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2020 DIGILAW 134 (JHR)

Binod Mahto @ Binda Mahto v. Basani Mahatain

2020-01-20

SANJAY KUMAR DWIVEDI

body2020
JUDGMENT 1. Nobody is appearing on behalf of the respondents inspite of valid service of notice. 2. The counter-affidavit has also been filed on behalf of the respondents. 3. Heard Mr. Sanjay Prasad, the learned counsel appearing for the petitioner. 4. The petitioner has preferred this wit petition for quashing the order dated 17.06.2014, passed by District and Additional Sessions Judge-III, Dhanbad in T.A. No.129 of 2007. 5. Mr. Prasad, the learned counsel appearing for the petitioner submits that a suit for declaration and recovery of Khas Possession vide Title Suit No.15 of 1989 was passed against the petitioner and the suit was dismissed. The plaintiff-respondents filed the Appeal No.129 of 2007. 6. The petitioner-respondent has filed petition under Order XLI Rule 27 of the C.P.C for admitting certified copy of Terij (extract) of C.S. record of right of Khata No.135 Mauza Jorapokhar in evidence and also to issue summons upon the C.O. Jharia to produce Thoka No.1739 which have been made on the basis of parcha issued under BPPHT vide case No.11/85-86. The said application was heard by the appellate court on 17.06.2014 and after hearing of the parties, the appellate court came to the finding that for taking additional evidence on record at the appellate stage, even if filed during pendency of the appeal, is to be heard at the time of final hearing of the appeal at the stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record and with the aforesaid observation the petition under Order XLI Rule 27 was disposed of by the court below. 7. Aggrieved with this, the petitioner has preferred this writ petition. 8. This Court has considered and perused the judgment of the appellate court below passed under Order XLI Rule 27 of the C.P.C. Paragraph No.49 of the judgment rendered by the Honble Supreme Court in '' Union of India v. Ibrahim Uddin,'' reported in (2012) 8 SCC 148 , is quoted herein below: ''49. An application under Order 41 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. An application under Order 41 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 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.'' 9. In view of the aforesaid judgment of the Honble Supreme Court, this Court finds that there is no illegality in the order dated 17.06.2014 passed under Order XLI Rule 27 C.P.C. There is already observation that the application will be considered at the time of hearing of the appeal. 10. Accordingly, the writ petition stands dismissed. Stay order is vacated. 11. The parties at the time of hearing the appeal may pursue the order under Order XLI Rule 27 C.P.C application, as observed by the appellate court.