Khetri Vikas Samiti vs Panchayat Samiti
2022 Latest Caselaw 3032 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 17694/2019

Khetri Vikas Samiti, Khetri Through Its Joint Secretary Amit
Meharda S/o Shri S.l. Meharda, Aged About 47 Years, R/o Khetri,
District Jhunjhunu, (Rajasthan)
                                                                   ----Petitioner
                                   Versus
1.     Panchayat Samiti, Khetri Through Pradhan Panchayat
       Samiti Khetri, Jhunjhunu.
2.     Panchayat Samiti Khetri Through Development Officer,
       Khetri, Jhunjhunu
3.     State Of Rajasthan Through Deputy Secretary, (Law)
       Department Of Rural And Panchayati Raj Department.
4.     District Collector, Jhunjhunu.
5.     S.d.o. Khetri, District Jhunjhunu.
6.     Tehsildar Khetri, District Jhunjhunu.
7.     Principal Vinodni College, Khetri, District Jhunjhunu.
8.     Shri D.n. Sharma (Head Master), Vinodni College Khetri,
       District Jhunjhunu.
9.     Shri Dinesh Saraswat (Professor), Vinodni College Khetri,
       District Jhunjhunu.
10.    Shri    Ramavtar          Manager,          Khetri       Vikas    Samiti,
       Khetri,jhunjhunu.
                                                                ----Respondents

For Petitioner(s) : Mr.R.P. Garg, Adv. with Mr.Vikram Yadav, Adv.

For Respondent(s) : Mr.Akshay Sharma, Addl. Govt.

Counsel.

Mr.Arvind Kumar Sharma, Adv.

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Order

11/04/2022

The present writ petition has been filed by the

petitioner challenging the order dated 11.10.2019 passed by the

(2 of 7) [CW-17694/2019]

Additional District Judge, Khetri (hereafter 'the Appellate Court'),

whereby, applications dated 30.08.2019 and 17.09.2019 filed by

the petitioner under Order 41 Rule 27 CPC, have been dismissed.

Learned counsel for the petitioner submitted that suit

No.18/1999 filed by the plaintiff-respondent was decreed by the

Civil Court on 24.09.2013 and the petitioner feeling aggrieved

against the judgment and decree, has filed an appeal before the

Appellate Court.

Learned counsel submitted that during pendency of the

appeal, the petitioner sought permission of the Appellate Court to

place on record certain documents and orders, for facilitating the

disposal of appeal.

Learned counsel submitted that the Court below has

rejected the applications only on account of such documents being

filed belatedly, whereas possession of such documents, is alleged

to be in favour of the petitioner since 1999.

Learned counsel submitted that only on account of

alleged delay in producing the documents, the Court below could

not have rejected the application.

Learned counsel submitted that delay cannot be a sole

ground to reject an application filed under Order 41 Rule 27 CPC.

Learned counsel further submitted that the genuineness

of the document has never been disputed and the Appellate Court

has ample power to consider the documents so produced for the

purpose of deciding the appeal.

Learned counsel also places reliance on a judgment

passed in the case of Major Kanhaiya Lal Vs. Banwari Lal &

ors. reported in [(2017)1 WLC (Raj.) 361].

(3 of 7) [CW-17694/2019]

Learned Addl. Govt. Counsel for the respondents-State

Mr.Akshay Sharma has opposed the prayer sought in the writ

petition.

Learned Addl. Govt. Counsel submitted that the Court

below has rightly rejected the application as the petitioner is

admittedly in possession of the document since 1999 and such

documents should have been produced by the petitioner at

relevant time.

Learned counsel for the respondents submitted that the

suit filed by the plaintiff has been decreed by judgment dated

24.09.2013 and the petitioner after lapse of more than six years

after filing of the appeal, cannot be allowed to bring the

documents on record by way of evidence.

Learned counsel for the respondents-State submitted

that the petitioner wants to fill the lacunae in his case by

producing the documents and for filing up the lacunae under Order

41 Rule 27 CPC, no such application can be entertained by the

Court below.

Learned counsel for the respondents places reliance on

a judgment passed by the Apex Court in the case of Union of

India Vs. Ibrahim Uddin & Anr. reported in [(2012)8 SCC

408].

