Feku Mahato & Ors vs Miliya Devi &Ors
2022 Latest Caselaw 2315 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 SA No. 492 of 2003

         Feku Mahato & Ors.                      .........        Appellants

                                   Versus

         Miliya Devi &Ors.             .........             Respondents

Coram: HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

For the Appellants : Mr. Sunil Kr. Mahto, Adv. For the Respondents : Mr. D. C. Mishra, Adv.

17 / 28.06.2022 I.A. no. 3705 of 2009 Learned counsel for the appellants submits that this Interlocutory Application has been filed with a prayer to bring the original death certificate of Degan Mahto, issued on 19.12.1954 mentioning therein that Degan Mahto died on 18.12.1954 as well as Khatian of Khata no. 11 by way of additional evidence.

Learned counsel for the respondents, Mr. D.C. Misra vehemently opposes the prayer for adducing the evidence and submits that the appellants were the defendants in Title (Partition) Suit No. 11 of 1998 but did not file any copy of the death certificate nor brought the same in the record during pendency of the suit though admittedly, the death certificate is not a subsequent document as the said death certificate is said to be issued on 19.12.1954. It is next submitted by Mr. Mishra that Order XLI Rule 27 of CPC envisages the following three situations which are condition precedents for admitting any document in the record by way of additional evidence:

(i) The court from whose decree, the appeal is preferred, has refused to admit the evidence, which ought to have been admitted, And submits that it is not the case of the appellant that the appellant produced the said documents sought to be admitted in the record by way of additional evidence and the same were not admitted as evidence.

(ii) The second condition being despite due diligence of the party concerned, such evidence was not within his knowledge or could not be produced even after exercise of due diligence by the party seeking to adduce additional evidence, at the time when the decree appealed against was passed.

It next submitted that it is also not the case of the appellants as there is no averment in the petition, that despite the exercise of due diligence, such evidence was not within the knowledge of the appellant or the appellant could not after exercise of due diligence, produce the said documents during the trial.

(iii) It is also submitted by Mr. Mishra that 3rd condition for admitting additional evidence is that if the appellate court required any document to be produced to enable it to pronounce judgment or for any other substantial cause. It is next submitted by Mr. Mishra that learned lower appellate court has never required any such document, so third condition is also not at all attracted as there is no averment in this Interlocutory Application as to in what manner, the document sought to be admitted for evidence by way of additional evidence, is required for enabling this court to pronounce a judgment, hence, it is submitted by Mr. Mishra, that this petition being without any merit be dismissed.

Having heard the submissions made at the Bar and after carefully going through the record, it is found that in this interlocutory application absolutely no ground has been mentioned; as to why the document sought to be brought on record by way of additional evidence be allowed. Under such circumstances, this Court is of the considered view that there is no merit in this Interlocutory Application, accordingly, the same is dismissed.

(ANIL KUMAR CHOUDHARY, J.) SA No. 492 of2003 Learned counsel for the appellants prays for time to advance his arguments on the point of admission.

Prayer for time is allowed as the last chance. List this appeal under the heading for admission after twelve weeks.

(ANIL KUMAR CHOUDHARY, J.) AFR-Smita/-