Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17300 of 2010 ====================================================== 1. Most. Rampari Devi W/O Late Chhote Lal Sah 2. Shankar Sah 3. Bablu Sah Both are sons of Late Chhote Lal Sah All are residents of village- Tunyahi, P.S. & Distt.- Madhepura Versus .... .... Petitioners 1. Sahdeo Sah S/O Late Dawrik Sah 2. Bachan Sah 3. Nandan Sah 4. Rajo Sah All are sons of Sahdeo Sah 5. Kailu Sah S/O Late Sukhdeo Sah 6. Jago Sah S/O Kailu Sah All are resident of village- Tuniyahi, P.S. and Distt.- Madhepura. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Sunil Kr. Singh Mr. Md. Waliur Rahman For the Respondent/s : Mr. Rajiv Roy
Legal Reasoning
Mr. Arun Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 5 09-07-2013 Heard learned counsel for the petitioners and learned counsel appearing on behalf of the respondents. The petitioners are aggrieved by the order dated 30.07.2010 passed by learned Additional District Judge, F.T.C.-II, Madhepura in T.A. No. 35 of 2007 whereby the application filed by the petitioners dated 16.07.2010 under Order XLI Rule 27 for production of additional evidence came to be rejected. In a suit filed in the year 1985, the trial Court passed a Patna High Court CWJC No.17300 of 2010 (5) dt.09-07-2013 P2/6 judgment and decree dated 05.06.2007. The suit was filed by the father of the present petitioners. After dismissal of the suit, father of the petitioners Chhotte Lal Sah preferred appeal. During the pendency of the appeal, the application under Order XLI Rule 27 was filed on behalf of the petitioners seeking permission to bring on record following two documents as additional evidence:- I. “The money order receipt dated 26.06.1975. II. The information obtained during the pendency of appeal that Chhote Lal Sah was on duty at Patna on 24.04.1982.” The petition under Order XLI Rule 27 of the Code of Civil Procedure was filed by the heirs of Chhote Lal Sah who died during the pendency of appeal. The appellants took a plea that these documents were crucial for the purpose of proper adjudication of the dispute in question and these documents were not within the knowledge of the appellant Chhote Lal Sah and his family members in course of trial. Learned Court below rejected such prayer on the ground that the documents sought to be brought on record as additional evidence did not come within the purview of pleadings and there was no explanation as to why such documents could not be filed in the lower Court. This, coupled with the limitations of the Patna High Court CWJC No.17300 of 2010 (5) dt.09-07-2013 P3/6 appellate Court under Order XLI Rule 27, to admit an additional evidence, rejected the petition. Learned counsel appearing on behalf of the petitioners has submitted that it was obligatory for the learned Court below to have allowed petitioners’ prayer to bring these documents on record as the documents were required to do substantial justice. He has placed reliance on Order 41 Rule 27 (1)(b) so as to contend that there being a substantial cause, the appellate Court was required to allow the petitioners to produce the documents as additional evidence. He has placed heavy reliance on a Supreme Court judgment reported in 2008(8) SCC 511 (North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das (Dead) by LRS.) paragraph-20 of which reads as follows:- “20. In any event, had the court found the additional documents, sought to be admitted, necessary to pronounce the judgment in the appeal, in a more satisfactory manner, it would have allowed the application and, if not, the application would have been dismissed. Nonetheless, to consider the application before taking up the appeal. We say no more at this stage, as the aforementioned applications are yet to be considered by the High Court on merits in the light of the legal position, briefly set out hereinabove. In view of the aforenoted factual scenario, we are of the opinion that the impugned judgment and the orders are erroneous and cannot be sustained.” it was bound He has also placed reliance on 2010 (2) SCC 316 (Shyam Gopal Bindal & Ors. Vs. Land Acquisition Officer & Anr.) so as Patna High Court CWJC No.17300 of 2010 (5) dt.09-07-2013 P4/6 to contend that the documents being necessary for just decision of the matter in Court below should have allowed the petitioners to produce documents as additional evidence. Learned counsel appearing on behalf of the respondents on the other hand opposed the prayer with a plea the provision as contained in Order XLI Rule 27 (1)(b) confers power upon the appellate Court for production of a document if it requires, so as to enable him to pronounce judgment or for any other substantial cause. Referring to the documents sought to be brought on record as additional evidence, learned counsel has submitted that no such facts are sought to be brought on record which were not within the knowledge of the petitioners or the original plaintiff / appellant Chhote Lal Sah. I have perused the impugned order. I am of the opinion that power of an appellate Court under Sub-clause (b) of Clause-1 of Order XLI Rule 27 is discretionary. Whether an appellate Court, for the purpose of pronouncing judgment or for any other substantial cause, requires any document to be produced or not is upto the Appellate Court to decide. Such discretion unless exercised arbitrarily without having regard to settled law and thus causing grave injustice to the party, would need no interference. In the present case, out of the two documents which are Patna High Court CWJC No.17300 of 2010 (5) dt.09-07-2013 P5/6 sought to be produced as additional evidence, one is the money- order receipt dated 26.06.1975. Learned counsel for the petitioners contends that this receipt would show payment of consideration amount with respect to the sale deed executed on 08.12.1978. He has, however, failed to demonstrate as to what amount was transferred through the money order with respect to which the receipt is being sought to be brought on record. As a matter of fact, he has not been able to say as to what in fact was the consideration amount. Further, the date of the said money order receipt i.e. 26.06.1975 cannot be easily connected to the sale deed dated 18.12.1978. The other document is an information which the petitioners, heirs of Chhote Lal Sah, are said to have obtained under the Right to Information Act, 2005 as regards presence of Chhote Lal Sah, in course of his discharge of official duty at Patna on 08.12.1978. The document to show whether he was on duty on the relevant date could have been brought on record in course of trial if such evidence was at all required. I have considered these two documents and I am of the view that these documents are not important to be brought on record as additional evidence. The issue relied upon by learned counsel for the petitioners is of no help in the facts and circumstances of the case, inasmuch as I have myself examined the nature of the Patna High Court CWJC No.17300 of 2010 (5) dt.09-07-2013 P6/6 documents sought to be brought on record as additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. I do not find any illegality in the impugned order. This application is accordingly dismissed. Saif/- (Chakradhari Sharan Singh, J.)