Dr. (Smt.) Shivani Jha vs State of Jharkhand

The petitioner is aggrieved of order dated 17.01.2018 by which her application for taking additional evidence in Title Appeal No.77 of 2014 has been

dismissed.

Title Suit No.04 of 1999 was instituted by the petitioner for a decree for declaration of her title and confirmation of her possession over the suit land

and for a decree for declaration that the defendant- State of Bihar has no valid title over the suit land and it has no authority to cancel Jamabandi

No.2061 and 2062 running in her name. The suit was dismissed vide judgment dated 04.09.2014, against which the petitioner has preferred Title

Appeal No.77 of 2014. In the pending appeal, an application for producing, Holding Tax receipt and notice for Holding Tax issued by MADA and

certain other documents received by the petitioner through RTI, as additional evidence was filed on 28.03.2016. This application has been dismissed

by the appellate court vide impugned order dated 17.01.2018.

Pursuant to this Court’s direction proceeding in Title Appeal No.77 of 2014 has been received in this Court.

Sub-rule (1) to Rule 27 to Order 41 CPC provides that parties shall not be entitled to produce additional evidence, whether oral or documentary, in

an appeal, however, statutory exceptions have been carved out under this rule itself. It provides that in a case where the court from whose decree

the appeal is preferred has refused to admit evidence which ought to have been admitted [clause (a)], or the party seeking to produce additional

evidence establishes that notwithstanding exercise of due diligence such evidence could not have been produced by him at the time when the decree

was passed [clause (aa)], or the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce

judgment [clause (b)], additional evidence may be taken at the appellate stage. In ""Union of India Vs. Ibrahim Uddin"", reported in (2012) 8 SCC

148, how an application under Order 41 Rule 27 CPC has to be dealt with has been explained by the Supreme Court. In paragraph no.49 of the

reported judgment, the Supreme Court has observed as under:

 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. 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.

Proceeding in Title Appeal No.77 of 2014 would disclose that the application under Order 41 Rule 27 CPC filed by the appellant on 28.03.2016 has

been dismissed midway, before the hearing was concluded. At the stage when this application has been dismissed by the appellate court, the parties

had not concluded their arguments and therefore, there was no occasions for the appellate court to form an opinion whether the documents sought to

be produced by the appellant are necessary to pronounce judgment or not. Before the parties have referred to the evidence led before the trial court

and sustainability or otherwise of the judgment and decree appealed against is argued, in my opinion, the stage for forming an opinion whether

additional document is required to be taken or a witness is to be examined would not arrive. The appellate court apparently committed a serious

error in law in not following the above procedure as indicated by the Supreme Court in ‘Ibrahim Uddin’ case. Â

In the above facts, finding serious infirmity in the impugned order dated 17.01.2018, it is set-aside. Application dated 28.03.2016 filed by the

appellant under Order 41 Rule 27 CPC is restored, which shall be decided by the appellate court, if pressed by the appellant, after the parties have

concluded their arguments.

The writ petition stands allowed, in the aforesaid terms.Â

Original record of Title Appeal No.77 of 2014 shall be transmitted to the court concerned by the Registry, forthwith.