Jharkhand High Court
Ishwar Sharan Gupta @ Ishwar Sharan ... vs Fr. James Lakra & Ors on 6 February, 2024
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.628 of 2016
Ishwar Sharan Gupta @ Ishwar Sharan Agrawal & Anr.
..... ... Appellants
Versus
Fr. James Lakra & Ors. .... .... Respondents
With
C.O. No.32 of 2021
St. Xavier's School, Doranda, Ranchi through its Principal - Fr. Sanjay
Kerketta ..... ... Appellants
Versus
Ishwar Sharan Gupta @ Ishwar Sharan Agrawal & Anr.
.... .... Respondents
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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellants : Mr. A.K. Lall, Advocate [In MA 628/2016]
Mr. Bibhash Sinha, Advocate [In CO 1557/22]
For the Res. No.3 : Mr. Amresh Kumar, [In MA 628/16]
--------
th
20/6 February, 2024
I.A. No.1557 of 2022 in C.O. No.32 of 2021
1. The present interlocutory application has been filed on behalf of the
cross-objector under Order 41 Rule 27 of the C.P.C. with the prayer to
produce the copy of the driving license, tax token, fitness certificate, copy
of the release petition for the vehicle, letter issued from the office of RTO,
Ranchi and copy of the certificate issued by Lower Bazar Police Station,
Ranchi which are made Annexure-IA/1 to IA/6 respectively.
2. The ground shown is that the claim petition was decided by the
learned Tribunal against the cross-objector/owner ex parte. The fact is
that Late Father James Lakra, the then principal of St. Xavier's School,
Doranda, Ranchi appeared and filed his Vakalatnama but later on he
shifted to Assam where he passed away on 21st April, 2012. On account
of these unforeseen situation and communication gap which has taken
place, the school was prevented to contest the claim petition before the
learned Tribunal. The new Principal of the school was never informed by
the conducting lawyer about the pendency of the said claim petition. All
the vehicular papers including the driving license of the driver Lalu Singh
are in order but the school on account of unavoidable circumstances could
not continue to participate the proceeding before the learned Tribunal. In
view of the above prayed to take these documents on record. The ground
shown is also supported with the affidavit.
3. On behalf of the respondent no.3--the National Insurance Company,
a rejoinder affidavit against this interlocutory application was filed on the
ground that the statement made in paragraphs 4 and 5 are partly correct.
In compensation case, Opposite Party No.1 was father James Lakra in the
capacity of Principal St. Xavier's School, Doranda, Ranchi and O.P. No.2
was the school. It is not mentioned in the interlocutory application that
when the father James Lakra was transferred to Assam and was debarred
from filing the written statement well before his death. Now 17 years
have lapsed and the cross-objector is deliberately avoiding this case and
also raised the question in regard to evidentiary value of the documents
filed along with the I.A.
4. I have heard the learned counsel for the parties and perused the
record.
5. This fact is admitted that the claim petition was decided by the
learned Tribunal ex parte against the owner, who is cross-objector herein
and against the impugned award M.A. No.628 of 2016 was filed on behalf
of the claimants for enhancement of the compensation amount awarded
by the learned Tribunal in the year 2016.
6. On behalf of the owner C.O. No.32 of 2021 was filed within period of
limitation of one month from the date of service of notice of M.A. No.628
of 2016. In the I.A. itself, the ground is shown that the then Principal of
the school, namely, father James Lakra who was O.P. No.1 in the claim
petition had shifted to Assam and also passed away thereon on 21st April,
2012 and on account of communication gap, the school was prevented to
contest the claim petition. It is also further submitted that new Principal
of the school was never informed by the conducting lawyer on behalf of
the school in regard to pendency of the said claim petition. As such, the
ground shown is found sufficient.
7. So far as the contention of the respondent no.3--Insurance Company
that no exact date is given when the then Principal of the School had
shifted to Assam and the said application has been filed belated after
lapse of 17 years from the date of occurrence is concerned, the same is
not found tenable, reason being that the award passed in the claim
petition was ex parte against the owner and on account of reasons as
shown in the I.A., the cross-objector could not come to know in regard to
the pendency of the said claim petition which was decided ex parte. The
said award was challenged on behalf of the claimant in M.A. No.628 of
2016. Notice of the same were issued to the owner of the vehicle and
after service of notice, the owner of the vehicle appeared in M.A. No.628
of 2016 and also filed cross-objection being C.O. No.32 of 2021 within 30
days from the date of service of notice. As such, this long period cannot
be accepted as a ground to refuse the cross-objector to produce
documents filed with the I.A. which are necessary documents to decide
the dispute between the parties in regard to the liability to pay the
compensation effectively and completely. These documents would also
enable the Court to come on proper conclusion in disposal of the appeal.
As such, the grounds shown comes within the periphery as enumerated
under Order 41 Rule 27 of the C.P.C. which is reproduced hereinbelow :
"7. 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 exam med.
(2) Whenever additional evidence is allowed to the produced, by an
Appellate Court, the court shall record the reason for its admission."
8. Accordingly, this interlocutory application is hereby allowed with cost
of Rs.1000/- and the documents filed with I.A. are taken on record.
9. The cost shall be paid in the office of the Registrar General of this
Court and the same be released in favour of the learned counsel for the
respondent no.3.
M.A. No.628 of 2016 with C.O. No.32 of 2021
10. List these cases on 5th March, 2024 under the appropriate heading.
(Subhash Chand, J.)
Rohit
