A party cannot adduce additional evidence at the appellate stage under Order 41 Rule 27 of the Code of Civil Procedure if the party has failed to exercise due diligence in producing the evidence during the trial.

U.N.Sinha, J.

1. This application has been filed by the defendant and it is directed against an order of the Subordinate Judge of Patna, dated 10th of May, 1962, passed in an appeal pending before him and numbered as Title Appeal No. 190/60 and 5/61. By the order complained against, the learned Judge has accorded permission to the plaintiff appellant before him, to adduce additional evidence in the appeal. The facts material for. the purpose of this application are as follows. The plaintiff had filed a title suit against the defendant, for evicting him, from the disputed property claiming to be a subsequent purchaser, who required the property for his own use and occupation. The plaintiff had also alleged that the tenant defendant had made defaults in payment of some rents due. The written statements of the defendant, as they now stand, contain, inter alia, a defence to the effect that the plaintiff was not the sixteen annas owner of the property in dispute. It was alleged that there were two more co-owners of the property, named Ahmad All Khan and Saadat Ali Khan, whose interests had not been purchased by the plaintiff. According to the defendant the suit for ejectment was liable to fail on account of this reason, amongst others. The issue under which this point was ultimately considered by the trial judge was issue No. 3, which read as, follows:-

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"Has the plaintiff got any title over the premises in suit?"

Two points were agitated by the parties before the learned trial judge under this issue, one of them being the outstanding interest, if any, of Ahmad Ali Khan and Saadat AH Khan. The learned trial Judge came to the conclusion upon the materials on record, that, the plaintiff was not the purchaser of the sixteen annas interest of the landlords. Ultimately, the plaintiffs suit failed before the trial Court. An appeal was carried by the plaintiff to the Court of appeal below. During the pendency of the appeal, the plaintiff filed two petitions for taking additional evidence in appeal. The documents which the plaintiff attempted to bring on the record were described as two deeds of relinquishment, dated the 15th of May, 1961, and the 4th of October, 1961. These two documents purport to be deeds of release executed by Abrar Ali (P. W. I) by virtue of power of attorney executed by Saadat Ali Khan and the son of Ahmad AH Khan. The document dated the 15th of May, 1961, purports to be on behalf of the son of Ahmad Ali Khan and the document dated the 4th of October, 1961, purports to be a document on behalf of Saadat Ali Khan. The plaintiffs contention before the appellate Court was to the effect that as these two documents had come into existence after the decision of the trial Court, they should be taken in evidence at the appellate stage, on the question of plaintiffs title. The learned Subordinate Judge has accepted the plaintiffs contention and has substantially held, that as the two documents offered by the plaintiff were not in existence at the time of the hearing of the suit and were thus not available to the plaintiff before the decision of the suit itself, the provision, of Order 41 Rule 27 of the Code of Civil Procedure was attracted and the plaintiff ought to be accorded permission to bring these two documents on the record. The learned Judge was also of the view that upon the finding of the trial Court under issue No. 3 to the effect that the plaintiff had not acquired sixteen annas title in the house in dispute, the two documents in question were material pieces of evidence in this case regarding the plaintiffs title. The learned Judge has concluded by saying that--

"In all fairness and taking equitable view of the matter I find that the appellants petition for taking these two documents into additional evidence is fit to be allowed."

2. For the reasons given below, I am of the opinion that the learned Subordinate Judge was in error in granting permission to the plaintiff to adduce additional evidence at the