Dipak Nana Jadhav v. Govind Ambadas Roy & Ors.

Mr. M.M. Sathaye for the petitioner. CORAM : D.G. KARNIK, J. DATE : 22ND FEBRUARY 2011 P.C. :

Heard learned counsel for the petitioner. By this application, the petitioner challenges the order dated 16th December 2010 passed by the Extra Joint Adhoc District Judge, Nashik, rejecting the petitioner’s application for permission to file additional evidence.

Under Order XLI Rule 27 of the Code of Civil Procedure (for short “the Code”), additional evidence can be allowed at the appellate stage in the following three circumstances:

(a) the Court from whose decree the appeal is 2 WP 970/2011 preferred has refused to admit evidence which ought to have been admitted, or (aa) 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 the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.

Admittedly, the present case is not covered by clauses (a) and (b). Counsel for the petitioner submits that the present case is covered by clause (aa) of Rule 27 of Order XLI of the Code. For establishing that the case fals under clause (aa), the petitioner was required to establish that notwithstanding the exercise of due diligence, the evidence (which is sought to be produced in appeal) was not within his knowledge or could not be produced by him when the decree against him was passed. 3 WP 970/2011 In the application, the petitioner had vaguely alleged that he had recently learnt that the respondent had received possession of some premises from Nashik Merchants Co-op. Bank Ltd. The date as well as the source of the knowledge is not disclosed in the application. It therefore cannot be said that the petitioner did not have the knowledge of the alleged event when the evidence in the suit was led and/or when the decree was passed by the trial Court. In paragraph 4 of the application, it is stated -

At the relevant time, the appellant was not aware as to how much area is exactly in possession of the landlord. The appellant was knowing that one premises, which is in occupation of Nashik Merchant Co-op. Bank Ltd., Nashik and evidence is also adduced to that effect.

Thus, the petitioner was aware even during the pendency of the suit, one premises belonging to the respondent were in occupation of the Nashik Merchants Co- op. Bank Ltd. Counsel for the petitioner submits that the premises were kept locked by the bank during the course of the trial and therefore the petitioner did not know whether the premises were still in the possession of the bank or possession thereof was surrendered to the landlord, i.e. the respondent herein. The bank carries on business everyday and is open everyday except on Sundays and holidays declared under the Negotiable Instruments Act. The fact that the premises were 4 WP 970/2011 locked was good enough knowledge to the petitioner that the respondent landlord had obtained possession even before the suit was decreed. In any event, with due diligence the petitioner could have discovered that the landlord had received the possession of the premises from the bank. Object of Order XLI Rule 27 of the Code is not to enable a party to fill up a lacuna in the evidence led before the trial Court.

In the circumstances, no error can be found in the order of the trial Court. The petition is rejected summarily.

(D.G. KARNIK, J.)