Jharkhand High Court
Arun Goswami vs Ranju Devi on 17 December, 2014
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
I.A. No. 1952 of 2010
In
First Appeal No. 176 of 2009
Arun Goswami ...... Appellant
Versus
Ranju Devi ...... Respondent
CORAM: HON'BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE
HON'BLE MR. JUSTICE D. N. PATEL
For the Appellant : Mr. Shashank Shekhar, Advocate
For the Respondent : Mr. Dilip Kumar Prasad, Advocate
C.A.V. on 12.11. 2014 Pronounced on 17.12.2014
Per D.N. Patel, J.:
I.A. No. 1952 of 2010
1.This interlocutory application has been preferred by the appellant under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 for production of additional evidence in the appellate court.
2. Learned counsel for the appellant submitted that certain vital documents which are annexed with the memo of this interlocutory application, may be permitted to be adduced before this Court because they effect the very root of the case and proves that the original defendant in Matrimonial Case No. 16 of 2008, who is present respondent, was suffering from mental disorder of permanent nature and, therefore, divorce application was preferred by this appellant for dissolution of the marriage.
3 Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, it appears that the documents upon which the reliance is placed by this applicant (original appellant) were in the custody of the present applicant from the very inception, but those documents were never produced before the Family Court, Palamau at Daltonganj.
2
4. Opportunity was given by the Family Court, Palamau at Daltonganj in Matrimonial Case No. 16 of 2008 to adduce the evidence, but the said opportunity was not availed by this appellant.
5. The documents presented with this interlocutory application are not the documents which are procured later on.
6. Additional evidence cannot be permitted to be adduced so as to fill up the lacunae or to fill up the weak points in the case, as held in N. Kamalam v. Ayyasamy, reported in (2001) 7 SCC 503. Paragraph 19 thereof reads as under:
"19. Incidentally, 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 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...................................."
(emphasis supplied)
7. For ready reference, Order XLI, Rule 27 of the Code of Civil Procedure, 1908 reads as under:
"Order XLI Rule 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 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, 3 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."
(emphasis supplied)
8. Thus in view of the aforesaid provision of Code of Civil Procedure, 1908, the additional evidence can be produced before the appellate court, if the party seeking production of additional evidence, establishes that despite due diligence, such evidence was not within his knowledge or despite due diligence, such documents should not be produced by him. These essential ingredients are missing in this case. Moreover, these are not the documents of the evidence relating to subsequent happenings. In this set of circumstances, we see no reason to entertain this interlocutory application and as there being no substance in the interlocutory application, the same is, hereby, dismissed. First Appeal No. 176 of 2009
9. Let the main appeal i.e. First Appeal No. 176 of 2009 be listed for its consideration on 19.01.2015.
(Virender Singh, C.J.)
(D.N. Patel, J.)
High Court of Jharkhand, Ranchi
Dated: The 17th day of December, 2014
Ajay/ N.A.F.R