The Patna High Court, while allowing a petition filed under Article 227 of the Constitution of India by the petitioners for setting aside the order by the learned Additional District Judge, whereby the application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 filed by the petitioners was rejected, held that the application for taking additional evidence at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal and the same could not be disposed of prior to the final stage of hearing of the appeal.
Brief Facts:
The petitioners were plaintiffs in the trial court and became appellants in Title Appeal in which the impugned order was passed. One Bhagwati Chaubey sold a piece of land to the petitioners. After the purchase of the aforesaid properties, the names of the ancestors of the petitioners were duly mutated. During the revisional survey operation, the name Shiv Dahin Chaubey was entered with regard to the Schedule-II land of the petitioners. The petitioners were unaware of the erroneous entry but they came to know about the same when the defendants tried to wrongfully interfere in the peaceful possession of the petitioners. Thereafter the petitioners filed Title Suit. Then, the petitioners came to know about the execution of power of attorney by Bhagwati Chaubey in favor of Shiv Dahin Chaubey with regard to properties that were in dispute. Hence, the petitioners filed the petition for bringing the said document on record by marking it exhibit as additional evidence. The learned first appellate court rejected the petition filed by the petitioners vide order dated 20.11.2021 at the pre-hearing stage of the appeal. Hence, the present petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the order of the learned first appellate court suffers from jurisdictional error in disposing of the application at the pre-hearing stage as a petition filed for additional evidence could be considered only while hearing the appeal and not separately and, that too, by entering into appreciation of facts.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that there is no infirmity in the impugned order and the same needs to be sustained.
Observations of the Court:
The Court noted that the introduction of power of attorney at the appellate stage would always be seen with circumspection. But, if it is a registered document, there is a presumption of genuineness of its execution.
The Court observed that the appellate court has to give a finding on whether it requires a document for the pronouncement of judgment or for any other substantial cause. However, such a requirement could be asserted at the final stage of the appeal and not at the time of pre-hearing. The Court said that the application for taking additional evidence at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal and the same could not be disposed of prior to the final stage of hearing of the appeal. However, in the present case, the learned first appellate court has disposed of the petition at the very beginning of the appeal.
The decision of the Court:
The Patna High Court, allowing the petition, held that the order dated 26.11.2021 passed in Title Appeal is set aside and the matter is remanded to the learned first appellate court.
Case Title: Mossamat Chintamani Devi & Ors. v Lalan Chaubey & Anr.
Coram: Hon’ble Justice Arun Kumar Jha
Case no.: CIVIL MISCELLANEOUS JURISDICTION No.35 of 2022
Advocate for the Petitioner: Mr. J. S. Arora
Advocate for the Respondents: Mr. Ashok Kumar Pathak
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