Ved Pal and Others vs Tek Ram

Sabina, J.—Petitioners have filed this petition under Article 227 of the Constitution of India seeking quashing of order dated 16.12.2010 passed by the Additional District Judge Kaithal whereby an application moved by the Plaintiff under Order 41 Rule 27 of the CPC has been allowed.

Learned Counsel for the Petitioners has submitted that the First appellate Court had erred in allowing the application for additional evidence. The document now sought to be produced on record had no relevance to the controversy in question.

After hearing the learned Counsel for the Petitioners, I am of the opinion that the present petition deserves dismissal. Order 41 Rule 27 of the CPC reads as under:

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 be produced by an Appellate Court, the Court shall record the reason for its admission

Plaintiff had filed a suit for declaration and joint possession challenging decree dated 30.10.1981. The suit of the Plaintiff was dismissed by the trial Court vide judgment and decree dated 20.3.2007. Aggrieved by the said judgment and decree, Plaintiff preferred an appeal along with an application for producing birth certificate of Ved Pal-Defendant No. 1 by way of additional evidence. The First appellate Court allowed the application for additional evidence and set aside the judgment and decree passed by the trial Court and remanded the case back to the trial Court for a fresh decision vide judgment and decree dated 4.6.2009. Aggrieved by the same, Defendant preferred SAO No. 41/2009. The said appeal was allowed by this Court vide order dated 10.8.2010 and the matter was remanded back to the First Appellate Court to decide the appeal on merits in accordance with law. It was held that the First Appellate Court could either itself record the additional evidence or could ask the trial Court to record the additional evidence and send a report to the Appellate Court. However, the case could not be remanded back to the trial Court. Now vide the impugned order, the First Appellate Court has allowed the application under Order 41 Rule 27 of the CPC and has directed the trial Court to record the additional evidence and then sent a report to the First Appellate Court.

The case of the Plaintiff was that it was very necessary to establish the birth entry of Defendant No. 1 Ved Pal in order to substantiate the plea that the impugned judgment and decree could not have been suffered in favour of Defendant No. 1 on 30.10.1981 as he was born on 20.7.1986. The additional evidence now sought to be placed on record is material for the just decision of this case and in these circumstances, the learned First appellate Court has rightly allowed the application filed by the Plaintiff under Order 41 Rule 27 of the Code of Civil Procedure. The trial Court has been directed to record evidence to be led by the Plaintiff to prove the birth entry of Ved Pal. The Plaintiff would be at liberty to produce all the requisite documents in regard thereto. The apprehension of the learned Counsel for the Petitioner that now the Plaintiff who had not earlier appeared in the witness box may lead evidence qua the remaining pleas also is mis-founded as the learned First Appellate Court has directed the trial Court only to record evidence qua the birth entry of Ved Pal. No ground for interference is made out.

Dismissed.