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2018 DIGILAW 764 (ORI)

Ramanath Mishra v. Udayanath Mohanty

2018-08-28

A.K.RATH

body2018
JUDGMENT Dr.A.K.RATH, J. - This petition challenges the order dated 01.08.2009 passed by the learned District Judge, Puri in R.F.A. No. 141 of 2005, whereby and whereunder, the learned appellate court rejected the application of the appellants-petitioners under Order 41 Rule 27 CPC to admit certain documents as additional evidence. 02. The mother of the petitioners as plaintiff instituted the suit for partition impleading the opposite parties as defendants. The suit having been dismissed, she filed R.F.A. No. 141 of 2005 before the learned District Judge, Puri. During pendency of the appeal, the appellant filed an application under Order 41 Rule 27 CPC for admitting certain documents as additional evidence. Learned District Judge rejected the same. 03. Mr. Amiya Kumar Mishra, learned counsel for the petitioners submits that the application for additional evidence can be considered at the time of hearing of the appeal. But, the learned District Judge rejected the same before hearing of the appeal. 04. Per contra, Mr. Dinesh Kumar Mohanty, learned counsel for the opposite parties submits that the petitioners filed an application under Order 41 Rule 27 CPC to admit the documents as additional evidence. In an elaborate order, the learned District Judge came to hold that the requirements of clauses (a) and (aa) of Rule 27 (1) of Order 41 CPC have not been satisfied. There is no illegality or infirmity in the same. 05. The sole question that hinges for consideration of this Court is as to whether the application for additional evidence can be taken up before hearing of the appeal ? 06. The subject-matter of dispute is no more res integra. In Sankar Pradhan v. Premananda Pradhan (dead) and others, 2015 (II) CLR 583, this Court in paragraph-7 of the report held as follows: “7. In Parsotim Thakur and others Vrs. Lal Mohar Thakur and others, AIR 1931 Privy Council 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. 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 Vrs. Ananta Upadhaya and others, AIR 1962 Orissa 9 and State Bank of India Vrs. M/s.Ashok Stores & others, 53 (1982) C.L.T.552.” (emphasis laid) 07. In view of the authoritative pronouncement of this Court in the case of Sankar Pradhan (supra), the inescapable conclusion is that the application for additional evidence can be considered at the time of hearing of the appeal. 08. Resultantly, the order dated 01.08.2009 passed by the learned District Judge, Puri in R.F.A. No. 141 of 2005 is quashed. The learned District Judge shall consider the application for additional evidence at the time of hearing of the appeal. Since the appeal is of the year 2005, the learned appellate court shall do well to dispose of the same by end of November, 2018 without being influenced by the impugned order. 09. The petition is allowed. There shall be no order as to costs. Petition allowed.