Allahabad High Court
Ravindra Nath Gupta vs A.D.J. Ct.2 Hardoi And 2 Ors. on 24 August, 2023
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:56730
Court No. - 17
Case :- WRIT - C No. - 1000388 of 2005
Petitioner :- Ravindra Nath Gupta
Respondent :- A.D.J. Ct.2 Hardoi And 2 Ors.
Counsel for Petitioner :- A.Z. Siddiqui,A.Z. Siddiqui,Hari Narayan Singh
Counsel for Respondent :- C.S.C.,Anurag Narain
Hon'ble Alok Mathur,J.
Heard Shri A. Z. Siddiqui, learned counsel for the petitioners as well as learned Standing Counsel.
By means of the present petition the petitioner has challenged the order passed by the learned Additional District Judge, Hardoi dated 14.10.2004 whereby he has rejected the application under Order 41, Rule 27 CPC.
It has been submitted by the learned counsel for the petitioner that a suit for injunction was preferred in the Court of Civil Judge, Junior Division (West) Hardoi numbered as R.S.No. 293/98.
In the said suit it was alleged that the father of the petitioner was in possession of the disputed house which was constructed by the father of the petitioner Rameshwar Prasad about 60 years ago and on the eastern side of the house exist an open land which was used as 'sahan' of the petitioner through which the petitioner and his father used to approach the road.
It is stated that his father died about four years earlier and there was restriction on passing through said 'Sahan' by the petitioner and, consequently, suit for injunction was filed.
The trial court by means of judgment dated 20.4.2002 dismissed the said suit. While dismissing the said suit it observed that the petitioner has not been able to establish his ownership on the said land apart from the other facts dealt by the trial court.
Aggrieved by the order dated 20.4.2002 passed by the learned trial court, the petitioner preferred an appeal before the District Judge, Hardoi.
It is during the pendency of the said appeal that the petitioner moved an application under Order 41 Rule 27 CPC seeking to place on record certified copy of the sale deed indicating that the disputed property was purchased by the father of the petitioner in the year 1932 from one Ram Charan.
The application was opposed by the respondents.
It is submitted that the petitioner cannot be permitted to adduce fresh evidence at such a belated stage. It was further stated that no reasons have been given by the petitioner for not adducing said evidence before the trial court and it was also submitted that before the trial court the case set up by the petitioner was based on totally different facts wherein the father of the petitioner is said to have purchased the said land and made construction on the said house in year 1922.
In the plaint there was no averment that the said house was purchased from Ram Charan in year 1932 and, accordingly, the petitioner cannot be allowed to set up a new case at the appellate stage and in absence of any pleadings nor any averment with regard to as to when he discovered the fact and the manner in which he discovered the fact, the said application deserves to be rejected.
The learned Additional District Judge found force in the contention of the respondents, especially fact that there was no mention as to how the petitioner came to know about the existence of the sale deed of year 1932 and also of the fact that, in fact, the petitioner has set up the case contrary to the said sale deed and, accordingly, rejected the contention of the petitioner.
The petitioner being aggrieved by the order dated 14.10.2004 has assailed the said order in the present writ petition. The same facts and grounds urged before the learned District Judge have been reiterated before this Court.
Considering the submissions of the learned counsel for the petitioner it is noticed that as per provisions contained in Order 41 Rule 27 provides that the parties to the appeal shall not be entitled to produce additional evidence and only small window of indulgence has been carved out as per Clause (aa) and Clause (b). As per clause (a) it is provided that where the Court from whose decree appeal is preferred has refused to admit evidence which ought to have been admitted or as per clause (aa) the parties seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within the knowledge, or could not after 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.
Learned counsel for the petitioner fairly submits that the case of the petitioner would fall under sub Clause (aa) of Order 41 Rule 27 inasmuch as the said evidence was never sought to be placed on record before the trial court and even clause (b) cannot be invoked as there is no averment that the appellate court has desired the petitioner to file the said document.
In order to succeed the petitioner had to demonstrate that even after due diligence the said document was not available and, consequently, could not be filed by him before the trial court.
In this regard a perusal of the application preferred by the petitioner and even the findings recorded by the learned Additional District Judge would indicate that there is no whisper or any reason stated for not producing the said document before the trial court. It only stated that said facts were never in the knowledge of the petitioner. Apart from the same there is no mention as to how the petitioner came to gain the knowledge about the said sale deed of year 1932.
The fact which is sought to be produced as evidence is a document relating to a deed entered into by the father of the petitioner himself. It is not reasonable to believe that this fact in the ordinary course of nature would not have been in the knowledge of the petitioner but even if for a moment it is accepted that he was not aware of the said sale deed, there is no mention of the fact as to how he derived the knowledge of the said sale deed so as to give the benefit of the reasonable doubt that he was not aware of the said document during the pendency of the proceedings before the trial court.
The learned additional District Judge has also considered the objection by the respondents that the document is contrary to the averments made in the pleadings itself.
As per the plaint, the father of the petitioner had purchased the said property some time in the year 1922 while if the facts of the said sale deed of year1932 are to be believed then the house was, in fact, purchased in year 1932 and, consequently, this Court is also of the view that there are no pleadings in support of the said documents and otherwise the pleadings are, in fact, at variance with the document sought to be produced by the petitioner at the appellate stage.
In light of the above, this Court does not find any infirmity in the findings recorded by the learned Additional District Judge while rejecting the application under Order 41 Rule 27 CPC.
Accordingly, there is no merit in the petition necessitating interference of this Court under Article 226 of the Constitution of India, accordingly, petition is dismissed.
Order Date :- 24.8.2023
mks
