Smt. Rama Devi v. Smt. Cinta Devi @ Chintamani Devi

plaintiffs’/petitioners’ prayer for adducing additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. The petitioners/plaintiff in Title Suit No. 18 of 1999, after having lost in the Court of learned Sub-Judge-I, Supaul preferred the said Title Appeal No. 12 of 2010. 2 Patna High Court CWJC No.20402 of 2012 (3) dt.10-07-2013 Petitioners are the heirs of original plaintiff Shivendra Prasad Gupta. During the pendency of the title appeal, petitioners filed the petition under order XLI Rule 27 of the Code of Civil Procedure on 20.9.2010 and subsequently on 25.5.2011 seeking relief to bring on record the following documents as additional evidence:- (1) Certified copy of the plaint of T.S. No. 57 of 2000 ( Sanjeev Kumar and Shivendra Prasad Gupta) and (2) Certified copy of the examination-in-chief and cross-examination of plaintiff’s witness No. 13 Md. Jalil of Title Suit No. 150/2000 pending in the Court of Munsif, Supaul. Petitioners took aplea that said Sanjeev Kumar in T.S. No. 57 of 2005 had admitted that partition had taken place between him and his father through ‘punches’ and memorandum had been prepared on 5.1.1999 and, therefore, allegation in the present suit, out of which T.A. No. 57 of 2005 arose, that a Mahadanama had also been created in favour of Sanjeev Kumar which was Exhibit-E and upon which defendant witness no.5 Md. Jalil and the trial Court had heavily relied upon said Exhibit-E, is incorrect.These documents, according to the appellants/petitioners were crucial and essentials to examine whether Sanjeev Kumar was joint with father or separate and whether the evidence of D.W.5 was reliable and believable. 3 Patna High Court CWJC No.20402 of 2012 (3) dt.10-07-2013 Learned Court below, however, rejected the said petition on the ground that the petitioners/plaintiffs miserably failed to establish that notwithstanding the exercise of due diligence, such evidence was not within their knowledge at the time when the decree was passed. The question which arises in the present cae is as to whether this application under Article 227 of the Constitution of India can at all be maintained against an order rejecting a petition under Order XLI Rule 27 of the Code of Civil Procedure. This Court in case of Mahavir Singh and others vs. Naresh Chandra and another reported in (2001) 1 SCC 309 has held in most unequivocal terms that an order of refusal to take additional evidence under Order XLI Rule 27 of the Code of Civil Procedure is not revisable and during the pendency of the appeal, the correctness or otherwise of such order cannot be gone into. The Supreme Court dealing with Order XLI Rule 27 of the Code of Civil Procedure held in the above case that when the appellate Court did not find necessity to allow the application, the High Court in exercise of its revisional power could not have interfered with such an order, particularly when the whole appeal was not before it. The Supreme Court held that when the first appellate Court passed the order on the application filed under 4 Patna High Court CWJC No.20402 of 2012 (3) dt.10-07-2013 Order XLI Rule 27 CPC and if the first appellate Court was satisfied that the additional evidence was not required, such exercise of power cannot be questioned in a revisional jurisdiction. For the same reason I am of the view that validity of impugned cannot be gone into, in exercise of supervisor power under Article 227 of the Constitution of India. Mr. Rajendra Narain, learned Senior Counsel appearing on behalf of the petitioners has placed reliance on a Supreme Court judgment reported in AIR 2010 SC 690 ( Shyam Gopal Bindal Vs. Land Acquisition Officer) so as to contend that in the facts and circumstances of the case the application under Order XLI Rule 27 of the Code of Civil Procedure should not have been refused keeping in view the value of evidence which the parties intended to bring on record by way of additional evidence. This is to be noted that the said case of the Supreme Court in case of Shyam Gopal Bindal ( supra) is distinguishable for the reason that the said judgment was delivered in a case against final judgment passed in second appeal. The order impugned before the Supreme Court was not passed under Order XLI Rule 27 of the Code of Civil Procedure during the pendency of the appeal. In such view of the matter, I hold that an application under Article 227 of the Constitution of India cannot be 5 Patna High Court CWJC No.20402 of 2012 (3) dt.10-07-2013 maintained against an order allowing or refusing the application under Order XLI Rule 27 of the Code of Civil Procedure during the pendency of the appeal before the Court below. This application is, accordingly, dismissed. (Chakradhari Sharan Singh, J) Arun Kumar/-