DR.DILIP SARBADHIKARI & Anr. v. MD. HASSAN SAYEED

the trial Court but such prayer was rejected as only on the ground of delay. Thus when at appellate stage the same document was sought to be filed by way of additional evidence, the document in question being a registered sale deed dated 11.12.1986, has been taken on record with the following finding :- “ Hence I find that it is a fit case in which the C.C. of the Sale Deed dated 11.12.1986 be taken as Addl. Evidence for the just decision of the case…….” The opinion expressed by the Court below would fulfill the requirement under Order XLI Rule 27 of the Code of Civil Procedure inasmuch as it is the finding of the Court below that such document will be necessary for effective disposal of the appeal. Reliance placed by the counsel for the petitioner in the case of The Municipal Corporation of Greater Bombay Vrs. Lala Pancham and others reported in AIR 1965 SC 1008 and in the case of Smt. Pramod Kumari Bhatia v. Om Prakash Bhatia and others - 2 - reported in AIR 1980 SC446 instead of supporting the case of the petitioner goes against him. It has been indicated therein that the appellate Court should not allow any additional evidence unless it is satisfied that the same is required for the effective disposal of the case. The further reliance placed by the counsel for the petitioner on the decision of the Calcutta High Court in the case of B.K. Ghose v. Dwijendra Chunder Ghose and another reported in AIR 1951 Calcutta 414 is also wholly misplaced because there also it has been held that need for additional evidence must be the need of the Court. As noted above when the Court has recorded such a finding that it would be necessary to allow the evidence for effective disposal of the appeal, it cannot be said that the exercise of power by the court below under Order XLI Rule 27 of the C.P.C. was erroneous. The objection of the petitioner regarding the belated filing of the document before the appellate court is also not tenable in the facts of the present case inasmuch as the document in question was filed immediately after filing of the appeal by the plaintiff-appellant – opposite party. That being so, this Civil Revision application is wholly misconceived and is hereby dismissed. Bibhash (Mihir Kumar Jha, J.)