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2019 DIGILAW 1645 (JHR)

Madhuri Devi v. Pradeep Kumar Singh

2019-09-17

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. This writ petition is under Article 227 of the Constitution of India whereby and whereunder the order dated 22.06.2019 passed in Civil Appeal No. 19 of 2018 by District Judge-II, Deoghar is under challenge by which petition dated 29.05.2019 filed under Order XLI Rule 27 of CPC, by which separate list of documents along with leave petition to bring the said documents on record, has been rejected. 2. The brief facts of the case of the petitioners as per the pleadings made in the writ petition is that a partition suit has been filed being Title Partition Suit No. 65 of 1989 for a decree declaring that the registered Sale-Deed No. 2355 dated 23.07.1988 executed by the defendant No. 1 in favour of the defendant No. 2 is void, illegal, inoperative and not biding upon the plaintiffs and they are entitled to buy off the defendant No. 2 on payment of the half price amount to Rs. 23,900/- and to obtain possession over the suit premises after evicting the defendant No. 1 or anyone or anybody on his behalf. 3. The said suit on contest has been decreed vide judgment dated 28.02.2018 wherein it has been ordered that the Sale-Deed No. 2355 dated 23.07.1988 is a registered document under the Indian Registration Act, 1908. 4. The present petitioners have preferred an appeal against the order passed in Title Partition Suit No. 65 of 1989 being Civil (P) Appeal No. 19 of 2018 before the Principal District Judge, Deoghar. 5. The petitioners have filed a petition on 29.05.2019 under Order XLI Rule 27 of CPC for seeking leave of the appellate court to adduce additional evidence in appeal along with a leave petition separately been filed which was objected by the decree holder by filing rejoinder and after considering the rival stand taken by the parties, the appellate court has disposed of the said petition by holding therein that the relevance of the said document would be considered after consideration of the evidence and before pronouncement of the judgment and thereafter order will be passed, the petitioner, being aggrieved with the said order is before this Court under the revisional jurisdiction conferred under Article 227 of the Constitution of India. 6. 6. The petitioner has agitated the ground in assailing the aforesaid order that the petition filed under Order XLI Rule 27 ought to have been considered in view of the condition stipulated under Order XLI Rule 27 (1) (aa) since the reason has been assigned in the written statement by filing the said document but could not have been marked and the same has also been brought to the notice of the appellate court in the leave application seeking leave to allow the appellant to adduce additional evidence in pursuance to the aforesaid provision but the same has not been taken into consideration by holding in the impugned order that the relevance of the said documents would be considered at the time of pronouncement of the judgment and after consideration of the evidence by passing an appropriate order in this regard, and therefore, the appellate court has committed gross error in passing the aforesaid order by not specifically passing the order keeping the condition stipulated under Order XLI Rule 27 (1)(aa), hence, this writ petition. 7. This Court has heard the learned counsel for the petitioner and after appreciating the content of the pleading made in the writ petition as also the finding recorded in the impugned order, deem it fit and proper to discuss about the provision of Order XLI Rule 27 of CPC, which reads hereunder as: “27. Production of additional 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. (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 if due diligence, be produced by him at the time when the decree appealed against was passed. (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. (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.” It is evident from the provision as contained under Order XLI Rule 27 of CPC wherein the power has been conferred upon the appellate court by restraining it in accepting the additional evidence save and except the conditions stipulated therein i.e. (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. (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 if due diligence, be produced by him at the time when the decree appealed against was passed. (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. Therefore, the appellate court has been conferred with the power to allow additional evidence only after the condition stipulated therein will exist by assigning the reason for doing so. 8. The provision of Order XLI Rule 27 of CPC has been dealt with by Hon’ble Apex Court in the case of Union of India vs. Ibrahim Uddin and Another, (2012) 8 SCC 148 wherein the following observation has been made: “An application under Order XLI Rule 27 CPC 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 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. 