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2017 DIGILAW 628 (JHR)

Prema Devi v. Kushum Singh

2017-04-04

APARESH KUMAR SINGH

body2017
Heard learned Senior counsel for the petitioner and the respondent. 1. Defendant in Title Suit No. 80 of 2008 is the appellant before the learned Court of District & Additional Sessions Judge-XIII, Hazaribag in Title Appeal No. 29 of 2015. Appellant's application dated 08.01.2016 under Order XLI Rule 27 to adduce additional evidence in the nature of documents, which were enumerated in the list of document dated 25.10.2010 before the learned Trial Court, but were not adduced as evidence at the trial stage, have been declined vide impugned order dated 17.03.2016. Plea of the appellant was declined on the ground that though the judgment in Title Suit was finally pronounced on 18.04.2015, the defendant was not diligent in adducing its evidence before the learned Trial Court despite sufficient time and opportunity available to it. The documents are in the nature of original sale deed no. 4137 dated 15.03.2000, deed no. 11927 dated 12.10.1999 and revenue receipt and correction slip, which according to the appellant are important and relevant documents necessary for proper adjudication of the dispute raised in Title Suit No. 88 of 2008. It is further case of the petitioner that because of illiteracy and ignorance, the same could not be adduced at the trial stage. Learned Appellate Court after referring to the provisions of Order XLI Rule 27 did not find the plea acceptable under the conditions incorporated in the instant Rule. 2. Learned Senior counsel for the petitioner, however, submits while placing reliance upon the judgment rendered by the Apex Court in the case of Union of India Vs. Ibrahim Uddin and Anr. reported in (2012) 8 SCC 148 , para-36 to 48 that the Appellate Court should not have outrightly rejected the application at this stage. The option to exercise discretion at the appropriate stage of pronouncement of final judgment should have been kept open as per Order 47 Rule 1(b) of the Code of Civil Procedure. The Appellate Court could have considered at the appropriate stage whether the additional evidence may be necessary to pronounce judgment and in the interest of justice. The Appellate Court can in such circumstances after recording reasons ask such additional evidence to be produced by any of the parties including the appellant. The Appellate Court could have considered at the appropriate stage whether the additional evidence may be necessary to pronounce judgment and in the interest of justice. The Appellate Court can in such circumstances after recording reasons ask such additional evidence to be produced by any of the parties including the appellant. Learned Senior counsel for the petitioner, therefore, submits that the rejection of the petitioner's application should not be meant to preclude the Appellate Court from exercising its discretionary power under Order XLI Rule 27(1)(b) at the time of pronouncement of final judgment or for any other substantial cause. 3. Learned counsel for the sole respondent has vehemently opposed the ground to challenge the impugned order. It is submitted that the learned Appellate Court has after due application of mind not found any of the conditions enumerated under Order XLI Rule 27 (1)(a) and (aa) to be satisfied by the appellant to adduce additional evidence at the appellate stage. If the Learned Appellate Court has applied its full mind to the plea of the petitioner and considered the lack of relevancy of the documents sought to be adduced as additional evidence, the impugned order does not suffer from any error of law. If the defendant/appellant has been lacking in diligence in prosecuting his case before the trial Court, he should not be allowed to improve it at the appellate Stage. Learned counsel for the respondent, however, also submits that arguments are going to commence before the Appellate Court. 4. I have considered the submissions of the learned counsel for the parties and perused the impugned order as well. Upon due scrutiny of the reasons recorded in the impugned order, this Court does not find any flaw in the decision making or reasons recorded therein. The appellant despite having filed those documents alongwith its list dated 25.10.2010 before the learned Trial Court did not take diligent steps to adduce it at the time of trial, even though the judgment was pronounced after almost 5 years on 18.04.2015. The reasons for rejection of the petitioner's application are therefore unexceptionable. The appellant despite having filed those documents alongwith its list dated 25.10.2010 before the learned Trial Court did not take diligent steps to adduce it at the time of trial, even though the judgment was pronounced after almost 5 years on 18.04.2015. The reasons for rejection of the petitioner's application are therefore unexceptionable. However, there is some substance in the submission of the learned senior counsel for the petitioner that rejection of the application for adducing additional evidence on the ground enumerated in the impugned order should not come in the way if at the time of pronouncement of the judgment, it appeals to the Appellate Court that any documents are required to be produced or any witness are necessary to be examined or for any other substantial cause. Therefore, the only observation that can be made in the aforesaid background is that rejection of the application to adduce additional evidence on the part of the appellant would not come as a bar upon the Appellate Court in exercise of its power under Order XLI Rule 27 (1)(b) of the Code of Civil Procedure, in case it considers it necessary to require any documents to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, for the reasons to be recorded. 5. The writ petition is accordingly disposed of with the aforesaid observations without interfering in the impugned order.