The single judge bench of the Jharkhand High Court held that while dealing with the provision of Order 41 Rule 27 CPC “true test” to be adjudged by the appellate court as to whether the appellate court can pronounce the judgment on the material before it without taking into consideration the additional evidence sought to be adduced. Such an occasion would arise only if on examining the evidence sought as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court.
Brief facts
The factual matrix of the case is that the suit premises belong to one Lalji Bhagat and he died leaving behind his two sons. After partition, the suit land was allotted to Dinesh Bhagat, and inducted the defendant as a monthly tenant upon the suit land. Thereafter, the plaintiff purchased the suit property from the rightful owner Dinesh Bhagat, obtained symbolic possession over the suit property, and acquired very ownership right and title over the suit premises. Furthermore, Plaintiff also informed Defendant about the purchase of the suit land and also served the legal notice to the defendant demanding the payment of arrears of rent to be paid to the plaintiff henceforth, which was duly served upon the defendant. The defendant replied to the notice sent by the plaintiff but paid nothing. Also, the plaintiff required the suit premises for personal bonafide, use and occupation. Therefore, the eviction suit was filed. The suit of the plaintiff was decreed and the appeal was filed by the present Petitioner/Defendant, during the pendency of the appeal an application under Order 41 Rule 27 was filed which was rejected by the learned appellate court which resulted in the present Petition.
Contentions of the Petitioner
The Petitioner contended that the learned court while rejecting the application failed to take into consideration that the documents proposed to be adduced as additional evidence are very much essential in this case for full and final adjudication of the lis between the parties. It was furthermore submitted that there exists no relationship of landlord and tenant between the plaintiff and defendant/petitioner. Also, some documents were kept in old boxes which were not available during the trial of the case, hence, the same could not be adduced in evidence during the trial of the suit.
Contentions of the Respondent
The Respondent contended that the learned court was right in rejecting the application of the petitioner observing that it was with the object to fill up the lacuna or to patch up weak points in the case of the defendant. It was furthermore contended that the documents produced on behalf of the appellant are outside the pleadings and cannot be accepted at this time since the appellant's justifications for not producing the requested documentary evidence before the learned trial court were deemed insufficient and rejected.
Observations of the court
The Hon’ble Court observed that the provisions of Order 41 Rule 27 of the Code of Civil Procedure grant power to the appellate court to grant leave to either party to adduce additional evidence on two vital conditions: -
- the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. However, in the present scenario, this ground is not available to the Petitioner as he himself admitted that the documents were not available during the trial and the same was found in an old box. Therefore, there was no occasion to file the said documents before the trial court of its refusal to admit.
- The person requesting further evidence must prove that, even with reasonable diligence, he was unaware of the material or was unable to get it at the time of the order against which the appeal was filed. The present petitioner failed to conduct due diligence in submitting the application in accordance with Order 41 Rule 27 CPC, according to the learned appellate court's findings. A casual claim by the petitioner that they had no awareness of the aforementioned document, which was stored in an old box, cannot be accepted because it seems that there was a full dress trial for a considerable amount of time before the relevant trial court.
It was furthermore observed that the concerned appellate court may consider the ground at the appropriate stage of the case hearing and may pass an appropriate order in the interest of justice that is when the appellate court requires any documents to be produced or any witness to be examined in order for it to pronounce judgment or for any other substantial cause.
The court relied upon the judgment titled Union of India Versus Ibrahim Uddin and Anr.
It was noted that when addressing the Order 41 Rule 27 CPC rule, the appellate court must determine the "true test," as to whether it may provide a decision based solely on the information that is presented to it and ignore any additional evidence sought to be adduced. A situation like this would only occur if the court determines after examining the evidence requested that there is an inherent lacuna or defect.
Based on these considerations, the court was of the view that the impugned order is not required to be interfered with at present.
The decision of the court
With the above direction, the court dismissed the petition.
Case title: Jagdish Ram Gupta @ Jagdish Ram Vs Shiv Shankar Prasad Swarnkar
Coram: Hon’ble Mr. Justice Pradeep Kumar Srivastava
Case No.: C.M.P. No. 328 of 2023
Advocate for the Petitioner: Mr. P.K. Mukhopadhyay, Advocate
Advocate for the Respondent: Mr. A.K. Sahani, Advocate
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