Point of Law: Order 41 Rule 27 of Code is a provision which enables party to file additional evidence at first and second appellate stage.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. S.K. Ghosh, the learned counsel appearing on behalf of the Petitioner and Mrs. P. Bhattacharya, the learned counsel appearing on behalf of the respondents.

2. This is an application under Article 227 of the Constitution challenging the order dated 27.7.2022, whereby the application under Order XLI Rule 27 (1) (b) read with Section 151 of the Code of Civil Procedure,1908 (for short the Code) praying for allowing the Plaintiff/the Appellant to adduce additional evidence to prove original Sale Deed No. 2983/2009 and Sale Deed No. 2984/2009 was rejected on the ground that the Plaintiff/Appellant was trying to patch up the lacuna in adducing the evidence during the trial which resulted in dismissal of the suit. It was also observed by the First Appellate Court that the Plaintiff side has failed to show any ground to allow the petition under Order XLI Rule 27 of the Code.

3. The learned counsel for the Petitioner has submitted that the First Appellate Court while passing the impugned order failed to take into consideration the stage at which an application under Order XLI Rule 27 (1) (b) of the Code is required to be taken up for consideration. He has referred to the judgment of the Supreme Court rendered in the case of Union of India vs. Ibrahim Uddin, (2012) 8 SCC 148 and more particularly to paragraph Nos. 49 to 52, wherein the Supreme Court has observed that an application for taking additional evidence on record at the appellate stage is to be heard at the time of final hearing of the appeal at the stage after appreciating the evidence on record the Court reaches the conclusion that the additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. The learned counsel for the Petitioner has submitted that in the instant case even prior to the hearing of the appeal, the application for taking additional evidence was taken and on the ground that the Plaintiff/Appellant was trying to fill up the lacuna i.e. by producing the original of the Deeds of Sale, the said application was rejected.

4. On the other hand, Ms. P. Bhattacharya, the learned counsel appearing on behalf of the Respondent submitted that though the Supreme Court in the case of Union of India vs. Ibrahim Uddin (supra) have held the stage of consideration of the appeal and she has no quarrel with the said proposition but she submits that the First Appellate Court also is required to take into consideration the judgment of the Supreme Court in the case of Union of India vs. K.V. Lakshman, (2016) 13 SCC 124 wherein the Supreme Court had categorically mandated that if the Appellant is allowed to adduce additional evidence, the Respondent has also to be given an opportunity to give rebuttal evidence.

5. Upon hearing the learned counsel for the parties, this Court would like to take note of the two judgments submitted by both the counsel for the respective parties. The Supreme Court in the case of Union of India vs. Ibrahim Uddin (supra) had at paragraph Nos. 49 to 52 stated the stage of consideration of an application for taking additional evidence on record at the appellate stage. Paragraph Nos. 49 to 52 of the said judgment being relevant is quoted herein-below:

“49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The 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