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2017 DIGILAW 840 (JHR)

Bijay Ram Sahu @ B. R. Sahu v. Ghasi Ram

2017-05-09

APARESH KUMAR SINGH

body2017
JUDGMENT Aparesh Kumar Singh, J. – Heard learned counsel for the petitioner. 2. Appellants lost in Title(Partition) Suit No. 44 of 2002 vide judgment and decree dated 25.7.2012 rendered by the Learned Civil Judge, Junior Division-I, Jamshedpur. The suit was brought by the mother of the appellants, Shanti Devi for partition of the house and premises situate in House No. 687, B/Block, Sonari, Jamshedpur stated to be under allotment by M/s TISCO Ltd. in the name of Ful Kumari, the deceased mother of Shanti Devi. The original allotment letter of the said house was neither available in the possession of the Plaintiff, Shanti Devi nor were adduced as evidence before the learned Trial Court. After the death of the said Shanti Devi, the present appellants were substituted. By way of an application under Order 41, Rule 27 of Civil Procedure Code a direction was sought upon the land Department of Tata Steel, Jamshedpur to produce the allotment letter before the Appellate Court. This was resisted by the Defendants who set up a case that suit holding was purchased by their mother in the year 1949 from Laxmi Devi which was later on mutated in her name. In the absence of any documentary proof of allotment in the name of Phul Kumari, the mother of Plaintiff, Shanti Devi and two Defendants, it could not be proved that Plaintiff has any right, title over holding, during the trial. The suit was accordingly dismissed. Therefore, prayer for issuance of such direction upon M/s Tata Steel, Jamshedpur was unwarranted in view of the limited grounds laid down under Order 41, Rule 27 of the C.P.C to allow evidence at the appellate stage. Learned Appellate Court considered the submission of the parties, provisions of law on that count and came to the conclusion that no such application was ever made to trial court for procuring and admitting said documentary evidence passed in Title Appeal No. 88 of 2012 despite ample opportunity during course of trial vide impugned order dated 10.5.2016. It was also observed that though prayer was made for direction to land Department of M/s Tata Steel to produce the said allotment letter, but no copy of any such document was produced before the Appellate Court in support of the claim. It was also observed that though prayer was made for direction to land Department of M/s Tata Steel to produce the said allotment letter, but no copy of any such document was produced before the Appellate Court in support of the claim. The Appellate Court was of the view that additional evidence could be allowed if despite best effort such evidence could not be adduced in the first instance. This does not authorize the party to fill up any lacuna. Therefore, petition for adducing additional evidence was rejected. 3. Learned counsel for the petitioners has strenuously tried to show that allotment letter has vital significance on the outcome of the partition suit as its presence would determine that Plaintiff was entitled for partition of the suit property, originally allotted in the name of Phul Kumari, mother of the Plaintiff Shanti Devi from whom the substituted Plaintiffs and Defendants are prosecuting the matter. 4. Considered the submission of the petitioner and the relevant material facts noticed herein above and also perused the impugned order. The fact of the matter is that despite the suit having been decided after 10 years of its institution in 2002 vide judgment dated 25.7.2012, neither before the Trial Court nor before the Appellate Court any such document has been produced by the Plaintiffs/Appellants to support the pleadings. Prayer made before the Appellate Court was only to direct M/s Tata Steel to produce such document. The Appellate Court was fully justified in refusing such prayer as the Plaintiffs had pleaded and set up its case on the basis of the allotment letter of M/s Tata Steel. There was no reason why such document could not have been adduced before the Trial Court or even at the Appellate stage. The Appellants have failed to show that even after exercise of due diligence the said document could not be procured. 5. There was no reason why such document could not have been adduced before the Trial Court or even at the Appellate stage. The Appellants have failed to show that even after exercise of due diligence the said document could not be procured. 5. Order 41, Rule 27 is quoted herein below:- Order XLI Rule 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. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission". 6. Provisions under Order 41, Rule 27 also clearly go to show that ingredients contained in sub Rule (1)(a)(aa) do not stand satisfied on the part of the Appellants. In such circumstance, no interference can be made in the impugned order dated 10.5.2016(Annexure-5). From the status report furnished by the Learned Additional District Judge-VI, Jamshedpur, it further fails to reason as to why Title Appeal No. 88 of 2012 has been kept pending awaiting order in the present matter though there is no interim order staying the proceedings of the Title Appeal pending before the Appellate Court. The learned Trial Courts or the Appellate Courts should not keep matters in abeyance for indefinite period of time simply on the grounds that aggrieved party has approached the superior Court against any such order passed by it if no interim order staying the proceeding of the Lower Court has been passed. The impugned order is dated 10.5.2016 and the appeal has remained pending as such awaiting order passed in this case. The impugned order is dated 10.5.2016 and the appeal has remained pending as such awaiting order passed in this case. The learned Trial Courts and the Appellate Courts should therefore bear in mind the aforesaid observations. 7. The writ petition is accordingly dismissed. Let a copy of the order be also sent to the Director, Judicial Academy, Jharkhand.