Patna High Court
Bipin Kumar Singh @ Bipin Singh vs Ashique Mian on 25 February, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1341 of 2019
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1. Bipin Kumar Singh @ Bipin Singh S/o- Late Bhola Singh, Resident of
Village-Bandaur, P.O.-Bandaur, P.S.-Nima Chandpura, District-Begusarai.
2. Janki Devi, W/o Late Bhola Singh Resident of Village- Bandaur, P.O.-
Bandaur, P.S.- Nima, Chandpura, District- Begusarai.
3. Vijay Singh, S/o- Late Bhola Singh Resident of Village- Bandaur, P.O.-
Bandaur, P.S.- Nima, Chandpura, District- Begusarai.
4. Sudha Devi, W/o- Vijay Kuwar Resident of Village and P.S.- Dalsinghsarai,
District- Samastipur.
... ... Petitioner/s
Versus
1. Ashique Mian Son of Habib Mian @ Horil Mian Resident of Village and
P.O.- Nima Chandpura, District- Begusarai.
2.1. Rahiaa Khatoon W/o Late Jalil Mian Resident of Village and P.O. Bandaur,
P.S. - Nima Chandpura, District- Begusarai.
2.2. Zakir Mian S/o Late Jalil Mian Resident of Village and P.O. Bandaur, P.S. -
Nima Chandpura, District- Begusarai.
2.3. Rabaan Mian S/o Late Jalil Mian, Resident of Village and P.O. Bandaur, P.S.
- Nima Chandpura, District- Begusarai.
2.4. Jabbar Mian Resident of Village and P.O. Bandaur, P.S. - Nima Chandpura,
District- Begusarai.
2.5. Sabrun Khatoon D/o Late Jalil Mian, Resident of Village and P.O. Bandaur,
P.S. - Nima Chandpura, District- Begusarai.
2.6. Sairoon Khatoon D/o Late Jalil Mian, Resident of Village and P.O. -
Bandaur, P.S. - Nima Chandpura, District- Begusarai.
3. Mokhatar Mian Son of Habib Mian @ Horil Mian Resident of Village and
P.O.- Nima Chandpura, District- Begusarai.
4. Doman Mian, S/o- Late Rajo Mian Resident of Village- Bandaur, P.O.-
Bandaur, P.S.- Nima, Chandpura, District- Begusarai.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Sanjeev Kumar, Advocate
Ms. Preeti, Advocate
Mr. Ravi Kumar Pandey, Advocate
For the Res Nos. 1 & 2 : Mr. Md. Shahnawaz Ali, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 25-02-2025
Heard the learned counsel for the respective parties.
Patna High Court C.Misc. No.1341 of 2019 dt.25-02-2025
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02. The instant petition has been filed by the
petitioners for quashing the order dated 22.07.2019 passed by
the learned Additional District Judge-VIII, Begusarai in Title
Appeal No. 40 of 2007, whereby and whereunder the learned
first appellate court rejected the petition dated 06.05.2019 filed
by the petitioners under Order 41 Rule 27 r/w Section 151 of the
Code of Civil Procedure, 1908 (for short 'the Code') for
producing additional evidence.
03. Learned counsel for the petitioner submits that the
petitioners are appellants before the learned first appellate court
and they have filed the title appeal against the judgment and
decree of Title Suit No. 43 of 1987 whereby and whereunder the
learned trial court set aside two sale deeds dated 20.05.1982.
During pendency of the appeal, one Doman Mian, the son of the
vendor of the petitioner, filed three Vakalatnama distorting the
case of the petitioner. The stand taken by the said Doman Mian
was highly prejudicial to the cause of the petitioners and his
contention is required to be refuted by adding positive evidence
by the appellants/petitioners, who have been allowed
amendment in their written statement. The appellants/petitioners
have their double storied pucca building over their purchased
land and the structure has been existing prior to the filing of the
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suit and the plaintiffs concealed this fact and did not properly
mention the value of the building and the property. Learned
counsel further submits that in the light of subsequent
development in the written statement and also on the ground of
suspicious Vakalatnama and additional written statement filed
by Doman Mian, it was imperative that the petitioners be
allowed to adduce the additional evidence. However, the learned
trial court committed an error of jurisdiction while passing the
impugned order.
04. Learned counsel appearing on behalf of
respondents opposes the submission made on behalf of the
petitioners. Learned counsel submits that there is no infirmity in
the impugned order and the same has been passed considering
all the facts of the case.
05. I have given my thoughtful consideration to the
rival submission of the parties and perused the record. It would
be appropriate to consider the law on the point. Order 41 Rule
27 of the Code reads thus :
"27. 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
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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."
06. The purpose of the aforesaid provision is to enable
the appellate court to see whether it requires the evidence sought
to be adduced to enable it to pronounce the judgment or for any
other substantial cause and the said provision has not been
enacted to fill up any lacunae in the case of either of the parties.
If the court feels that additional evidence is required for proper
decision of the case and to determine the real controversy of the
parties, such evidence could be allowed by the appellate court at
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any stage of the appeal.
07. Coming to the facts of the case, from the
application filed under Order 41 Rule 27 r/w Section 151 of the
Code, except for making submission about filing of three
Vakalatnama by Doman Mian, respondent no. 4, and claiming
that his stand is prejudicial to the interest of appellant, nothing
has been brought on record to show in what manner the
appellant would be prejudiced and what was the requirement of
additional evidence at this stage. Further, the appellants have
completely failed to provide the details about the evidence
which they intend to bring on record and its purpose. The
application has been filed with completely vague submission
that filing of three Vakalatnama would cause serious prejudice
to the case of the appellants and the value of the building and
land property was not less than 20 lacs and the appellants have
to adduce evidence on this point as well without providing of
relevance of this matter to the case of the appellants. It has
nowhere been mentioned that the appellants were not given any
opportunity to adduce the evidence by the learned trial court or
their evidence was refused by it. Therefore, the additional
evidence could be allowed only on the ground that the court
requires it for adjudication of real question of controversy
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between the parties. This is clearly not the case of the
petitioners. In these circumstances, natural inference is that the
documents have been brought only to fill the lacunae in the case
of the petitioners.
08. Moreover, reference could be made to the
decision of the Hon'ble Supreme Court in the case of N.
Kamalam (dead) and another v. Ayyasamy and another
reported in (2001) 7 SCC 503. It will be apposite to quote
paragraph 19 of the said judgment.
"19. ... the provisions of Order 41 Rule 27 have not
been engrafted in the Code so as to patch up the
weak points in the case and to fill up the omission in
the court of appeal-- it does not authorise any
lacunae or gaps in the evidence to be filled up. The
authority and jurisdiction as conferred on to the
appellate court to let in fresh evidence is restricted
to the purpose of pronouncement of judgment in a
particular way."
09. So, it is very much clear that the petitioners have
failed to bring their case under any of the conditions as
mentioned in Order 41 Rule 27 of the Code and their whole
effort seems to be clutching at straws.
10. Having regard to the aforesaid discussion, I am
not inclined to interfere with the impugned order dated
22.07.2019
passed by the learned Additional District Judge-
Patna High Court C.Misc. No.1341 of 2019 dt.25-02-2025
VIII, Begusarai in Title Appeal No. 40 of 2007 and hence, the
same is hereby affirmed.
11. As a result, the present petition stands dismissed.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 05.03.2025
Transmission Date NA
