Orissa High Court
Sankar Pradhan vs Premananda Pradhan Dead And Others on 26 August, 2015
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.8434 of 2007
In the matter of an application under Article 227 of the Constitution of
India.
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Sankar Pradhan .... Petitioner
Versus
Premananda Pradhan (dead)
and others .... Opposite parties
For Petitioner -- Mr.Alok Kumar Mohanty
Advocate
For Opp. Parties -- None.
PRESENT:
THE HON'BLE DR. JUSTICE A.K.RATH
Date of Hearing:19.8.2015 : Date of Judgment: 26.8.2015
DR. A.K.RATH, J.Aggrieved by and dissatisfied with the order dated 9.5.2001 passed by the learned Civil Judge (Sr.Division), Athagarh in Title Appeal No.6 of 1996, the petitioner has filed this petition under Article 227 of the Constitution of India. By the said order, the learned appellate court dismissed the application filed by the petitioner under Order 41 Rule 27 (1)(b) of C.P.C. to adduce additional evidence.
2. The petitioner as plaintiff filed a suit, for declaration of right, title and interest claming to be the adopted son of late Baja Pradhan, 2 confirmation of possession in the alternative for recovery of possession and for permanent injunction against the defendants restraining them not to interfere with the peaceful possession of the suit property, in the Court of the learned Civil Judge (Jr.Division), Athagarh, which was registered as T.S.No.3 of 1994. Pursuant to issuance of summons, defendants 1 to 6, 8 and 9 filed their written statement denying the assertions made in the plaint. The said suit was dismissed. Challenging the judgment and decree passed in the suit, the petitioner filed an appeal before the learned Civil Judge (Sr.Division), Athgrah, which is registered as Title Appeal No.6 of 1996. An application under Order 41 Rule 27(1)(b) of C.P.C. was filed for acceptance of certain documents, such as, transfer certificate of the plaintiff from Kakhadi M.E. School of the year 1994, loan pass book of Mancheswar Service Co-operative Society, demand notice of Kakhadi Society for different years, voter lists for the year 1970, 1988, 1993 and 1995 and certified copies of the order sheets of the Mutation Case Nos.1, 2 and 3 of the year 1994 as additional evidence.
3. The case of the petitioner is that he had entrusted his advocate with the several documents, but those documents were misplaced and, as such, they were not produced in the trial court. During pendency of the appeal, his advocate was able to trace out the said documents. An objection to the said petition was filed by the opposite 3 parties. The learned lower appellate court came to hold that while answering the issue no.6 the learned trial court scrutinized the records of rights and held that the mutation case was filed after institution of the suit, entries made in the primary school register were taken note of and in the school admission register, the petitioner is described as the son of Kunja Rout and not the son of late Baja Pradhan. Further, the other documents, as referred in the petition, are not required for better appreciation of the memorandum of appeal. Having held so, the learned lower appellate court rejected the petition.
4. Heard Mr.A.Mohanty, learned counsel for the petitioner. None appears for the opposite parties.
5. Order 41 Rule 27 of C.P.C. deals with production of additional evidence in the appellant court. Sub Rule 1 of Rule 27 of Order 41, which is the hub of the issue, is quoted hereunder:-
"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 documental, 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 (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or 4 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."
6. Section 107 (1) (d) C.P.C. enables the appellate court to admit additional evidence, whereas Order 41 Rule 27 C.P.C. furnishes grounds on which additional evidence may be taken. It confers discretionary power on the appellate court to allow additional evidence in appeal. The said power is circumscribed by limitations prescribed in Clauses (a), (aa) or (b) of Rule 27(1) of C.P.C.
7. In Persotim Thakur Vrs. Lal Mohar Thakur and others, AIR 1931 Privy Council 143, it is held that under Cl.(1) (b) of Rule 27 it is only where the appellate Court "requires" it, ( i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the 5 evidence as it stands some inherent lacuna or defect becomes apparent." It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing (emphasis laid). The same view was taken by this Court in the cases of Banchhanidhi Behera Vrs. Ananta Upadhaya and others, AIR 1962 Orissa 9 and State Bank of India Vrs. M/s.Ashok Stores & others, 53 (1982) C.L.T.552.
8. Keeping in view the enunciation of law laid down by the Privy Council in Persotim Thakur (supra), this Court has examined the case. Hearing of the appeal has not yet commenced. The appellate court is yet to examine the pleadings of the parties and evidence of both oral as well as documentary to adjudge the requirement of provisions of clause (b). Application for adducing additional evidence can only be considered at the time of hearing of the appeal. The learned lower appellate court has not exercised its discretionary power in a judicial manner.
9. In view of the same, the order dated 9.5.2001 passed by the learned Civil Judge (Sr.Division), Athagarh in Title Appeal No.6 of 1996 is quashed. The appellate court is directed to consider the application of the petitioner for adducing the additional evidence at the time of hearing of 6 the appeal. The appellate court is further directed to conclude the hearing of the appeal within three months.
The petition is allowed.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 26th August, 2015/CRB.
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