High Court
Case Details
CRP 428/2012 B E F O R E HON’BLE MR. JUSTICE A.K.GOEL,THE CHIEF JUSTICE This petition has been preferred against order of the lower Appellate Court date d 22.08.2012 declining to permit the petitioner to lead additional evidence at t he appellate stage. The appellant filed suit for declaration of his title to the land in dispute and
Legal Reasoning
for eviction of the defendant. The defendant denied the title of the plaintiff and set up his own title based o n oral sale in his favour in the year 1949. Following issues were framed :- (cid:28)1) 2) 3) 4) Whether suit is maintainable in its present form? Whether suit is bad for non-joinder and mis-joinder of parties? Whether the suit is barred U/S 34 of Specific Relief Act or Order 2 Rule Whether there is any cause of action for the suit? 2 of CPC ? Whether suit is barred by limitation ? Whether the alleged sale deed is valid sale deed under Registration Act 5) 6) and as well as under CPC Act ? 7) 8) nd ? 9) Whether plaintiff has got right, title and interest over suit land? Whether the defendants have right, title and possession over the suit la Whether the proforma defendants No.2 to 6 have right, title and interest over the suit land? 10) To what reliefs the plaintiff is entitled ? (cid:29) Whether land covered by dag No.778 of patta No.154 of the settlement in After trial, the trial court dismissed the suit. On appeal, the lower Appellate Court held that the trial Court did not frame proper issues and on that ground s et aside the judgment of the trial Court and remanded the matter for fresh decis ion after re-framing the issues as follows : (cid:28)(1) the year 1930-31 became dag No.91 measuring 1B-2K-13L land exclusively in the na me of Sobhan Kakoty and dag No.451 under said patta of 1930-31 became dag No.92 covering a plot of land 1B-3K-12L exclusively in the name of Padma alias Dharani dhar Kakoty ? (2) nd described in the schedule of the plaint? Whether the defendants will be liable to be evicted from Schedule-’Kha’ (3) land of the plaint by demolishing their construction over the schedule-’Kha’ lan d and khas possession can be handed to the plaintiff as prayed for ? (4) Whether the proforma defendants are liable to be evicted from Schedule-G a(1) and Schedule-Ga(2) land of the plaint by demolishing their unauthorized con struction over the suit land and possession of the plaintiff can be declared to be confirmed in respect of said plot of land? (cid:29) Whether the plaintiff has his right, title and interest over the suit la On further appeal to this Court by the defendant, the order of remand was set as ide with the observation that under Order 41 Rule 24 CPC, the Appellate Court it self could go into all the questions and if necessary, it could take additional evidence. Thereafter, the appellant filed application under Order 41 Rule 27 CPC to produc e jamabondi of the suit land for the settlement year 1930-31. The application wa s opposed by the defendant/respondent by submitting that the plaintiff had ample opportunity to lead evidence during trial and there was no reason to permit add itional evidence at the appellate stage. There was nothing to show that the plai ntiff, in spite of due diligence, could not produce the said document earlier. The lower Appellate Court upheld the objection of the respondents as follows : (cid:28)In the instant petition No.205/2012, no reason whatsoever is assigned, as to wh y the Plaintiff-Appellant could not produce and prove the said Jamabandi of the suit land for the settlement operation in the year 1930-31 in the original suit, not to speak about ’exercise due diligence’, as required under Order 41, Rule 2 7(1)(aa) of the C.P.C. (cid:29) I have heard learned counsel for the parties. Learned counsel for the petitioner submitted that the document was necessary for just decision of the case and was not earlier produced as the stand in the writ ten statement was that the land had been purchased prior to 1949. The petitioner wanted to show that Hira Kalita from whom the defendant purchased the land had already died prior to 1949 and even in the jamabandi for the year 1930-41, name of the said vendor was not recorded as owner.
Legal Reasoning
Learned counsel for the respondent submits that the petitioner could have produc ed the said document to establish his case and unless it could be shown that in spite of due diligence he could not produce such document, the petitioner could not be allowed to lead additional evidence. The lower Appellate Court having dec lined such prayer, no interference is called for by this Court under Article 227 of the Constitution if there is no illegally in the impugned order. I have considered the rival submissions. Permission to produce additional evidence in Appellate Court can be granted in t he interest of justice if either the document was produced but not taken on reco rd erroneously or the document was not in the knowledge of a party and could not be produced in spite of due diligence or if the Court itself considers the docu ment to be necessary. Such prayer cannot be granted mechanically for the asking. However, if the Court considers additional evidence, situation may be different . In the present case, it is not the Court which has considered the production o f document to be necessary nor it has been shown that the plaintiff could not pr oduce the document in spite of due diligence nor it is a case where the document was produced but erroneously not placed on record. Thus, in terms of provision s of Order 41 Rule 27, case for permitting the additional evidence was not made out.
Decision
In these circumstances, no ground is made out to interfere with the impugned ord er. The petition is dismissed. The parties may appear before the lower Appellate Court for further proceedings on 11.04.2013.