Jharkhand High Court
Mohammad Iliyas vs Mohammad Nazeer on 23 April, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
( 2025:JHHC:12154 )
IN THE HIGH COURT OF JHARKHAND, RANCHI
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C.M.P. No. 144 of 2022
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Mohammad Iliyas, aged about 48 years son of late S.K. Makbool, resident
of Village Bishundas Chak, P.O. Laxmipur, P.S. Basantrai, District Godda
...... .... ...Appellant/ Petitioner(s)
-- Versus --
Mohammad Nazeer, son of Sheikh Kayamuddin, resident of Village
Sonaguji, PO Mathura, PS Balbedda, District Godda
...... .... ...Respondent/Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner(s) : Mr. S.P. Jha, Senior Advocate
Mr. Aishwarya Prakash, Advocate
For the Opposite Party(s) : Mr. Tejo Mistry, Advocate
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15/23.04.2025 Heard Mr. S.P. Jha, the learned Senior counsel assisted by Mr. Aishwarya
Prakash, the learned vice counsel appearing on behalf of the petitioner as well
as Mr. Tejo Mistry, the learned counsel appearing on behalf of the respondent/
opposite party.
2. This petition has been filed under Article 227 of the Constitution of India
for setting aside the order dated 17.02.2022 passed by learned District Judge-
II, Godda in Civil Appeal No.05 of 2019 by which he has been pleased to
dismiss the petition filed by the petitioner/appellant under order XLI Rule 27 as
well as Section 107/151 of the Code of Civil Procedure.
3. Mr. Jha, the learned Senior counsel appearing on behalf of the petitioner
submits that Title (Partition) Suit No.52 of 2006 was instituted for partition and
was decided by the learned Civil Judge, Senior Division -I Godda by the
judgment dated 12.9.2018 and against the said judgment, Civil Appeal No.05 of
2019 was preferred by the petitioner herein and in that appeal, a petition under
Order XLI Rule 27 of the CPC was filed before the learned court for adducing
additional evidence with regard to family relation certificate and the same was
rejected by the learned court by the impugned order. He submits that it was not
accepted and filed before the learned first court and in view of that at the
appellate stage, the said provision has been invoked and the learned court has
wrongly rejected the same. He submits that the said petition may kindly be
allowed and the impugned order may kindly be set aside.
4. Learned counsel for the sole respondent/Opposite party opposed the
prayer and submits that the said certificate which has been sought to be
brought on record by way of additional evidence was issued on 27.08.2018
wherein the judgment has been delivered by the learned trial court on
12.9.2018 and the due diligence is not shown in filing of the said application
and in view of that the learned court has rightly passed the order and there is
no illegality in the impugned order.
5. From the record it transpires that the judgment in the partition suit was
delivered on 12.9.2018 wherein the said family certificate was already obtained
by the petitioner herein on 27.8.2018, however, it was not brought on record at
the learned trial court and at appellate stage Order XLI Rule 27 of the CPC has
been revoked. The learned court has held that in the civil cases, particularly,
partition suit are being decided on the face of genealogy and a new document
relating to family certificate was tried to be brought on record in the appeal and
in view of that, the learned court has rejected the same.
6. For deciding petition under Order 41 Rule 27 the learned appellate court
is not required to travel outside the record of the learned trial court and cannot
take any evidence in appeal. The reference may be made to the case of "Union
of India Vs. Ibrahim Uddin reported in (2012) 8 SCC 148 wherein
paragraphs Nos. 25, 26 and 37 it has been held as under:-
"25. 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 XLI Rule
27 CPC enables the Appellate Court to take additional evidence in
exceptional circumstances. The Appellate Court may permit
additional evidence only and only if the conditions laid down
in this rule are found to exist. The parties are not entitled, as of
right, to the admission of such evidence. Thus, provision does not
apply, when on the basis of evidence on record, the Appellate
Court can pronounce a satisfactory judgment. The matter is
entirely within the discretion of the court and is to be used
sparingly. Such a discretion is only a judicial discretion
circumscribed by the limitation specified in the rule itself. (Vide: K.
Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC
1526; The Municipal Corporation of Greater Bombay v. Lala
Pancham & Ors., AIR 1965 SC 1008; Soonda Ram & Anr. v.
