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Chandra Sekhar Pal and ors. Vs. Musmat Tapoi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 545 of 1981
Judge
Reported inAIR1986Ori130
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 27(1)
AppellantChandra Sekhar Pal and ors.
RespondentMusmat Tapoi and anr.
Appellant AdvocateM. Patra, Adv.
Respondent AdvocateR.C. Ram, Adv.
DispositionRevision allowed
Excerpt:
.....order is challenged on the ground that the court below failed to take into account a relevant and important consideration that is, whether the document sought to be introduced as additional evidence was required to enable the court to pronounce judgment......athagarh against the order rejecting their application under order 41 rule 27, of the c. p. c. to produce additional evidence.2. the opposite party no. 1 filed the suit (t. s. no. 16 of 1979) for declaration of her right, title and interest in the suit property, for confirmation of possession and for permanent. injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit property.3. in course of the trial of the suit, the petitioners wanted to summon one kunja panda to produce his sale deed as he had purchased some of the properties (plot no. 7) described in the schedule of the plaint. they wanted to prove thereby that the description of the suit properties as well as the boundary given in the plaint are incorrect. in spite of summons the.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. This application Under Section 115 of the C. P. C. is by the appellants in Title Appeal No. 1 of 1961 pending before the Subordinate Judge, Athagarh against the order rejecting their application under Order 41 Rule 27, of the C. P. C. to produce additional evidence.

2. The opposite party No. 1 filed the suit (T. S. No. 16 of 1979) for declaration of her right, title and interest in the suit property, for confirmation of possession and for permanent. injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit property.

3. In course of the trial of the suit, the petitioners wanted to summon one Kunja Panda to produce his sale deed as he had purchased some of the properties (plot No. 7) described in the schedule of the plaint. They wanted to prove thereby that the description of the suit properties as well as the boundary given in the plaint are incorrect. In spite of summons the said witness did not appear before the close of the hearing of the suit.

The suit having been decreed against them, the petitioners filed the appeal. In the appeal they filed an application under Order 41, Rule 27 of the C. P. C. for permission to produce certified copy of the sale deed executed in favour of Kunja Panda as additional evidence. They stated that the document in question was essential for just decision of the suit and it was beyond their control to produce the same earlier.

4. The lower appellate court on consideration of the application rejected the same by the impugned order. The reason for rejection given by the court below is in the following terms : --

'Thus it becomes evident that nowhere the defendant's petition was refused for the purpose of admitting the document in evidence. Rather it appears that the defendant appellants were not diligant in taking steps in time to prove that document. That being so and in allowing the petition of the appellants one should not lose sight of the difficulties of other side. Taking all these into consideration, I am not inclined to allow the petition of the appellants for adducing evidence to admit the certified copy of the sale deed in evidence and accordingly the petition under Order 41 Rule 27, is rejected.''

The impugned order is challenged on the ground that the court below failed to take into account a relevant and important consideration that is, whether the document sought to be introduced as additional evidence was required to enable the court to pronounce judgment.

The submission has substantial force. A perusal of the impugned order shows that the court below has not applied his mind to this aspect of the matter. The only ground on which he has proceeded is that the petitioners were not denied the opportunity to produce the document in question in the trial court and that permitting them to do so at the appellate stage would cause inconvenience to the respondent.

Undoubtedly, the parties in appeal are not entitled as of right to produce additional evidence in the appellate court and the powers to allow additional evidence to be produced should be exercised cautiously and sparingly. But the Court's power to accept such evidence in appropriate cases is wide. This is manifest from Sub-clause (b) of Clause 1 of Order 41, Rule 27 of the C. P. C. which runs as follows : --

'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. XX XX X

If the appellate court feels that the new evidence has a direct and important bearing on a main issue in the case, it is open to him to permit the party to introduce the same by way of additional evidence. Therefore, what that court is to consider is the bearing which the evidence sought to be adduced is likely to have on the matters in controversy in life appeal. The lower appellate court has not approached the case in this light. He appears to have kept in view only clause (a) of the Sub-rule (1) which provides that the appellate court may allow additional evidence to be produced if the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. He has overlooked the position that the consideration is not confined to this clause alone. As such the impugned order is unsustainable and has to be vacated.

5. In the result, the revision petition is allowed and the impugned order rejecting the petitioner's application under Order 41, Rule 27 of the C. P. C. is set aside. The lower appellate court is directed to reconsider the application for adducing the additional evidence aftergiving both sides an opportunity of being heard and dispose of the same in accordance with law. Both the parties will bear their respective costs of this proceeding.


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