[Cites 6, Cited by 0]
Orissa High Court
Makeswar Jha vs State Of Odisha on 16 December, 2025
Author: B.P. Routray
Bench: B.P. Routray
Signature Not Verified
Digitally Signed
Signed by: MANAS KUMAR PANDA
Reason: Authentication
Location: OHC, Cuttack
Date: 19-Dec-2025 13:54:11
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.950 of 2025
(In the matter of an application under Article 227 of the Constitution of
India)
Makeswar Jha .... Petitioner
-versus-
State of Odisha, represented ... Opposite Parties
through its Commissioner-cum-
Secretary, Urban Development
Department and Others
Advocate(s) appeared in this case:-
For Petitioner : Mr. Jagabandhu Sahu, Advocate
For Opp. Parties : Mr. T.K. Dash, AGA
CORAM: JUSTICE B.P. ROUTRAY
JUDGMENT
th
16 December, 2025
B.P. Routray, J.
1. Heard Mr. J. Sahu, learned counsel for the Petitioner and Mr.
T.K. Dash, learned AGA for State - opposite parties.
2. Present CMP is directed against order dated 2nd May, 2025 of
learned 1st Appellate Court, i.e. District Judge, Balangir passed in
RFA No.87 of 2022, wherein prayer of the petitioner under Order 41
Rule 27 C.P.C. has been rejected.
3. Present petitioner is the plaintiff who filed CS No.73 of 2013
before the learned Additional Senior Civil Judge, Balangir and the
same was dismissed on contest. Against the same the petitioner
preferred RFA No.87 of 2022 before the District Judge and during
pendency of the appeal he filed a petition on 5th March, 2025 to
adduce additional evidence presenting certain documents in his
favour. Such prayer of the appellant to adduce additional evidence in
the appeal was rejected vide impugned order dated 2 nd May, 2025 on
the ground that the appellant has not explained any reason with
regard to justification for failure to produce such documents in
course of trial.
4. The scope of the provisions under Order 41 Rule 27 of C.P.C. is
limited and it is settled that it has to be exercised in exceptional
circumstances upon satisfaction of the party regarding exercise of
due diligence. In Erach Boman Khavar v. Tukaram Sridhar Bhat
and another, (2014) 1 OLR SC 544 it is observed that, "party can
seek liberty to produce additional evidence at the appellate stage,
but the same can be permitted only if the evidence sought to be
produced could not be produced at the stage of trial inspite of
exercise of due diligence and that the evidence could not be
produced as it was not within his knowledge".
5. In Sanjay Kumar Singh v. The State of Jharkhand, (2022) 7
SCC 247 it has been observed as follows:-
"4. 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."
6. Further in Union of India v. K.V. Lakshman and Others, (2016)
13 SCC 124 it is held as follows:-
"37. Order 41 Rule 27 of the Code is a provision which enables
the party to file additional evidence at the first and second
appellate stage. If the party to appeal is able to satisfy the
appellate Court that there is justifiable reason for not filing such
evidence at the trial stage and that the additional evidence is
relevant and material for deciding the rights of the parties which
are the subject matter of the lis, the Court should allow the party
to file such additional evidence. After all, the Court has to do
substantial justice to the parties. Merely because the Court
allowed one party to file additional evidence in appeal would
not by itself mean that the Court has also decided the entire case
in his favour and accepted such evidence. Indeed once the
additional evidence is allowed to be taken on record, the
appellate Court is under obligation to give opportunity to the
other side to file additional evidence by way of rebuttal."
7. Now coming to the case at hand, it is seen from the petition of
the appellant filed under Order 41 Rule 27 (Annexure-4) that no
such ground has been explained by him to discharge his action for
non-producing those documents in course of trial. The appellant did
not bother to whisper a word with regard to the vital requirement
under Order 41 Rule 27 to justify that he has exercised his utmost
care and due diligence in order to bring those documents in course of
trial. Undoubtedly, the documents sought to be adduced in additional
evidence were there prior to filing of the suit and within the
knowledge of the plaintiff-appellant. Therefore seeking to introduce
those documents by way of additional evidence in the 1st appeal
without explaining the reasons thereof failing to produce the same in
course of trial, may not be permitted at this stage. The learned 1 st
Appellate Court has elaborately dealt with these aspects in the
impugned order to reject such prayer of the appellant. In absence of
any explanation given by the appellant in his petition under Order 41
Rule 27 such prayer of the appellant has been rightly refused by the
1st Appellate Court.
8. Resultantly this court does not find any infirmity in the
impugned order to interfere. The CMP is dismissed.
( B.P. Routray)
Judge
M.K. Panda/P.A
