Dayanidhi Sahoo vs Tuni Sahoo And Another .... Opp. Parties
2023 Latest Caselaw 15116 Ori

Orissa High Court

Dayanidhi Sahoo vs Tuni Sahoo And Another .... Opp. Parties on 28 November, 2023

Author: K.R. Mohapatra

Bench: K.R. Mohapatra

Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 29-Nov-2023 10:32:29




                                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                   CMP NO.1385 OF 2023
                                     Dayanidhi Sahoo                   ....                  Petitioner
                                                                  Mr. Aswini Kumar Mishra-3, Advocate
                                                                 -versus-
                                     Tuni Sahoo and another                     ....       Opp. Parties

                                                CORAM:
                                                JUSTICE K.R. MOHAPATRA
                                                        ORDER

               Order No.                               28.11.2023

                01.             1.        This matter is taken up through hybrid mode.

2. An undated order (Annexure-1) passed by learned Additional District and Sessions Judge, Odagaon in RFA No.37/15 of 2022/2023 is under challenge in this CMP, whereby an application filed by the Petitioner under order XLI Rule 27 CPC, has been rejected.

3. It is submitted by Mr. Mishra, learned counsel for the Petitioner that the suit was filed by Defendant-Opposite Party No.1 for partition. The judgment in the suit was pronounced on 14th August, 2012 allotting 1/3rd share of the Petitioner-Appellant. Assailing the same, the aforesaid First Appeal under Section 96 CPC has been filed, which is pending in the Court of learned Additional District and Sessions Judge, Odogaon.

4. It is submitted by learned counsel for the Petitioner that during pendency of the appeal, the Petitioner-Appellant, while cleaning the room of his house could find out an unregistered Will on 10th November, 2000 executed by his father late Chakradhar Sahoo bequeathing the suit properties in his name. Since the said vital document is necessary for proper adjudication of the lis between the parties, he filed the aforesaid application under Order

// 2 // Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Nov-2023 10:32:29

XLI Rule 27 CPC, which has been rejected on the ground that the parties should not be allowed to adduce additional evidence at a belated stage and they should be allowed to patch of the lacuna by adducing additional evidence. Hence, this CMP has been filed.

5. It is submitted by learned counsel for the Petitioner that the document could not have been placed on record as it was traced out during pendency of the appeal only. As the entire property has been bequeathed in his favour by virtue of the said will, the suit for partition is not maintainable. This aspect was not taken into consideration by learned appellate Court, while rejecting the petition under Order XLI Rule 27 CPC. He relied upon the case of Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi and others, reported in (1987) 1 SCC 227, in which it is held that three conditions are to be satisfied for considering the application under Order XLI Rule 27 CPC, firstly, despite of the best efforts, the parties were unable to introduce the additional evidence in the initial proceeding. Secondly, party affected by admission of additional evidence should be given an opportunity and thirdly, the additional evidence must be pertinent to issue at hand. It is submitted that all the three requirements are satisfied in this instance case. But, learned appellate Court, although inadvertently did not put the date in the impugned order, but passed the impugned order on 4th October, 2023 rejecting such application. As such, the impugned order is not sustainable and is liable to be set aside.

6. Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that such a plea was not taken in the written statement filed by the Petitioner, who was Defendant No.1 in the suit. On perusal of the petition

// 3 // Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Nov-2023 10:32:29

under Order XLI Rule 27 CPC, it does not appear that the Defendant No.1 had, in fact, made an attempt to find out such document during pendency of the suit. Since no pleading with regard to the unregistered Will sought to be introduced by additional evidence is available in the written statement filed by Defendant No.1-Petitioner, additional evidence introducing such a new plea could not have been accepted and has rightly been rejected by learned appellate Court.

7. In view of the above, the ratio decided in Shivajirao Nilangekar Patil (supra), is of no assistance to the case of the Petitioner.

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

Urgent certified copy of this order be granted on proper application.

(K.R. Mohapatra) Judge

Rojalin