Jharkhand High Court
Muni Devi vs Bisheshwar Sonar @ Baleshwar Rana on 5 May, 2022
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.6254 of 2017
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Muni Devi .......... Petitioner.
-Versus-
1. Bisheshwar Sonar @ Baleshwar Rana
2. Vijay Sonar
3. Sarita Devi
4. Misri Lal Swarnkar
.......... Respondents.
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Yogesh Modi, Advocate
For the Respondents: Mr. A. K. Sahani, Advocate
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Order No.10 Date: 05.05.2022
1. The present writ petition has been preferred for quashing the order
dated 24.07.2017 passed by the District Judge-VII, Giridih in T.A No.5
of 2015, whereby the petition filed by the plaintiff/appellant/petitioner
under Order XLI rule 27 of the Code of Civil Procedure dated
21.01.2016 for adducing additional evidence has been rejected.
2. The factual background of the case, as stated in the writ petition, is
that one Shanti Devi, wife of Misri Lal Swarnkar (respondent no.4
herein) filed Eviction Suit No.15 of 1996 against the father-in-law of
the petitioner, namely, Bhuneshwar Prasad for evicting him from the
suit land without impleading the petitioner and his other family
members as parties in the said eviction suit. The said eviction suit was
decided in favour of Shanti Devi vide judgment dated 31.08.2001 and
the decree dated 13.09.2001. Thereafter, Shanti Devi filed an
execution case being Execution Case No.02 of 2002. Subsequently, the
petitioner came to know about the aforesaid execution case and the
eviction suit. Thereafter, she filed Title Suit No.05 of 2003 challenging
the title of Shanti Devi over the suit land and arrayed Shanti Devi,
Bhuneshwar Prasad and Misri Lal Swarnkar as parties-defendants in
the same. She specifically stated in the said suit that she had
purchased the suit property measuring an area one acre out of 29.64
acres appertaining to Khata No. 64, plot no. 810, Thana No. 50,
situated at village Gadi Kala, Tola Suiyatand, P.S. Bengabad, District
Giridih from one Babulal Mishra, son of Late Mohar Mishra (legal heir
of the recorded tenant, namely, Mani Lal Mishra) by virtue of registered
sale deed no.11196 dated 09.11.1993. The land in question stands
recorded as Bakast land of Mani Lal Mishra in the survey Khatian. The
defendants- Shanti Devi and Misri Lal Swarnkar appeared in the suit
and filed their written statement, stating inter alia that the vendor of
the petitioner, namely, Babulal Mishra had no right, title, interest or
possession with respect to the said land and as such he was not
entitled to execute any deed of transfer of the same in favour of any
person including sale deed no.11196 dated 09.11.1993 allegedly
executed in favour of the petitioner. The said suit was finally dismissed
by the learned Munsif, Giridih vide judgment dated 27.02.2015 and
decree dated 12.03.2015. Aggrieved by the said judgment and decree,
the petitioner preferred an appeal being Title Appeal No.5 of 2015 in
the Court of Principal District Judge, Giridih, which is now pending in
the court of the District Judge, VII, Giridih. During pendency of the
said appeal, the petitioner filed a petition on 21.1.2016 under Order
XLI rule 27 of CPC for adducing additional evidence, however, the said
petition was dismissed by the court below vide impugned order dated
24.07.2017. Hence, the present writ petition.
3. Learned counsel for the petitioner submits that the court below has
failed to consider that the petitioner could not produce the concerned
documents in spite of due diligence as those were not within her
knowledge for the reason that she was not a party to that proceeding
in which those documents were concerned. It is only P.W.2 i.e. vendor
of the petitioner, who disclosed about those documents and,
thereafter, the petitioner came to know about the existence of the
same. It is also submitted that the concerned documents were not in
possession of the petitioner, hence she could not produce the same
during trial. The documents sought to be produced by the petitioner
before the court below is necessary for the just decision of the case. A
title suit being T.S. No.26 of 2007 was filed by Babulal Mishra against
Malti Devi and others, wherein the vendors of the respondents,
namely, Raj Kumar Mishra and Kamdeo Mishra filed written statement,
accepting the fact that the suit property of T.S No. 5 of 2003 was
exclusively allotted in the share of Mohar Prasad Mishra (father of
Babulal Mishra). The said written statement was handed over to the
petitioner by Babulal Mishra during pendency of the Title Appeal No.5
of 2015. It is further submitted that Babulal Mishra had certain
documents which he had acquired under Right to Information Act,
2005 from the Circle Officer, Bengabad and handed over the same to
the petitioner.
4. Per contra, learned counsel for the respondents submits that the
petitioner had failed to show before the court below that the
documents sought to be produced by her could not be produced before
the original court even after the exercise of due diligence, which is a
mandatory requirement for adducing additional evidence at appellate
stage. It is further submitted that the petitioner is trying to bring on
record completely a new fact by filing petition under Order XLI Rule 27
CPC, which has rightly been rejected by the court below. It is also
submitted that the documents cannot be allowed to be adduced at the
appellate stage to patch up the weaknesses in the evidence so as to
get relief from the appellate court.
