Asghar Ali vs Md. Jahangir

The petitioners are aggrieved of order dated 06.06.2012 passed in Title Appeal No.06 of 2010 by which their application under Order 41 Rule 27

CPC has been rejected.Â

The petitioners are plaintiffs in Partition Suit No.05 of 2005 which was instituted for a preliminary decree for partition to the extent of half share for

the plaintiffs in the Schedule-A properties. The plaintiffs have pleaded that their common ancestor namely, Bholi Mian had two sons- Biraji Mian

and Ganeshi Mian. Son of Ganeshi Mian namely, Bhatu Mian and Biraji Mian are the settlee of the land comprised in Khata No.3 admeasuring

about 3.92 acres of Village- Larabad, PS- Jainagar (now Telaiya), District-Hazaribagh. The defendant nos.1 to 5 are sons of Jamtali Mian and

Gaffar Mian. The suit was dismissed vide judgment dated 23.01.2010, against which the petitioners have preferred Title Appeal No.06 of 2010. In

the pending appeal, the petitioners filed an application under Order 41 Rule 27 CPC for admitting sale-deeds dated 02.07.1970 and 11.02.1972 in

evidence. Â

The learned Senior counsel for the petitioners submits that merely admitting a document would not amount to admitting claim of the parties and in a

suit for partition parties must be afforded opportunity to substantiate their claim, if required, by leading additional evidence at the appellate stage.Â

Rule 27 to Order 41 CPC mandates that additional evidence shall not be taken by the court at the appellate stage. This statutory restriction has

exceptions under sub-rules 27 (1)(a) and (aa). It provides that if a document which ought to have been taken in evidence but refused by the trial

court may be taken in evidence at the appellate stage [clause-(a)]. Another exception carved-out under Order 41 Rule 27 CPC is that the document

sought to be produced as additional evidence if in-spite of due diligence of the party could not have been produced during the trial of the suit such

document may be admitted as additional evidence. On this aspect an inter-related provision in the Code is found under Order VII Rule 14 CPC

which provides that the plaintiff shall at the time of presentation of the plaint produce the document upon which his claim is founded [sub-rule (1)] and

if the document is not in his possession he shall aver, where it is possible, in whose possession it is [refer sub-rule (2)].Order 13 Rule 1 CPC provides

that before settlement of issues in the suit parties shall produce original documents. Â

After the partition suit was dismissed holding that Schedule-A properties belong to ancestors of defendant nos.1 to 5, the petitioners intend to

produce sale-deeds dated 02.07.1970 and 11.02.1972 allegedly to establish that they alongwith defendant nos.1 to 5 are descendants of one Bhatu

Mian. There is no reference of these sale-deeds in the plaint and the plaintiffs did not seek permission of the court during trial of the suit to produce

these sale-deeds seeking leave under Order VII Rule 14(3) CPC. After the parties have led their evidence and contested the suit on specific issues

during the trial they cannot be permitted to fill up lacuna in their case. In the above facts, the appellate court has rightly declined to take sale-deeds

dated 02.07.1970 and 11.02.1972 as additional evidence. Â

No doubt, the stage at which the application under Order 41 Rule 27 CPC shall be decided is the final hearing, however, finding no substance in the

challenge to the impugned order dated 06.06.2012, the writ petition is dismissed on merits. Â