Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7120 of 2013 ====================================================== Ashok Kumar Singh Son Of Late Kesho Prasad Singh Resident Of Vllage - Pipraura, P.S. Madanpur, District - Aurangabad ( Bihar ) .... .... Petitioner/s Versus 1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Patna 2. Shri Ramchandra Yadav Son Of Late Ramlagan Yadav Resident Of Vllage - Lakshman Bigha, P.S. Madanpur, District - Aurangabad ( Bihar ) 3. Smt. Razia Devi W/O Shri Ramchandra Yadav Resident Of Vllage - Lakshman Bigha, P.S. Madanpur, District - Aurangabad ( Bihar ) 4. Smt. Amira Devi W/O Late Jagdish Singh Resident Of Vllage - Pipraura, P.S. Madanpur, District - Aurangabad ( Bihar ) .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.7309 of 2013 ====================================================== Ashok Kumar Singh Son Of Late Kesho Prasad Singh Resident Of Village Pipraura, P.S. Madanpur, District - Aurangabad (Bihar) .... .... Petitioner/s Versus 1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Patna 2. Shri Ramchandra Yadav Son Of Late Ramlagan Yadav Resident Of Village Lakshman Bigha, P.S. Madanpur, District Aurangabad (Bihar) 3. Smt. Razia Devi W/O Shri Ramchandra Yadav Resident Of Village Lakshman Bigha, P.S. Madanpur, District Aurangabad (Bihar) 4. Smt. Amira Devi W/O Late Jagdish Singh Resident Of Village Pipraura, P.S. Madanpur, District - Aurangabad (Bihar) .... .... Respondent/s ====================================================== Appearance : (In CWJC No.7120 of 2013) For the Petitioner/s : Mr. Birendra Sing Mr. Sunil Kumar Singh For the State : Mr. Rounak Kumar Singh (In CWJC No.7309 of 2013) For the Petitioner/s : For the State : Mr. Subodh Kumar, A.C. to G.P.-14 ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 4 25-07-2013 Both these applications have been filed under Article 227 of
Legal Reasoning
Patna High Court CWJC No.7120 of 2013 (4) dt.25-07-2013 P2/5 the Constitution of India. In C.W.J.C. No. 7120 of 2013, the order dated 20.02.2013 passed in T.A. No. 51/2008/02/2009 by learned 1st Additional District Judge, Aurangabad, whereby the petitioner’s application under Order XLI Rule 27 of the Code of Civil Procedure came to be rejected, is under challenge. 2. It appears that by filing said application under Order XLI Rule 27 dated 05.01.2013 before the Court below, the petitioner prayed for admitting into evidence certified copies of the sale deeds bearing No. 17628 and 17629 of 1976 as well as sale deed No. 3801 dated 01.04.2004, by way of additional evidence at the stage of appeal. The petition dated 05.01.2013, Annexure-4 to the present application, contains, inter alia, an assertion that all of a sudden he learnt from one Arvind Kumar Singh on 05.12.2012 that two registered sale deeds had been executed by father of said Arvind Kumar Singh, late Ambika Singh in favour of Sheo Kumar Singh. After having learnt about it, they obtained certified copies of the said registered sale deeds executed in the year 1976 and 2004. This is to be noted that Title appeal No. 51/2008/02/2009 arises out of a Title Suit No. 96 of 2004 filed by the petitioner for a declaration that the defendant Amira Devi had no right, title and authority to execute sale deeds No. 5871 and 5872, dated 19.05.2004 and 20.05.2004 respectively with respect to plot No. 1505 admeasuring 46 decimals each. The claim of the petitioner / Patna High Court CWJC No.7120 of 2013 (4) dt.25-07-2013 P3/5 plaintiff is based on the fact that there was a partition in the year 1964 itself. On that ground that contents of sale deeds executed in the year 1976 and 2004 strengthen the stand of the plaintiff / petitioner about the partition having taken place in the year 1964, it is submitted, these documents were required for effective adjudication of the appeal and should have been admitted into evidence as additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. 3. It further appears that similar prayer was earlier made by the petitioner by filing application under Order XLI Rule 27 before the appellate Court which was rejected vide an order dated 14.12.2012 as certified copies of deeds of the year 1976 and 2004 were not brought on record. The said order dated 14.12.2012 has been challenged in C.W.J.C. No. 7309 of 2013. This is the reason why both the applications have been heard and are being disposed of by a common order. 4. As has been noted above, after the rejection of the earlier application vide order dated 14.12.2012, the petitioner filed a fresh application under Order XLI Rule 27 along with certified copies of the two sale deeds as the appellant wanted to get these documents taken into evidence so as to strengthen his case that there was partition in the year 1964 itself. Learned Court below however, in its impugned order recorded that the registered Patna High Court CWJC No.7120 of 2013 (4) dt.25-07-2013 P4/5 partition deed of the year 1964 is already there as an exhibit to prove the partition as asserted by the plaintiff. In such circumstance, the Court below refused to admit these two deeds to be taken into evidence at the stage of appeal as there was already registered deed of partition on record as evidence.
Legal Reasoning
5. Learned counsel appearing on behalf of the petitioner has submitted that these two sale deeds were important for adjudication by the appellate Court particularly on the point of partition as these documents referred to partition in the family through registered partition deed of the year 1964. He contends that the sale deeds are clinching evidence on the issue of partition having taken place by virtue of partition deed of the year 1964. 6. Order XLI Rule 27 of Code of Civil Procedure enables an appellate Court to allow production of additional evidence, inter alia, if 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 exercise of due diligence, be produced by him at the time when decree of appeal was passed. In my opinion, it is not mandatory for the appellate Court to allow such additional documents to be taken into evidence. The provision casts discretion on the appellate Court whether to allow such additional evidence to be produce or not. Patna High Court CWJC No.7120 of 2013 (4) dt.25-07-2013 P5/5 7. From the impugned order, I find that learned Court below while refusing the application for production of additional evidence recorded his reasoning to the effect that since registered partition deed of 1964 itself was on record as an exhibit, certified copies of the sale deeds would not help the Court in a better way. The learned Court below did not find the story of ignorance of the sale deeds and sudden knowledge about the same, convincing. 8. I am further of the view that if any evidence has only slight and remote bearing in question in controversy it may not be allowed to be produced as additional evidence in an appeal. Such documents which turn the scale in favour of one party or the other or is likely to materially affect the decision only are required to be considered for production as additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. 9. For the reason as aforesaid, I do not find any illegality in the impugned orders dated 20.02.2013 challenged in C.W.J.C. No. 7120 of 2013 and 14.12.2012 challenged in C.W.J.C. No. 7309 of 2013 both arising out of Title Appeal No. 51/2008/02/2009 passed by learned Additional District Judge-I, Aurangabad. 10. These applications are accordingly dismissed. Saif/- (Chakradhari Sharan Singh, J.)