Ram Kishan vs Inder Pal and others

M.M. Kumar, J.—This petition filed under Article 227 of the Constitution of India prays for quashing of order dated 8.3.2004 allowing the application filed by the defendantrespondents under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (for brevity the Code). The Ld. Addl. District Judge has also decided the appeal filed by the plaintiffpetitioner and allowed the application for additional evidence by permitting tender of evidence of Jamabandi for the year 195657, copy of mutation No. 60 showing that the land purchased, inter alia, by Shera vide sale deed dated 1.2.1954 and mutation No. 149 showing Teja and Mehma brothers of Shera acquiring title of land on the basis of Civil Court decree dated 8.2.1973. The controversy in the appeal is confined to the estate of Shera the father of defendantrespondent and plaintiffpetitioner.

Mrs. R.P. Dudeja, learned counsel for the petitioner has argued that on the correct interpretation of Order XLI Rule 27 of the Code additional evidence could be allowed in one of the following three situations :

(i) that the trial Court has refused to admit the evidence though it ought to have been admitted;

(ii) that evidence was not available to the party earlier despite exercise of due diligence; and

(c) that the appellate Court required the additional evidence so as to enable it to pronounce the judgment or by any other cause of substantial nature.

In support of her argument, the learned counsel has placed reliance on a judgment of the Rajasthan High Court in the case of Vishnu Iron and Steel Industries v. Govind Ram, 2004(1) RCR(Civil) 643.

After hearing the learned counsel at a considerable length, I find that the instant petition is devoid of merit and is thus liable to be dismissed. A perusal of Order XLI Rule 27 of the Code would show that such an application can be entertained and allowed by the first Appellate Court while hearing an appeal under Section 96 of the Act if it considers that additional evidence would be necessary for deciding the controversy raised before it. Order XLI Rule 27 of the Code reads as under:

"Order XLI

APPEALS FROM ORIGINAL DECREES :

Rule 27. Production of additional evidence in Appellate Court (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if

(a) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced, or witness to be examined

(2) Wherever additional evidence is allowed to be produced by the Appellate Court, the Court shall record the reason for its admission."

The aforementioned provision have been subjectmatter of interpretation of the Supreme Court in the case of K. Venkataramiah v. A. Seetharama Reddy and others, AIR 1963 SC 1526; Natha Singh v. The Financial Commissioner, Taxation, AIR 1976 SC 1053; Land Acquisition Officer v. H. Narayanaiah etc., AIR 1976 SC 2403 and P. Purushottam Reddy and another v. Pratap Steels Ltd., 2002(2) RCR(Civil) 70 (SC) : 2002(2) SCC 686. On the basis of the aforementioned judgments it can be concluded that the Ld. Additional District Judge while hearing the appeal under Section 96 of the (sic) enjoys adequate power to allow additional evidence if such evidence is required to enable him to pronounce the judgment. He can also allow the additional evidence for any other substantial cause advancing administration of justice. The judgment of the Rajasthan High Court in the case of Vishnu Iron and Steel Industries''s case (supra) on which reliance has been placed has also concluded that the first appellate Court has adequate power to allow additional evidence if such evidence is necessary to pronounce the judgment.

When the above principles are applied to the facts of the present case, it becomes evident that excerpts Ex. P13 produced by the plaintiffpetitioner do not refer to the Jamabandi for the year 195657 and a note to that effect had specifically been appended by the Moharrir Patwari who prepared the excerpts. Therefore, the aforementioned Jamabandi of the year 195657 would be necessary for deciding the issue as to whether the property in the hands of Shera the father of the parties to the litigation was ancestral and co parcenary. Similarly, copy of mutation No. 60 showing that the land was purchased inter alia, by Shera vide sale deed dated 1.2.1954 and mutation No. 149 showing that brothers of Shera acquired the title of land on the basis of Civil Court decree dated 8.2.1973, which had later come to Shera would also be necessary for deciding the controversy. Ld. Addl. District Judge has taken the correct view by observing that in order to effectively and completely decide the issue involved, the additional evidence would be necessary. Therefore, on the basis of the principles as well as precedents, no legal infirmity could be found with the views of the Ld. Addl. District Judge. The petition is devoid any merit and is thus liable to be dismissed.

For the reasons recorded above, this petition fails and the same is dismissed.