Ramlakhan vs The State of M.P.

Sanjay Yadav, J.—This is plaintiff''s second appeal directed against judgment and decree dated 17.04.1999 passed in Civil Appeal No.15-A/1997 by First Additional Judge to the Court of District Judge, Satna affirming judgment and decree dated 09.11.1995 passed in Civil Suit No.86-A/1994 by Second Civil Judge Class-II, Satna.

The appeal was admitted on the following substantial question of law :

�Whether the lower appellate Court committed an error of law in rejecting the application under Order 41 Rule 27 of the Code of Civil Procedure preferred by the plaintiff?�

Findings which perpetrated the formulation of substantial question of law appear in paragraph 11 of the impugned judgment :

Order 41 Rule 27 of the Code of Civil Procedure, 1908 prescribes specific circumstances for production of additional evidence, may otherwise be necessary. It stipulates :

�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 his 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) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission.�

Dwelling upon scope of extent of judicial discretion by the Appellate Court in entertaining an additional evidence their Lordships in N. Kamalam (Dead) and Another Vs. Ayyasamy and Another, were pleased to hold :

�19. Incidentally, the provisions of Order 41 Rule 27 has not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal - It does not authorise any lacunae or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the Appellate Court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way. This Court in Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay and Others, has been candid enough to record that the requirement of the high Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. In para 9 of the judgment, this Court observed :

... In our view, a plain reading of Order 41 Rule 27 would depict that the rejection of the claim for production of additional evidence after a period of 10 years from the date of filing of the appeal, as noticed above, cannot be termed to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted.�

When the reasons assigned by the First Appellate Court in rejecting to admit additional evidence is tested on the principle of law laid down in N. Kamalam (supra) this Court does not find any error of law as would call for an interference.

Consequently, while answering the substantial question of law in negative against appellant/plaintiff, Appeal is dismissed. However, there shall be no costs.