KHOGEN CHANDRA MANDAL vs BIBHUTI BHUSAN MANDAL

The petitioners are aggrieved of order dated 13.09.2011 passed in Title (Partition) Appeal No. 15 of 2006 by which an application under Order XLI

Rule 27 C.P.C read with Section 151 C.P.C has been dismissed. Â

Parties to an appeal shall not be permitted to produce additional evidence, whether oral or documentary, is the mandate under Rule 27(1) to Order

XLI C.P.C, however, statutory exceptions to the aforesaid restriction have been carved out in clause (a), (aa) and (b) of sub-rule 1 to Rule 27 itself.

By now it is well-settled that if the appellate court forms an opinion that a document or a witness is necessary to enable it to pronounce judgment, it

shall permit a party to produce additional evidence provided, it is found that the court from whose decree the appeal is preferred has refused to admit

evidence which ought to have been admitted, or in spite of due diligence the party seeking leave to adduce additional evidence has failed to produce

the said document in the court below. The appellate court may permit a party to adduce additional evidence for any other substantial cause also. At

this stage it needs to be clarified that conditions under clause (a), (aa) and clause (b) are restrictions which the appellate court may consider at the

final hearing while taking a decision whether a party may be permitted to lead additional evidence or not. The stage at which an application under

Order XLI Rule 27 C.P.C can be decided is the final hearing in the appeal. In “Union of India Vs. Ibrahim Uddin and Another†reported in

(2012) 8 SCC 148, the Supreme Court has held thus;

 “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.â€​Â

In view of the above proposition in law, it is apparent that the appellate court has taken up for hearing the application under Order XLI Rule 27

C.P.C at a pre-mature stage. Another error committed by the appellate court is, that it has recorded a finding on merits at this stage itself. Â

Finding serious error in the approach of the appellate court, impugned order dated 13.09.2011 is set-aside. The application dated 01.09.2011 is

restored to its original file and it shall be taken up for hearing, if pressed by the applicant, at the stage of final hearing in Title (Partition) Appeal No. 15

of 2006.Â

Another aspect of the matter is that the appellants who filed an application under Order XLI Rule 27 C.P.C, pressed it, argued it and when a

decision came against them, they have come to this Court objecting to the order on the ground that the stage at which this application has been

decided was not proper. Apparently, on account of fault of the petitioners, the respondents are compelled to come to this Court, and accordingly a cost

of Rs. 15,000/- is imposed upon them which shall be paid to the respondents, within 4 weeks. Â

The writ petition is allowed, on the above terms.Â

Interim order dated 23.01.2012 stands vacated.Â