Deepak Tarway vs Radhwa Devi

The petitioners who are appellant nos. 2 and 3 in Title Appeal No. 09 of 2015 are aggrieved of order dated 07.02.2018 by which their application

under Order XLI Rule 27 CPC has been rejected.

Plea urged on behalf of the petitioners is that once the trial court has dismissed the suit on the ground that the plaintiffs have failed to adduce

documentary evidence on their claim, it became more so necessary for them to produce documents which would establish their right, title and interest

over the suit property and, therefore, application for adducing additional evidence cannot be rejected.

Title Suit No. 10 of 2007 was instituted by Kali Charan Ram and his legal heirs for a decree for declaration of their right, title and possession over

schedule ‘A’ property and for confirmation of their absolute possession over the suit lands.The suit was dismissed by an order dated

31.07.2015. In the suit 9 issues were settled; one of the issues was whether the plaintiffs have valid right, title and possession over the suit lands and

whether the sale-deeds executed in favour of plaintiff nos. 2, 3 and 4 confer valid right and title over them.

During the trial the parties led oral as well as documentary evidence; the plaintiffs have examined nine witnesses and produced four sale-deeds and

rent receipts issued between 1989 to 2006. The defendants have also led evidence and produced Hukumnama, settlement receipt, Zamabandi receipt,

Zamabandi register etc. to claim their right, title and possession over the suit land. Against the judgment in Title Suit No. 10 of 2007 the plaintiffs;

plaintiff no. 1 has died during pendency of the suit, have filed Title Appeal No. 09 of 2015 in which an application under Order XLI Rule 27 CPC for

producing certain documents has been filed by the appellants. This application has been dismissed by the appellate court.

Order XLI Rule 27 CPC provides that parties shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate

court. However, there are statutory exceptions carved out under Rule 27(1). It provides that if a document which ought to have been admitted by the

court from whose decree and order appeal has been preferred [clause (a)], or in spite of due diligence the document sought to be produced as

additional evidence could not have been produced during the trial [clause (aa)], or the appellate court forms an opinion that any document or a witness

is required to be examined for arriving at a just decision in the case [clause (b)], the appellate court shall admit additional evidence.

It is not a case pleaded by the appellants that they sought leave of the court for producing the documents which they now intend to produce in the

pending appeal. It is also not case of the appellants that in spite of due diligence these documents could not be produced during the trial of Title Suit

No. 10 of 2007. In their application under Order XLI Rule 27 CPC the appellants have pleaded that on 18.11.2016 son of Govind Pandey has handed

over these documents to them. In this context provisions under Order VII Rule 14 CPC assumes significance. Sub-rule 1 to Rule 14 of Order VII

CPC provides that at the time of presentation of the plaint the plaintiff shall produce the document on which his claim is founded and sub-rule 2

mandates that if such a document is not in possession of the plaintiff he shall aver as far as practicable in whose possession the document is.

The plaintiffs have not produced those documents with the plaint which they now intend to produce in the pending appeal. They have also not averred

in the plaint in whose possession those documents were. Admittedly, they havenot sought leave of the court under sub-rule 3 to Rule 14 of Order VII

CPC for producing these documents during trial of Title Suit No. 10 of 2007. There is another aspect of the matter which needs to be recorded. If a

suit has failed on a specific ground, at the appellate stage permitting a party to adduce evidence on that issue would amount to permitting him to fill-up

lacuna in his case. Legality of the judgment in Title Suit No. 10 of 2007 must be tested in the pending appeal on the basis of the evidence led by the

parties in the suit.

Normally, the stage at which an application under Order XLI Rule 27 CPC shall be decided is the stage of final hearing, however, on merits I find

that the appellate court has rightly not permitted the appellants to lead additional evidence. General rule is that ordinarily the appellate court should not

travel beyond the record of the lower court and additional evidence, whether oral or documentary, should not be admitted except in cases where

circumstances as indicated under Rule 27 are found to exist. In “K. R. Mohan Reddy Vs. Net Work Inc. Represented Through MD†reported in

(2007) 14 SCC 257 the Supreme Court has observed that power of the appellate court to pass any order thereunder is limited. For exercising its

jurisdiction thereunder, the appellate court must arrive at a finding that one or the other conditions enumerated thereunder is satisfied. A good reason

must also be shown as to why the evidence was not produced in the trial court.

From the pleadings of the petitioners, I do not find that the appellants satisfy the requirements in law as stipulated under Order XLI Rule 27 CPC.

 8. In the above facts and for the reasons indicated hereinabove I am not inclined to interfere in the matter and accordingly, the writ petition is

dismissed.