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2017 DIGILAW 206 (RAJ)

Shabana Dindor W/o Late Shri Hemendra v. Board of Revenue, Ajmer through its Registrar

2017-01-17

SANGEET LODHA

body2017
JUDGMENT : Sangeet Lodha, J. The petitioners have preferred an application (APPLW 342/17) for substitution of the legal representatives of respondent no.8, who has died during the pendency of the petition. It is submitted that legal representatives of respondent no.8 are already on record as respondents no.3 to 7. The application is not opposed by the counsel appearing on their behalf. Accordingly, the application is allowed. The amended cause title is taken on record. 2. The respondents no.3 to 7 and 9 have preferred an application under Article 226(3) of the Constitution of India for vacating the interim order dated 21.4.16 passed by this court. 3. With the consent of the learned counsels appearing for the parties, the matter is finally heard at this stage. 4. This petition is directed against order dated 7.4.16 passed by the Board of Revenue Rajasthan, Ajmer, whereby a revision petition preferred by the petitioner against the order dated 9.12.14 passed by the Revenue Appellate Authority (RAA), Udaipur, allowing an application preferred by the appellants, the respondents herein, under Order XXXXI Rule 27 CPC, has been dismissed. 5. Learned counsel appearing for the petitioners submitted that the application was preferred by the respondents praying for taking on record eight documents which were not jamabandies and mutation orders, however, the RAA while allowing the application by the order impugned, has gone beyond the prayer made in the application and has permitted production of documents which was not prayed for to be taken on record. Learned counsel submitted that the RAA has erred in allowing the application preferred under Order XXXXI Rule 27 at this stage. Learned counsel submitted that the application was required to be considered at the time of hearing of the appeal. 6. On the other hand, the counsel appearing for the respondents submitted that the documents sought to be produced by way of an application under Order XXXXI Rule 27 were certified copies of revenue record, which includes jamabandies and mutations and thus, the stand sought to be taken by the petitioner that the RAA has taken the documents, which were not subject matter of the application on record is ex facie incorrect. Learned counsel submitted that the RAA has allowed the application after due consideration observing that the documents sought to be produced are the public documents which cannot be said to be concocted or false and thus, the Board of Revenue has rightly declined to interfere with the order passed by the RAA in the interest of justice. 7. I have considered the rival submissions of the learned counsels and perused the material on record. 8. Indisputably, the parties to an appeal are not entitled to produce the additional evidence whether oral or documentary in the appellate court unless the appellate court arrives at the conclusion that the court from whose decree the appeal is preferred has refused to admit the evidence which ought to have been admitted or the evidence sought to be produced could not be produced even after exercise of due diligence or the appellate court requires any document to be produced to enable it to pronounce judgment or for any other substantial cause. 9. A perusal of the order impugned reveals that while exercising the discretion permitting the additional evidence being taken on record, the RAA has not cared to examine whether the conditions governing the permissibility of evidence being taken on record at the appellate stage are satisfied or not. The additional evidence has been permitted to be taken on record by the RAA solely on the ground that the documents sought to be produced are the public documents and therefore, there is no possibility of the same being concocted or false. Moreover, the question with regard to the relevance of the documents to the controversy involved has also not been taken into consideration by the RAA. Thus, the order impugned passed by the RAA is not sustainable in the eyes of law. 10. Further, the application seeking production of additional evidence was required to be considered by the RAA at the time of hearing of the appeal and there was no occasion to decide the application before the hearing of the appeal. Reliance in this regard may be placed on the decisions of the Hon'ble Supreme Court in the matters of "State of Rajasthan v. T. Sahani & Ors.", (2001) 10 SCC 619 and "Eastern Equipment and Sales Ltd. v. ING. Yash Kumar Khanna", (2008) 12 SCC 739 . 11. In view of the discussion above, the orders impugned deserve to be set aside. 12. Yash Kumar Khanna", (2008) 12 SCC 739 . 11. In view of the discussion above, the orders impugned deserve to be set aside. 12. Accordingly, the writ petition is allowed. The orders impugned dated 7.4.16 passed by the Board of Revenue Rajasthan, Ajmer, and the order dated 9.12.14 passed by the Revenue Appellate Authority, Udaipur are set aside. The application preferred by the respondents under Order XXXXI Rule 27 CPC for taking additional evidence on record shall be considered by the Revenue Appellate Authority, afresh in accordance with law at the time of hearing of the appeal. No order as to costs.