5. Heard the learned counsel for the parties and perused the materials
available on record. To appreciate the rival contentions of learned
counsel for the parties, it would be appropriate to go through the
provisions of Order XLI Rule 27 of the CPC, which read as under:
"Order XLI Rule 27-- Production of additional evidence in Appellate
Court.-- (1) The parties to an appeal shall not be entitled to produce
additional evidence, whether oral or documentary, in the Appellate
Court. But if--
(a) The court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been
admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the 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, the
Appellate Court may allow such evidence or document to be
produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an
appellate court, the court shall record the reason for its admission."
6. As per the aforesaid provision, additional evidence cannot not
permitted to be adduced by either of the parties at the appellate court.
However, three exceptional situations have been provided under which
the appellate court may allow such evidence or document to be
produced or any witness to be examined. Sub-rule 1(a) of Rule 27
permits production of evidence at appellate stage, if the Court from
whose decree the appeal is preferred, has refused to admit evidence
which ought to have been admitted. Sub-rule 1(aa) of Rule 27 of the
CPC provides that if the party seeking to produce additional evidence
establishes that such evidence was not within his/her knowledge or
the same could not be produced by him/her at the time of passing of
decree even after exercising due diligence, the Appellate Court may
allow for production of additional evidence even at the appellate stage.
Sub-rule 1(b) of Rule 27 of the CPC gives discretion to the appellate
Court to require any document to be produced or any witness to be
examined so as to enable it to pronounce the judgment or for any
other substantial cause.
7. This Court has also perused the judgment of the Hon'ble Apex Court
rendered in the case of A. Andisamy Chettiar Vs. A. Subburaj
Chettiar, reported in (2015) 17 SCC 713, wherein, while referring
various previous judgments on the issue of production of additional
evidence at appellate stage, it has been held as under:
"12. From the opening words of sub-rule (1) of Rule 27, quoted above,
it is clear that the parties are not `entitled to produce additional
evidence whether oral or documentary in the appellate court, but for
the three situations mentioned above. The parties are not allowed to
fill the lacunae at the appellate stage. It is against the spirit of the
Code to allow a party to adduce additional evidence without fulfilment
of either of the three conditions mentioned in Rule 27. In the case at
hand, no application was moved before the trial court seeking
scientific examination of the document (Ext. A-4), nor can it be said
that the plaintiff with due diligence could not have moved such an
application to get proved the documents relied upon by him. Now it is
to be seen whether the third condition i.e. one contained in clause (b)
of sub-rule (1) of Rule 27 is fulfilled or not.
13. In [K.R. Mohan Reddy v. Net Work Inc., (2007) 14 SCC 257] this
Court has held as under: (SCC p. 261, para 19)
"19. The appellate court should not pass an order so as to
patch up the weakness of the evidence of the unsuccessful
party before the trial court, but it will be different if the court
itself requires the evidence to do justice between the parties.
The ability to pronounce judgment is to be understood as the
ability to pronounce judgment satisfactorily to the mind of
the court. But mere difficulty is not sufficient to issue such
direction."
14. In [North Eastern Railway Admn. v. Bhagwan Das, (2008) 8 SCC
511] this Court observed thus: (SCC pp. 515-16, para 13)
"13. Though the general rule is that ordinarily the appellate
court should not travel outside the record of the lower court
and additional evidence, whether oral or documentary is not
admitted but Section 107 CPC, which carves out an exception
to the general rule, enables an appellate court to take
additional evidence or to require such evidence to be taken
subject to such conditions and limitations as may be
prescribed. These conditions are prescribed under Order 41
Rule 27 CPC. Nevertheless, the additional evidence can be
admitted only when the circumstances as stipulated in the
said Rule are found to exist."
15. In [N. Kamalam v. Ayyasamy, (2001) 7 SCC 503] this Court,
interpreting Rule 27 of Order 41 of the Code, has observed in para 19
as under: (SCC p. 514)
"19. ... the provisions of Order 41 Rule 27 have not been
engrafted in the Code so as to patch up the weak points in the
case and to fill up the omission in the court of appeal-- it does
not authorise any lacunae or gaps in the evidence to be filled
up. The authority and jurisdiction as conferred on to the
appellate court to let in fresh evidence is restricted to the
purpose of pronouncement of judgment in a particular way."
16. In [Union of India v. Ibrahim Uddin, (2012) 8 SCC 148] this Court
has held as under: (SCC p. 171, para 49)
"49. An application under Order 41 Rule 27 CPC is to be
considered at the time of hearing of appeal on merits so as to
find out whether the documents and/or the evidence sought
to be adduced have any relevance/bearing on the issues
involved. The admissibility of additional evidence does not
depend upon the relevancy to the issue on hand, or on the
fact, whether the applicant had an opportunity for adducing
such evidence at an earlier stage or not, but it depends upon
whether or not the appellate court requires the evidence
sought to be adduced to enable it to pronounce judgment or
for any other substantial cause. The true test, therefore is,
whether the appellate court is able to pronounce judgment
on the materials before it without taking into consideration
the additional evidence sought to be adduced."
