Orissa High Court
Parbati vs Duryodhan Samantaray on 1 December, 1989
Equivalent citations: AIR1990ORI184, AIR 1990 ORISSA 184
ORDER S.C. Mohapatra, J.
1. Plaintiff filed the suit asserting that he is the adopted son of defendant's father. Defendant contested the relationship and after trial, suit was dismissed against which plaintiff preferred an appeal. During pendency of the appeal, plaintiff filed an application for admitting some documents as additional evidence under Order 41, Rule 27 C. P. C. claiming that they are certified copies and public documents which contained admissions of the defendant before the Consolidation Authorities with regard to the relationship. It was stated that appellant could not produce the documents in the trial court due to shifting of the office of the Consolidation and Settlement Authorities. However, along with the application, no document was filed. Defendant-respondent objected to the acceptance of any additional evidence. Appellate court passed an order that the application would be considered at the time of hearing. Appeal was beared and was posted to 19-1-1989 for judgment. During that period, plaintiff filed an application for amendment of the plaint for which judgment could not be delivered. After the said application was disposed of, appellant filed an application that without disposing of the petition for additional evidence, the appeal need not be heard and both the applications for additional evidence and the appeal cannot be heard together. Appellate court accepted such a prayer and heard the question of admitting additional evidence. On perusal of the petition for additional evidence, appellate court held that the appellant having asserted that the documents to be admitted as additional evidence would disclose about his claim of relationship which could not be obtained despite due diligence and attempt to obtain the certified copy of those documents from the consolidation authorities and settlement authorities and having further asserted that unless those documents were filed in the appeal, Court would not be in a position to dispose of the appeal. Accordingly, it allowed the petition calling upon the appellant to produce the documents immediately. This Civil Revision has been filed assailing the said order.
2. From the impugned order, it is clear that the documents were not before the Court. Appellate court has not discussed in what manner attempt was made by the appellant to obtain the certified copies of the documents and what was the nature of diligence of the appellant. It is not the case of the appellant that the documents were not in existence when the suit was heard and came into existence after disposal of the suit. It is also not the case of the appellant that he had no knowledge about such documents. His case is that despite due diligence and attempt he could not obtain the same before the decree appealed against was passed and the appellate court would require those documents to enable it to pronounce the judgment.
3. Order 41, Rule 27 C. P. C., empowers an appellate court to admit additional evidence which reads as follows :--
"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 preferred has refused to admit evidence which ought to have been admitted, or (A) (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."
4. Since it is not the case of the appellant that the trial court refused to admit such documents Clause (a) has no application. Clauses (aa) and (b) are attracted on the grounds made out by the appellant. As the language of the Clause (aa) shows, appellant was required to establish that after exercise of due diligence, he could not produce those documents at the time the decree appealed against him was passed. Mere assertion in an application has not the effect of establishing a fact. Certified copies of documents before various authorities were sought to be adduced as additional evidence. Therefore, appellant was required to establish that he made applications for certified copies prior to the disposal of the suit, he sought for adjournment of the hearing of the suit since the documents were not available or he called for those documents through the process of the Court and the Court either refused adjournment to give opportunity to the appellant to produce the same of refused to call for the same Unless these facts are established, inference of due diligence cannot be drawn. Appellate court, not having taken into consideration these relevant questions and having relied upon the assertion of the appellant only, has exercised jurisdiction with material irregularity and as such, the order is liable to be set aside.
5. Next ground for admission of the documents as additional evidence is that the appellate court would require the same to enable it to pronounce the judgment. Without looking into the documents appellate court could not have come to a conclusion that those documents would be necessary to enable it to pronounce the judgment. In the present case, documents have not been produced for perusal of the Court. Besides, whether the documents would be necessary to enable the appellate court to pronounce its judgment, can be effectively considered while hearing the appeal itself. There is no scope for consideration of those documents earlier to find out whether for enabling the appellate court to pronounce the judgment, the same would be necessary. Appellate court rightly passed an order that the application would be considered at the time of hearing. There is no sufficient cause for verifying that order. Merely because the judgment was delayed, appellate court ought not to have accepted the prayer of the appellant to hear the application first. This also amounts to exercise of jurisdiction with material irregularity and on this ground, the order is liable to be set aside.
5-A. In conclusion, impugned order is set aside. Appellate court is directed to consider the application for additional evidence at the time of hearing of the appeal. In case, documents are not produced by that time, or they are not admissible in evidence, question of allowing the application would not arise. In case, documents are filed and clear assertions on affidavit are made by the appellant explaining the manner in which he exercised due diligence, the question may be considered after giving opportunity to the respondent to contest the assertions.
6. In the result, Civil Revision is allowed. There shall be no order as to costs.