Risal Singh vs Bhagwat Singh and Others

S.N. Srivastava, J.—Challenge in this petition is to the order dated 17.1.2004 passed by Additional District Judge (Court No. 6) Bijnor, whereby application No. C52 under Order XLI, Rule 27, CPC was allowed.

Heard learned Counsel for the parties.

Learned Counsel for the Petitioner began his submissions urging that the appellate court has not recorded any finding whether the ingredients of Order XLI, Rule 27, CPC were satisfied attended with further submission that unless the ingredients are satisfied the documents cannot be admitted on record as additional evidence. The learned Counsel also assailed the order on the ground that the impugned order was passed in antagonism of the relevant provisions of Order XLI, Rule 27, CPC Per contra, learned Counsel for the opposite parties contended that the findings were rightly recorded taking into reckoning the revenue records and also the sale deed relating to the disputed property.

Considered the arguments of the parties.

In connection with the above submissions, Order XLI, Rule 27 being relevant is quoted below:

(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) Wherever additional evidence is allowed to be produced by an appellate court, the Court shall record the reason for its admission.

From a scrutiny of the above provisions, it is explicit that any of the ingredients given under Order XLI, Rule 27, CPC shall be satisfied before admitting any additional evidence at the appellate stage. From a glance through the order impugned herein, it brooks no dispute that no finding has been recorded by the lower appellate court on the point whether any of the ingredients contained in Order XLI, Rule 27, CPC is satisfied before admitting the documents on record as additional evidence.

In the above perspective, I am of the view that there is complete non-application of mind by the appellate court to the averments pleaded by the parties on the grounds enumerated in Order XLI, Rule 27 of the CPC and the objection preferred by the Respondent in this regard. By this reckoning, I have no hesitation to hold that non-consideration of pleading of parties relating to additional evidence including the averments made in the affidavit, renders the impugned order illegal besides the one suffering from the element of arbitrariness and impugned order is liable to be quashed.

In the facts and the circumstances of the case, the writ petition deserves to be allowed and the courts below may be directed to decide the application under Order XLI, Rule 27, CPC of the Plaintiff Appellant and while deciding the application, the appellate court shall consider the averments made in the application/objection and other materials on the record in accordance with law and after giving opportunity to the parties.

In the result, the writ petition succeeds and is allowed and the impugned order dated 17.1.2004 is quashed and the appellate court is directed to decide the application taking into consideration the objection of the Respondent.

Learned Counsel for the Respondents stated at this stage that application has been heard finally. In view of the above, this Court considers it appropriate that the appeal be decided after hearing the parties as early as possible within a period not exceeding three weeks.

Certified copy of this order be issued expeditiously on payment of usual charges.