power in a judicial manner.” 6. Application for adducing additional evidence can only be considered at the time of hearing of the appeal. The learned lower appellate court has not exercised its discretionary power in a judicial manner.” 6. In view of the authoritative pronouncement of this Court in the case of Sankar Pradhan (supra), the order dated 21.11.2015 passed by the learned District Judge, Puri in R.F.A. No.103 of 2009 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 2009, learned appellate court is directed to dispose of the appeal as expeditiously as possible preferably within a period of six months from the date of production of a certified copy of this order. 7. The petition is disposed of.