In Parsotim Thakur and Others v. Lal Mohar Thakur and Others AIR
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.754 of 2025 Bamadev Purohit Petitioner …. Mr. H.K. Mund, Sr. Advocate -Versus- Duryodhan @Durjan Chhatria & Anr. …. Opposite Parties None
Legal Reasoning
CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 16.05.2025 Order No. 01. 1. Heard Mr. Mund, learned Senior Advocate appearing for the petitioner. 2. No notices are issued to the opposite parties as the matter is disposed of at the stage of admission. 3. Instant petition is filed by the petitioner challenging the correctness of the impugned order dated 25th March, 2025 at Annexure-1 passed in connection with R.F.A. No.12 of 2024 by learned Additional District Judge, Dharamgarh, Kalahandi on the grounds stated therein. 4. Mr. Mund, learned Senior Advocate for the petitioner submits that the additional evidence in terms of under Order 41 Rule 27 CPC as per Annexure-5 was moved but it has been declined on the premise that there has been no plausible explanation offered as to what prevented him in filing such evidence earlier. The further Page 1 of 4 submission is that any such additional evidence could be considered by the learned Court below at the time of final hearing and disposal of the appeal and hence, it ought not to have been rejected outrightly and therefore, the impugned order at Annexure-1 is liable to be interfered with. In support of such contention to consider additional evidence at the time of final disposal of the appeal, Mr. Mund, learned Senior Advocate refers to the following decisions, such as, Sankar Pradhan Vrs. Premananda Pradhan and others (2016)1 ILR (Cuttack)1151 and Maheswar Pradhan Vrs. Sushama Nayak & others (2016) 1 CLR 1201. 5. In Sankar Pradhan (supra), this Court had the occasion to consider acceptability of additional evidence in terms of Order 41 Rule 27 CPC and concluded that it shall to be examined at the time of hearing of the appeal. For better appreciation, the relevant extract of the decision (supra) is reproduced hereinbelow: “ 7. In Parsotim Thakur and Others Vs. Lal Mohar Thakur and Others AIR 1931 143 (Privy Council), it is held that under Cl. (1)(b) of Rule 27 it is only where the appellate Court "requires" it, (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court for any other judgment or to pronounce substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands some inherent lacuna or defect becomes apparent." It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as this it the Court adopts stands. Wherever Page 2 of 4 procedure it is bound by Rule 27(2) to record its reasons for so doing (emphasis laid). The same view was taken by this Court in the cases of Parsotim Thakur and Others vs. Lal Mohar Thakur and Others AIR 1931 143 (Privy Council) and Parsotim Thakur and Others vs. Lal Mohar Thakur and Others AIR 1931 143 (Privy Council). 8. Keeping in view the enunciation of law laid down by the Privy Council in Persotim Thakur (supra), this Court has examined the case. Hearing of the appeal has not yet commenced. The appellate court is yet to examine the pleadings of the parties and evidence of both oral as well as documentary to adjudge the requirement of provisions of clause (b). Application for adducing additional evidence can only be considered at the time of hearing of the appeal. The learned lower appellate court has not exercised its discretionary power in a judicial manner. 9. In view of the same, the order dated 9.5.2001 passed by the learned Civil Judge (Sr. Division), Athagarh in Title Appeal No. 6 of 1996 is quashed. The appellate court is directed to consider the application of the petitioner for adducing the additional evidence at the time of hearing of the appeal. The appellate court is further directed to conclude the hearing of the appeal within three months.” Similarly in Maheswar Pradhan (supra), this Court concluded that the application under Order 41 Rule 27 CPC is to be duly considered at the time of hearing of the appeal, when the lower Appellate Court is to examine the pleadings of the parties and evidence to adjudge the requirement of Rule 27(b) of Order 41 CPC. 6. Considering the case laws referred to herein above and submission of Mr. Mund, learned Senior Advocate for the petitioner and as such an application under Order 41 Rule 27 CPC was moved before the learned Court below in appeal but was rejected, the Page 3 of 4 Court is of the humble view that instead of such rejection, acceptability or otherwise should have been considered at the time of final hearing of the appeal. So, therefore, the conclusion of the Court is that the impugned order as at Annexure-1 is required to be interfered with. 7. 8. Accordingly, it is ordered. In the result, the CMP stands allowed. Consequently, the impugned order dated 25th March, 2025 at Annexure-1 passed in connection with R.F.A. No.12 of 2024 by the learned Additional District Judge, Dharamgarh, Kalahandi is hereby set aside with the direction as aforesaid to consider the additional evidence receivable in terms of Order 41 Rule 27 CPC at the time of final disposal of the appeal. 9. In the circumstances, however, there is no order as to costs. 10. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: OHC, CUTTACK Date: 17-May-2025 17:46:31 Page 4 of 4