Raghubir Sao vs Keshwar Sao

The petitioner, who is plaintiff in Title Suit No.55 of 2002, is aggrieved of order dated 09.01.2007 passed in Title Appeal No.72 of 2005 by which his

application for producing the original settlement documents as additional evidence has been declined. Â Â

Title Suit No.55 of 2002 was instituted for a decree for declaration of the plaintiff’s right, title, interest and possession over the suit lands and for

a decree for declaration of confirmation of his possession over the suit lands. He has pleaded that the lands comprised under Khata no.1, Plot

nos.28 and 30 of Khewat No.8 were originally recorded as Bakast Lagan Panewala of Samilat

Malikan. One Radha Bihari Lal, the then landlord was in exclusive possession over the said land which, before vesting of zamindari were settled in

favour of Govind           Sao - father of the plaintiff who died in the year 1994 and thereafter the plaintiff came in peaceful

possession over the suit land. The defendants contested the suit by filing written statement pleading that the suit is barred under section 91 of the

CNT Act, 1908, however, genealogy of the parties described by the plaintiff was admitted by the defendants. Settlement by the ex-landlord in

favour of father of the petitioner was disputed by the defendants. Â

The suit was decreed in part declaring right, title and interest of the plaintiff over 46.2/3 decimals land comprised under Plot no.30, Khewat No.8.Â

The plaintiff has now filed Title Appeal No.72 of 2005 challenging the judgment and decree in Title Suit No.55 of 2002. In the pending appeal he

has filed an application for adducing original settlement documents which according to him were handed over to the defendants but not returned to him

and finally found when a fire broke-out in the defendants’ house. This application has been dismissed by the appellate court. Â

Referring to a decision in “Union of India vrs. Ibrahimuddin & Anr.â€​ Reported in (2012) 8 SCC 148, Mr. Arpan Mishra, the learned counsel for

the petitioner submits that an application under Order XLI Rule 27 CPC is required to be considered at the time of final hearing of appeal and while

so, the appellate court by dismissing the application dated 16.11.2006 has pre-judged the issue. The learned counsel for the petitioner has referred to

order dated 30.04.2018 passed in W.P.(C) No.7527 of 2017, wherein this Court has observed as under :

 “3. Sub-rule 1 to Rule 27 of Order XLI C.P.C mandates that additional evidence shall not be taken at the appellate stage. This restriction has,

however, statutory exceptions under sub-rule 1(a), (aa) and (b). It provides that if an evidence which ought to have been taken has been refused by

the court from whose decree the appeal is preferred, it may be admitted in evidence [clause (a)]. Under clause (aa) if the party seeking permission to

produce additional evidence establishes that in spite of due diligence the document sought to be produced in evidence at appellate stage could not have

been produced before the court below, such document may be admitted in evidence. At this stage it is pertinent to mention that the conditions under

clause (a) and clause (aa) to sub-rule 1 to Rule 27 C.P.C can be looked into by the appellate court at the time of final hearing and not before that.Â

The real intent and import of Rule 27(1) of Order XLI C.P.C is that if a document is required to be admitted in evidence or a witness to be examined

to enable the appellate court to pronounce judgment, looking at the exceptions under clause (a) and clause (aa), the appellate court may permit

production of a document or examination of a witness. But, clause (a) and clause (aa) are not the only instances in which additional document may be

taken in evidence at the appellate stage. Rule 27(1)(b) confers powers upon the appellate court to admit in evidence any document for any other

substantial cause. Evidently, irrespective of the restriction under Order XLI Rule 27(1), wide powers have been conferred upon the appellate court to

admit a document in evidence or to examine a witness at the appellate stage.Â

  4.  The stage at which the application under Order XLI Rule 27 C.P.C should be decided is the final hearing of the appeal; in an appeal

after the parties appear it is posted for final hearing. The application under Order XLI Rule 27 C.P.C cannot be decided before both parties have

concluded their arguments in the appeal; before that stage the appellate court cannot form an opinion whether a document should be admitted in

evidence or a witness has to be examined. In “Union of India Vs. Ibrahim Uddin and Another†reported in (2012) 8 SCC 148, the Supreme Court

has observed thus;Â Â Â Â

 “49. An application under Order 41    Rule 27 C.P.C 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€​

True, an application for adducing additional evidence at the appellate stage should be considered at the stage of final hearing, however, there is one

exception to this general rule and that is, if on merits it is found that the application under Order XLI Rule 27 CPC on the face of it is liable to be

dismissed summarily, on a technical plea that the application under Order XLI Rule 27 CPC should be decided at the final hearing of the appeal, order

of the Appellate Court need not be interfered with. Â

Order XLI Rule 27(1) CPC provides that parties shall not be permitted to lead additional evidence, whether oral or documentary, in the Appellate

Court. However, this limitation under Rule 27 has statutory exceptions carved-out in Rule 27 itself. It provides that if a document which ought to

have been received in evidence by the court from whose decree an appeal has been preferred but not admitted in evidence [clause (a)] and if a party

has established that inspite of due diligence the document could not have been produced during the trial of the suit [clause (aa)], the Appellate Court

may permit additional evidence. However, if it is found that the application for additional evidence does not satisfy the aforesaid two instances

mentioned under clause(a) and clause(aa), no inference is required in the matter.Â

In the impugned order dated 09.01.2007 the Appellate Court has recorded that during his examination the appellant who was examined as PW-5

has not thrown a challenge to the settlement documents filed by the defendants vide Exhibit B-2 rather, during his crossexamination in paragraph

no.58 he seems to have admitted the settlement documents produced by the defendants. Now the appellant seeks permission to produce a different

set of settlement documents which he did not produce in the proceeding of Title Suit No.55 of 2002 and, in fact, admitted the settlement documents

filed by the defendants. The documents sought to be produced as additional evidence are not referred in the plaint [refer Order VII Rule 14(1) &

(2)] and during the trial of Title Suit No.55 of 2002 the plaintiff did not seek leave of the court to produce these documents [refer Order VII Rule

14(3) CPC]. It is not a case pleaded by the appellant that inspite of due diligence these documents could not be produced in the suit. 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. 55 of 2002 must be tested

in the pending appeal on the basis of the evidence led by the parties in the suit.

General rule is that ordinarily the appellate court should not travel beyond the record of the lower court and additional evidence,Â

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 MDâ€​ 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.

Facts pleaded by the appellant do not bring his case within the purview of clause(a) or (aa) of Order XLI Rule 27 CPC.Â

A contention has been raised on behalf of the appellant that the settlement documents vide Exhibit-B-2 filed by the defendants were admitted with

objection. In this context it needs to be recorded that it is evidence of PW-5 in the court which is substantive evidence on the basis of which a decision

in the suit has been rendered.   Â

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.      Â