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.” The Hon’ble Apex Court in the case of K.R. Mohan Reddy vs. Net Work Inc Represented through MD, (2007) 14 SCC 257 wherein the following observation has been made: “It is now a trite law that the conditions precedent for application of clause (aa) of sub-rule (1) of Rule 27 of Order 41 is different from that of clause (b). In the event the former is to be applied, it would be for the applicant to show that the ingredients or conditions precedent mentioned therein are satisfied. On the other hand if clause (b) to sub-rule (1) of Rule 27 of Order 41 CPC is to be taken recourse to, the appellate court is bound to consider the entire evidence on record and come to an independent finding for arriving at a just decision, adduction of additional evidence as has been prayed by the appellant was necessary.” In the decision reported in Jayamoorthy and Others vs. Palani and Others, (2013) 7 MLJ 471 the Hon’ble Madras High Court has held as under: 15. As per the above said rule, the additional evidence can be taken either by the appellate court itself or the appellate court can direct the lower court from which appeal has come or any other court subordinate to it to take evidence and transmit the same to the appellate court for being considered in the appeal. In either case, the appellate court has to indicate in its order allowing the application under Order XLI Rule 27, the points on which the additional evidence is to be adduced. A reading of the paragraph extracted from the judgment of the lower appellate court will show that the learned lower appellate judge, either in ignorance of the said provision or in utter disregard for the same, has omitted to follow the procedure. A reading of the paragraph extracted from the judgment of the lower appellate court will show that the learned lower appellate judge, either in ignorance of the said provision or in utter disregard for the same, has omitted to follow the procedure. Therefore, this court does have no hesitation in coming to the conclusion that the learned lower appellate judge has committed an error in not following the procedure contemplated under Order 41 Rule 27 and Rule 28 CPC in dealing with an application seeking permission to adduce additional evidence in the appellate stage. This court also holds that the learned lower appellate judge has committed a grave error in law in simply marking the documents produced by the first respondent herein (appellant before the lower appellate court) giving them exhibit numbers and referring them in the judgment of the lower appellate court. It is obvious that the admissibility, genuineness and reliability of the documents produced along with the application filed under Order 41 Rule 27 were challenged by the opposite parties. That being so, the learned lower appellate judge should not have chosen to simply mark the documents as exhibits on the side of the plaintiff and proceed with the disposal of the appeal. The procedure for taking additional evidence in the appellate stage has not been followed. Hence this court answers both the substantial questions of law in favour of the appellants.” 9. This Court has tested the factual aspect at the touch stone of the provision of Order XLI Rule 27 of CPC as also the interpretation of the conditions made by Hon’ble Apex Court in the aforesaid judgments as referred hereinabove and has found that admittedly the conditions stipulated under Order XLI Rule 27 (1)(a) is not available. The condition stipulated under Order XLI Rule 27 (1)(aa) is also not available in the considered view of this Court as would appear from the petition filed by the petitioners/ appellants/judgment debtors since no due diligence has been shown about the evidence, was not within his knowledge or could not, after the exercise if due diligence, be produced by him at the time when the decree appealed against was passed, as such, these conditions being mandatory since were not available, therefore, the appellate court has rightly not passed order keeping the non-availability of the aforesaid conditions. However, conditions as stipulated under Order XLI Rule 27 (1) (b) which pertains to the consideration of the additional evidence if 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 which the said provision suggest that if the conditions stipulated under Order XLI Rule 27 (1)(a) and (aa) are not available even though if the appellate court comes to the conclusion that the said document requires consideration after going through the evidences and before pronouncement of judgment, the same is required to be considered but assigning with reason as has been held by Hon’ble Apex Court in the case of Union of India vs. Ibrahim Uddin (supra). 10. It transpires from the impugned order that the appellate court since has found non- availability of conditions stipulated under Order XLI Rule 27 (1)(a) and (aa), therefore, has come to a conscious finding that the said document is required to be considered after appreciating the evidence as also the final argument and before pronouncement of judgment by passing appropriate order. 11. This Court, therefore, is of the view that the appellate court has committed no error in passing such order keeping the legal position as provided under Order XLI Rule 27 (1) (b), therefore, warrants no interference by this Court under its revisional jurisdiction conferred under Article 227 of the Constitution of India. 12. In view thereof, the writ petition fails and stands dismissed.