In this writ petition, the petitioners have prayed for setting aside the order dated 8.2.2007 passed by learned 5th Additional District Judge, Giridih in Title Appeal no.100 of 1988, whereby learned lower appellate court has allowed the respondents' petition for additional evidence, filed under Order-41 Rule-27 of the Code of Civil Procedure.

2. The grievance of the petitioners is that the said petition has been allowed ignoring the requirement of Order 41 Rule-27 CPC. The appellants-petitioners failed to show that in spite of exercising due diligence, that evidence was not within their knowledge or could not, after exercise of due diligence, be produced by them, in the trial court. Learned court below overlooking the requirement of law has allowed the petitioners' petition.

3. Learned counsel, appearing on behalf of the petitioners, submitted that the impugned order is illegal and wholly without jurisdiction. The same has been passed without taking into consideration that the appellants failed to make out and establish that he had exercised due diligence, but the said document, which is sought to be produced by way of an additional evidence, was not within their knowledge or could not be produced by them in course of trial.

4. The respondents, on the other hand, opposed the petition. It has been submitted that the order of learned court below is sound, legal and based on speaking reasons. Learned court below has found that the document was in the possession of Jahur Mian-defendant no.1 and he did not hand over the same during his life time. After his death, the said document could be procured from his legal heirs and thereafter application was filed before learned lower appellate court seeking leave to produce the said document as an additional evidence. The said document is an important document and, in fact, it was the basis of the suit and the same is required to be produced for the purpose of enabling it to pronounce judgment for the ends of justice. Learned court below has considered the same and allowed the petition by a well reasoned order.

5. I have heard learned counsel for the parties and considered the submissions and materials on record. I also perused the impugned order.

6. The impugned order has been mainly challenged on the ground that the order has been passed without recording the required reason that the due diligence was exercised by the appellants during the trial but in spite of due diligence, the document could not be produced before the court below.

7. Mr. R.N.Sahay, learned counsel, appearing on behalf of the petitioners, referred to and relied on a decision of the Supreme Court in Karnataka Board of Wakf Vrs. Government of India & Ors.[2004(3) J.L.J.R.136] and submitted that the Supreme Court has held that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment. He referred to another decision of the Patna High Court in Ram Kumar Mahto & Anr. Vrs. Ram Subhag Rai & Ors.[1997(1) PLJR 908] and submitted that when no effort was made to file the insurance policy or certificate before the tribunal to show that it was covered by an insurance policy, the prayer to accept the insurance certificate as additional evidence, was not accepted.

8. Mr. P.N.Rai, learned counsel, appearing on behalf of the respondents, on the other hand, submitted that the court was fully satisfied from the materials on record that the document sought to be produced by way of additional evidence on record is necessary to enable it to pronounce judgment. Once the court is satisfied that the said document is the basis of the suit and the same is required to enable it to pronounce judgment, or for any other substantial cause, it is well within the jurisdiction of the appellate court to allow additional evidence