Sk. Mohiuddin vs Abdul Zalil Khan
2023 Latest Caselaw 9494 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                              CMP NO.783 OF 2023
                 Sk. Mohiuddin                             ....        Petitioner
                                               Mr. Subha Kumar Mishra, Advocate
                                           -versus-
                 Abdul Zalil Khan                          ....     Opp. Parties

                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                       ORDER

Order No.                             18.08.2023
   02.      1.      This matter is taken up through hybrid mode.

2. Order dated 30th June, 2023 (Annexure-12) passed by learned Additional District Judge, Jajpur in RFA No.19 of 2013 is under challenge in this CMP, whereby an application filed by the Petitioner-Appellant under Order XLI Rule 27 CPC, has been rejected.

3. Mr. Mishra, learned counsel for the Petitioner submits that the Plaintiff had filed Civil Suit No.7 of 2007 for declaration of right, title and interest over the suit land and for permanent injunction. It was further prayed to direct the Defendant to execute deed of re-conveyance in favour of the Plaintiff-Opposite Party in respect of schedule 'A' land. The suit being decreed vide judgment dated 25th February, 2013, the Defendant-Petitioner filed RFA No.19 of 2013 assailing the said judgment and decree. The Original documents in respect of the suit schedule 'A' land could not be produced before learned trial Court as it was kept as collateral security with the bank for a financial assistance. The said documents were released in favour

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of the Petitioner only on 18th August, 2016 by cancelling the agreement of hypothecation.

4. As such, the said documents could not have been filed before learned trial Court. Learned trial Court while answering Issue Nos. 3 and 4 drew an adverse inference against the Petitioner as the original documents were not filed. Thus, these documents are essential for just adjudication of the appeal. In that view of the matter, the Petitioner filed an application under Order XLI Rule 27 CPC to accept the documents in respect of the suit schedule property as additional evidence and adjudicate the appeal. Learned appellate Court without considering the matter in its proper perspective, rejected the petition holding that these documents are not necessary for just adjudication of the case and the certified copy of the Registered Sale Deed No.2682 dated 23rd December, 1996 was available on record.

5. It is submitted by Mr. Mishra, learned counsel for the Petitioner that since the documents were with the bank, the Petitioner in spite of due diligence, could not have produced the same before learned trial Court. In support of the case, Mr. Mishra, learned counsel relied upon the case of Sanjay Kumar Singh vrs. State of Jharkhand reported in AIR 2022 Supreme Court 1372, wherein it is held that when the documents have a direct bearing on pronouncing a judgment of or any other substantial cause, the same should be allowed to be accepted as additional evidence. In the instant case, learned trial Court has drawn adverse inference for non-production of the documents sought to be filed as additional evidence.Those documents are imperative for pronouncing the judgment. As such, the appellate

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Court should have allowed the application under Order XLI Rule 27 CPC.

6. Considering the submission made by Mr. Mishra, learned counsel for the Petitioner and on perusal of case record, it appears that the Defendant in his pleading (written statement) has not stated that these documents available with the bank. Further, in the petition filed under Order XLI Rule 27 CPC, it is not stated as to how these documents are relevant or necessary for just adjudication of the appeal. It appears that the documents were within the knowledge of the Defendant-Petitioner at the time of filing of the written statement and during pendency of the suit. The document showing cancellation of hypothecation agreement annexed to the writ petition at Annexure-10 does not disclose that those documents were with the bank and were returned to the Petitioner in the year 2016 after cancellation of hypothecation agreement. Further, it appears that the suit has been decided on the available materials on record.

7. It is submitted that due to non-filing of these documents, adverse inference was drawn against the Petitioner-Defendant. Thus, accepting the documents at this stage will not only be an abuse of process of Court, but it will also prejudice the Plaintiff- Opposite Party. The plea of the Petitioner does not fall under any of the categories stated under Order XLI Rule 27 CPC.

9. Accordingly, the CMP being devoid of any merit, stands dismissed.

Urgent certified copy of this order be granted on proper Signature Not Verified Digitally Signed application.

Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Aug-2023 12:32:15 Rojalin (K.R. Mohapatra) Judge