(emphasis in original)
8. The Hon'ble Supreme Court in a recent judgment rendered in the case
of Sanjay Kumar Singh Vs. State of Jharkhand, reported in
2022 SC OnLine SC 292, while relying upon the judgment rendered
in the case of A. Andisamy Chettiar (Supra.), has summarized the
law of admissibility of additional evidence at appellate stage in
following manner:-
"7. It is true that the general principle is that the appellate court should
not travel outside the record of the lower court and cannot take any
evidence in appeal. However, as an exception, Order 41 Rule 27 CPC
enables the appellate court to take additional evidence in exceptional
circumstances. It may also be true that the appellate court may permit
additional evidence if the conditions laid down in this Rule are found
to exist and the parties are not entitled, as of right, to the admission
of such evidence. However, at the same time, where the additional
evidence sought to be adduced removes the cloud of doubt over the
case and the evidence has a direct and important bearing on the main
issue in the suit and interest of justice clearly renders it imperative
that it may be allowed to be permitted on record, such application may
be allowed. Even, one of the circumstances in which the production of
additional evidence under Order 41 Rule 27 CPC by the appellate court
is to be considered is, whether or not the appellate court requires the
additional evidence so as to enable it to pronouncement judgment or
for any other substantial cause of like nature. As observed and held by
this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar,
reported in (2015) 17 SCC 713, the admissibility of additional evidence
does not depend upon the relevancy to the issue on hand, or on the
fact, whether the applicant had an opportunity for adducing such
evidence at an earlier stage or not, but it depends upon whether or not
the appellate court requires the evidence sought to be adduced to
enable it to pronounce judgment or for any other substantial cause. It
is further observed that the true test, therefore is, whether the
appellate court is able to pronounce judgment on the materials before
it without taking into consideration the additional evidence sought to
be adduced."
9. It may thus be construed that the provisions of Order XLI Rule 27 of
the CPC have not been engrafted in the Code so as to patch up the
weak points in the case and to fill up the omission in the Court of
appeal. The appellate court may, however, permit additional evidence
if the conditions laid down in this Rule are found to exist, but the
parties are not entitled to claim admission of such evidence at
appellate stage as of right. The admissibility of additional evidence
does not depend upon the relevance to the issue on hand or on the
fact as to whether the applicant had an opportunity of adducing such
evidence at an earlier stage or not, rather it depends upon the situation
as to whether or not the appellate Court requires the evidence sought
to be adduced to enable it to pronounce judgment or for any other
substantial cause. If the document sought to be adduced at appellate
stage removes the cloud of doubt from the case and the evidence has
a direct and important bearing on the main issue in the suit as well as
the interest of justice clearly renders it imperative to be permitted on
record, an application for adducing additional evidence may be
allowed.
10. In the case in hand, the petitioner claimed in the petition filed under
Order XLI Rule 27 CPC that the trial court drew adverse inference
against her as no paper of partition among the P.W.2 (vendor of the
petitioner) and his co-sharers was proved in Title Suit no.05 of 2003.
The documents showing partition among P.W.2 and his co-sharers
were never in the custody of the petitioner, hence she could not file
the said documents, while leading her evidence.
11. The petitioner by way of the said petition sought to adduce the
following documents:-
(i) Certified copy of application dated 03.02.1989 of
Ayodhya Mishra & Others filed in Anchal-cum-Block
Office, Bengabad
(ii) Certified copy of written statement of defendant 2 and 3
filed in T.S No. 26/07
(iii) Copy of letter no.408 dated 22.11.2008 written by Anchal
Adhikari, Bengabad to Public Information Officer with
annexure.
12. The petitioner though averred in the petition filed under Order XLI Rule
27 CPC that the said documents were not within her knowledge at the
time of leading evidence, however, she failed to satisfactorily establish
that notwithstanding the exercise of due diligence, such evidence was
not within her knowledge so as to be produced by her at the time of
passing the decree against which appeal has been preferred.
Document not being in the knowledge or possession of the petitioner
cannot be a ground to allow her to lead evidence at appellate stage
unless she satisfactorily proves the exercise of due diligence while
leading the evidence at the trial stage. It appears from the averments
made in the petition filed under Order XLI Rule 27 CPC that the
petitioner wants to adduce additional evidence at appellate stage just
to patch up the weak points of the case and to fill up her omission in
the Court of appeal which cannot be allowed in view of the ratio laid
down in the aforesaid judgments. Moreover, the documents sought to
be adduced are mostly the certified copies which could have been
procured by the petitioner while leading evidence before the
trial/original court and thus it reflects that the petitioner had failed to
show due diligence in producing the said documents. Moreover, the
court below has observed in the impugned order that the appellant/
petitioner wanted to introduce certain new facts which were beyond
her pleadings. The petitioner has also failed to show before this court
that in absence of the said documents the appellate court will be
unable to pronounce judgment.
13. In view of the aforesaid legal and factual position, I am of the view
that the court below has rightly rejected the petition filed by the
petitioner under Order XLI Rule 27 CPC and hence the impugned order
needs no interference of this Court under Article 227 of the
Constitution of India.
14. The writ petition is, accordingly, dismissed.
(Rajesh Shankar, J.)
Sanjay/AFR
