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2018 DIGILAW 2426 (JHR)

Most Deorani Kuer v. Mundrika Chaudhary

2018-10-31

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The petitioners, who are the appellants in Title Appeal No. 01 of 2011, are aggrieved of order dated 03.08.2013 by which their application under Order XLI Rule 27 CPC has been dismissed by the appellate Court. 2. Title Suit No. 86 of 2002 was instituted by the petitioners for a decree for declaration of their right, title and interest over half of the suit properties and for a decree for declaration that the gift deed dated 22.04.1996 and the registered sale-deed dated 25.09.2000 are illegal, fraudulent and void ab initio. The suit was dismissed by judgment dated 07.12.2010. The petitioners have challenged this judgment in Tittle Appeal No. 01 of 2011. In the pending appeal, pleading that the land comprised under Plot No. 601 within Khata No. 59, area about 1.50 acres was purchased through sale-deed dated 12.07.1993 in the name of Ram Prasad Choudhary, but from the joint family fund, an application seeking leave of the court to produce the sale-deed dated 12.07.1993 as additional evidence was filed by them. This application has been dismissed by the appellate Court holding that the sale-deed dated 12.07.1993 would have no bearing on the pending appeal. 3. Mr. Vijay Shankar Prasad, the learned counsel for the respondents has supported the impugned order. 4. Sub-Rule 1 to Rule 27 of Order XLI CPC mandates that additional evidence shall not be taken at the appellate stage. This restriction has, however, statutory exceptions under sub-rule 1(a), (aa) and (b). It provides that if evidence which ought to have been taken has been refused by the court from whose decree the appeal is preferred, it may be admitted in evidence [clause (a)]. Under clause (aa) if the party seeking permission to produce additional evidence establishes that in spite of due diligence the document sought to be produced in evidence at appellate stage could not have been produced before the court below, such document also may be admitted in evidence. The real intent and import of Rule 27(1) of Order XLI CPC is that if a document is required to be admitted in evidence or a witness to be examined to enable the appellate Court to pronounce judgment, keeping in mind the provisions under clause (a) and clause (aa), the appellate Court may permit production of a document or examination of a witness. Rule 27(1)(b) confers powers upon the appellate Court also to admit in evidence any document for any other substantial cause. Evidently, irrespective of the restriction under Order XLI Rule 27(1), wide powers have been conferred upon the appellate Court to admit a document in evidence or to examine a witness at the appellate stage.Except in a case where on the face of the records application for additional evidence is found frivolous, before final hearing in the appeal, the application for additional evidence should normally be not decided. In " Union of India Vs. Ibrahim Uddin and Another , (2012) 8 SCC 148 ", the Supreme Court has observed thus; "49. An application under Order 41 Rule 27 C.P.C is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court." 5. The appellate Court in its order dated 03.08.2013 has observed that in paragraph no. 3 of the plaint the plaintiffs have asserted that 1.50 acres land was purchased through sale-deed dated 12.07.1993 and this stand of the plaintiffs was controverted by the defendants in their written statement pleading that the said land was purchased from the fund of Ram Prasad Choudhary and not from the joint family fund. The petitioners have asserted that during pendency of the suit they could not produce a copy of the sale-deed dated 12.07.1993, which now they have found. The petitioners have asserted that during pendency of the suit they could not produce a copy of the sale-deed dated 12.07.1993, which now they have found. Whether the stand taken by the petitioners that inspite of due diligence they could not produce a copy of the sale-deed dated 12.07.1993 during the trial and whether this document is necessary to enable the court to pronounce judgment, are the issues which can be dwelt upon at the stage of final hearing in the appeal and not before that. No doubt, an application which apparently is frivolous can be decided by the appellate Court without awaiting the stage of final hearings in the appeal, in the above facts, more particularly, plaint averments in para 3, the application filed by the petitioners under Order XLI Rule 27 CPC cannot be said to be frivolous. 6. In the aforesaid facts, it is apparent that the trial Judge has pre-judged the issue, an issue which is required in law to be decided at the final hearings in the appeal and therefore the impugned order dated 03.08.2013 is liable to be set-aside, which, accordingly is set-aside. The application dated 18.07.2013, if pressed by the appellants, shall be decided at the stage of final hearings in Title Appeal No. 01 of 2011. 7. The writ petition stands allowed, in the aforesaid terms.