Rameshwaralal & Anr., AIR 1975 SC 479; and Syed Abdul Khader
v. Rami Reddy & Ors., AIR 1979 SC 553).
26. The Appellate Court should not, ordinarily allow new evidence
to be adduced in order to enable a party to raise a new point in
appeal. Similarly, where a party on whom the onus of proving a
certain point lies fails to discharge the onus, he is not entitled to a
fresh opportunity to produce evidence, as the Court can, in such a
case, pronounce judgment against him and does not require any
additional evidence to enable it to pronounce judgment.
(Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v.
Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).
37. To sum up on the issue, it may be held that application for
taking additional evidence on record at a belated stage cannot be
filed as a matter of right. The court can consider such an
application with circumspection, provided it is covered under
either of the prerequisite condition incorporated in the statutory
provisions itself. The discretion is to be exercised by the court
judicially taking into consideration the relevance of the document
in respect of the issues involved in the case and the circumstances
under which such an evidence could not be led in the court below
and as to whether the applicant had prosecuted his case before
the court below diligently and as to whether such evidence is
required to pronounce the judgment by the appellate court. In
case the court comes to the conclusion that the application filed
comes within the four corners of the statutory provisions itself, the
evidence may be taken on record, however, the court must record
reasons as on what basis such an application has been allowed.
However, the application should not be moved at a belated stage."
7. For proper adjudication of the present petition Order 41 Rule 27
is reproduced hereinbelow :-
"Order 41 Rule 27 CPC:- 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."
8. From the above legal position as it stands, is that the parties to an appeal
are not entitled to produce additional evidence (oral or documentary) in the
appellate court except on the principles enumerated in clause (a), (aa) and (b) of
the Code where the appellate court requires a document to be produced or any
witness to be examined to enable it to pronounce the judgment, or for any other
substantial cause. The expression "to enable it to pronounce judgment" has
been interpreted so as to mean that when the appellate court finds itself unable
to pronounce judgment owing to a lacuna or defect in evidence as it stands, it
may admit additional evidence. But that does not mean that the clause should
be resorted to patch up the weakness of the evidence of the unsuccessful party
before the trial court, though, if the court itself requires the evidence to do
justice between the parties, it may accept it. The ability to pronounce a
judgment is to be understood as the ability to pronounce a judgment satisfactory
to the mind of the court delivering it. But a mere difficulty in coming to a
decision is not sufficient for admission of evidence under this rule. This provision
does not entitle the appellate court to let in fresh evidence at the appellate stage
where even without such evidence it can satisfactorily pronounce judgment in
the case. It does not entitle the appellate court to let in fresh evidence only for
the purposes of pronouncement of judgment in a particular way. The words "or
for any other substantial cause" must be read with the word "requires", which is
set out at the commencement of the provision, so that it is only where, for any
other substantial cause, the appellate court requires additional evidence, that
this clause would apply. Furthermore, if recourse is to be taken to the said
clause, that is clause (c), which is pari materia clause (b) of the Code, the
appellate court is required to consider the entire evidence on record to come to
an independent conclusion whether for arriving at a just decision, adduction of
additional evidence, as has been prayed for, is necessary. Therefore, ordinarily,
an application seeking adduction of additional evidence by taking recourse to the
aforesaid clause is to be considered at the time of hearing by taking a
conspectus of the entire evidence on record for drawing satisfaction whether the
evidence, the adduction of which is found to be necessary for pronouncing a
judgment or not.
9. Coming to the facts of the present case, the petitioner has not stated in
the application that how the family certificate was obtained and it was not
brought before the learned trial court and it is further well settled that at the
time of final hearing of the appeal if the first appellate court comes to the
conclusion that additional evidence is required to be considered can be
considered by the learned court at that time and in view of that, the learned
court has dismissed the petition saying in the interest of justice at this stage,
which clearly suggest that the learned court has kept in mind the law in this
regard for allowing a petition under Order XLI Rule 27 of the CPC.
10. In light of the above, the Court finds that there is no illegality in the
impugned order. As such, this petition being C.M.P. No.144 of 2022 is dismissed.
11. Pending petition, if any, also stands disposed of accordingly.
( Sanjay Kumar Dwivedi, J.)
SI/,
A.F.R.
