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IN THE HIGH COURT OF JUDICATURE AT PATNA
ARUN KUMAR JHA, J.
Civil Misc. Jur. No. 1112 of 2023
(13.8.2024)
Birbal Yadav & Anr. ... Petitioners
vs.
Umesh Yadav & Anr. ... Respondents
Civil Procedure Code, 1908 – Order 41, Rule 27 r/w Section 151 – Additional Evidence – Petitioners were plaintiffs and their ancestors had filed title suit which was dismissed and decreed against the petitioners aggrieved by the dismissal of title suit, an appeal was preferred by the petitioners – It is not a case of the petitioners that the trial court has refused to admit the documents which was sought to be brought on record at the appellate stage – Furthermore, the documents were all along in the public domain and if the petitioners were diligent, they could have brought these documents at the very beginning before the trial court – The petitioners sought to bring on record the documents only at the appellate stage – Natural inference is that the documents have been brought only to fill the lacunae in the case of the petitioners – It is against the spirit of the Code to allow a party to adduce additional evidence without fulfilment of either of the three conditions mentioned in Rule 27 of Order 41 of the Code – Order 41, Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances – From the perusal of the amendment, what has cast aspersion on the sale of petitioners are not the sale deeds rather it is the specific averment of the petitioners that it is the sale deed – On this account as well, the document sought to be brought on record as additional evidence could not be allowed – Admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause – The true test, therefore is, whether the appellate court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced – Impugned order don't suffers from any infirmity and the same is affirmed – Petition dismissed. (Paras 8 to 13)
Arun Kumar Jha, J.—Heard learned counsel for the petitioners on the point of admission and I intend to dispose of the instant petition at the stage of admission itself.
2. The instant petition has been filed under Article 227 of the Constitution of India by the petitioners for quashing the order dated 11.09.2023 passed in Title Appeal No. 01 of 2020 by the learned Additional District Judge-II, Jamui whereby and whereunder the application under Order 41, Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) filed by the petitioners for bringing additional evidence on record has been rejected.
3. Shorn of unnecessary details, the facts of the case are that the petitioners were plaintiffs before the learned trial court and their ancestors had filed Title Suit No. 02 of 2012, which was dismissed and decreed against the petitioners. Aggrieved by the dismissal of title suit, an appeal was preferred by the petitioners. During pendency of the appeal, petitioners filed an application for amendment which was allowed vide order dated 22.10.2022 at the cost of Rs. 10,000/-. By way of the said amendment, paragraph-3 of the plaint was amended and the fact of sale of 1.76 ¼ acre land made through different sale deeds by the father of the defendant/respondent, namely Doman Mahto, was added. Further amendment was made that after sale deed of the plaintiffs, on 19.08.1993, the co-sharer of Doman Mahto, namely Bhatoo Mahto, sold 1.45 acre land of his share to Jaleshwar Yadav and Bhim Yadav which created cloud over the title of the plaintiffs. Thereafter, the petitioners filed an application under Order 41, Rule 27 read with Section 151 of the Code for bringing on record true copy of the sale deeds dated 12.09.1983 and 02.09.1987 as additional evidence. However, learned Additional District Judge-II, Jamui vide the impugned order dated 11.09.2023 rejected the petition dated 06.06.2023 filed under Order 41, Rule 27 r/w Section 151 of the Code.
4. Learned counsel for the petitioners submits that the impugned order is not sustainable as it is well settled principle of law that a pleading without evidence has no value in the eyes of law and, as such, if the amendment of pleading has been allowed on payment of heavy cost of Rs. 10,000/-, the corresponding documents in support of those amended pleadings ought to have been allowed. It was simply the prayer of the petitioners to bring on record corresponding sale deeds for an area of 1.76 ¼ acre land and since amendment has already been allowed and not allowing the documents to be exhibited in terms of the amendment would make the amendments fruitless. Once the amendments have been allowed, the petitioners are entitled to support their pleadings with the relevant documents and if the documents are not allowed to be brought on record that would mean making the amendments ineffective. Thus, the learned counsel submits that the impugned order is without merit and the same needs to be set aside.
5. Perused the record.
6. On perusal of the impugned order, I find that the petitioners filed a similar application earlier before court of learned District Judge, Jamui on 25.05.2023 with same prayer for taking the sale deeds dated 12.09.1983 and 02.09.1987 on record as additional evidence and the said petition was rejected by the learned District Judge, Jamui vide order dated 20.06.2022 holding that the said documents were not at all essential for the just decision of the appeal. The said order was not challenged by the petitioners and thus, the same attained finality. Now, the petitioners, in a contrived manner, want to circumvent the said order and approached the court with prayer for making amendment in the plaint and were successful in getting a favourable order for amendment in the plaint. However, making the amendment in the plaint and taking additional evidence under Order 41, Rule 27 of the Code are two entirely different matters and the considerations for the
The court affirmed that additional evidence in appellate proceedings is only permissible if necessary for a just decision, not to remedy deficiencies in the original case.
Additional evidence must be evaluated during the final appeal hearing, not before, ensuring judicial rigor in respecting procedural rules.
The admission of additional evidence in appellate proceedings requires a clear necessity to support the main issues at hand, as per Order 41 Rule 27 CPC.
Additional evidence under Order 41 Rule 27 CPC must be considered at the final hearing of an appeal, not prior.
The appellate court must consider applications for additional evidence at the time of hearing the appeal, ensuring relevance to the case.
The main legal point established in the judgment is the judicial exercise of discretion by the Appellate Court in considering applications for additional evidence under Order 41 Rule 27 CPC.
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