Learned counsel on the strength of said judgment

submitted that the parties who files an application for bringing the

additional evidence on record, has to show due diligence for

production of a document and if satisfactory reasons are not

provided, than the Appellate Court cannot take such document as

evidence on record.

(4 of 7) [CW-17694/2019]

Learned counsel for the respondents submitted that an

appeal filed by the appellant is pending since 2013 and in order to

delay the proceedings, the application was filed by the petitioner

before the Appellate Court.

Learned counsel submitted that the respondents while

filing reply to the application also disputed the genuineness of the

document and as such, the order passed by the Court below may

not be interfered with.

I have heard learned counsel for the parties and

perused the material available on record.

This Court finds that the Apex Court in the case of

Union of India Vs. Ibrahim Uddin (supra) has laid down the

parameters for taking additional documents on record at

subsequent stage, the Apex Court has held that the discretion by

the Appellate Court is to be exercised judiciously by taking into

consideration the relevance of the document and circumstances

under which such evidence could not be lead in the Court below.

The Apex Court has further laid down that if evidence

so produced is relevant for pronouncing the judgment by the

Appellate Court, such power can be exercised by taking the

additional document as evidence on record.

This Court further finds that the purpose of production

of additional evidence at the Appellate stage is well defined under

Order 41 Rule 27 CPC.

The provision of sub-Rule (aa) of Order 41 Rule 27 CPC

clearly provides that additional evidence which could not be

produced in spite of due diligence or if the same was not within

knowledge of a party and the party shows that the document so

(5 of 7) [CW-17694/2019]

produced, will enable the Appellate Court to pronounce the

judgment, then Court can permit filing of such an application.

This Court, from perusal of the applications which have

been filed by the petitioner, finds that the petitioner intends to file

certain orders, which have been issued by the State Authorities

and further there are certain judgments, which he intends to rely

in order to prove his case.

This Court finds that the documents so required for

disposal of appeal may be required to be considered by the

Appellate Court, in order to decide the controversy which has been

raised before it.

This Court finds that by producing the additional

evidence if the petitioner is permitted to support his case on the

basis of certain documents, it is for the Appellate Court to give its

opinion or finding, after considering the entire material before it.

This Court is not going to pronounce over the

genuineness or relevancy of the document which are said to be

produced by the petitioner and it is only for the Appellate Court to

decide such issue.

This Court cannot deny an opportunity to a

party/litigant to produce the document at Appellate stage.

This Court, after considering the facts of the present

case also, finds that the petitioner has given explanation of not

having possession of certain documents due to shifting of their

office at different places and as such, if explanation has been

furnished by petitioner, the Court below ought to have considered

all these aspects and only on the ground of delay, the applications

filed by the petitioner, could not have been rejected.

(6 of 7) [CW-17694/2019]

The submission of learned counsel for the respondents

that in order to delay the proceedings, the petitioner without

exercising of due diligence moved applications, suffice it to say by

this Court that the suit filed by the respondents has already been

decreed in their favour and it is for the appellant to prove his case

before the Appellate Court.

The submission of learned counsel for the respondents

that once an application is allowed under Order 41 Rule 27 CPC,

than subsequent proceedings would be required to be undertaken.

Learned counsel Mr.R.P. Garg, on instructions,

submitted that if this Court allows the writ petition by permitting

the petitioner to place the documents on record by way of affidavit

then the subsequent proceedings required under Order 41 Rule 28

& 29 CPC, need not be followed.

This Court, considering the said statement, deems it

proper to allow the writ petition by permitting the petitioner to

produce on record the document which he intends to produce by

the applications dated 30.08.2019 and 17.09.2019.

This Court, considering the facts of the case, deems it

proper to direct the petitioner to pay a sum of Rs.5,000/- towards

cost, to the respondent-plaintiff, before the Trial Court on the next

date.

Accordingly, the present writ petition stands allowed.

The impugned order dated 11.10.2019 passed by the Appellate

Court is quashed and set aside.

This Court makes it clear that the Appellate Court, after

taking on record the documents which will be produced by the

petitioner, will proceed in expeditious manner and will decide the

(7 of 7) [CW-17694/2019]

appeal expeditiously, without granting unnecessary adjournments

to the parties.

(ASHOK KUMAR GAUR), J

Himanshu Soni/43

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