The condition precedent for producing additional evidence at the appellate stage is that the party seeking to produce additional evidence establishes that such evidence was not within their knowledge or could not be produced by them at the time when the decree appealed against was passed.

Headnote:
Additional Evidence - Civil Procedure - Order 41 Rule 27 CPC - Sec. 151 CPC - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, the appellate court may allow such evidence or document to be produced or witness to be examined. (2) The condition precedent for producing additional evidence at the appellate stage is that the party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. The court found that the reasons assigned by the lower appellate court for rejecting the application of the appellants for adducing additional evidence were sound reasons and accordingly the impugned order did not call for any interference.
Fact of the Case:

The petitioners filed a writ petition seeking to quash orders related to the dismissal of their petition for adducing additional evidence in an appeal.
Finding of the Court:

The court found that the petitioners failed to establish that the additional evidence was not within their knowledge or could not be produced by them at the time when the decree appealed against was passed. The court also held that the lower appellate court did not commit any illegality or impropriety in considering the application for additional evidence before the final hearing of the appeal.
Issues: The issues revolved around the rejection of the petition for adducing additional evidence and the maintainability of the review petition.
Ratio Decidendi: The condition precedent for producing additional evidence at the appellate stage is that the party seeking to produce additional evidence establishes that such evidence was not within their knowledge or could not be produced by them at the time when the decree appealed against was passed.
Final Decision: The writ petition was dismissed as the court did not find any merit in the petitioners' claims.

JUDGMENT

Anubha Rawat Choudhary, J. - Heard Mr. Rishi Pallava, counsel appearing on behalf of the petitioners.

2. This writ petition has been filed for the following reliefs:-

"For quashing the order dated 12.07.2016 passed in Review Petition No. 16/2016 (Mentioned as Revocation Case No. 16/2016 in the order sheet) whereby and whereunder the Review Petition filed for reviewing the order dated 22.07.2014 passed in Title Appeal No. 20/2012 on Petition dated 29.11.2013 filed under order LXI Rule 27 CPC r/w Sec. 151 CPC has been dismissed on the ground that the petition is not maintainable rather devoid of any merit.

The petitioners further prays for quashing the order dated 27.06.2014 passed in Title Appeal No. 20/2012 on petition dated 29.11.2013 filed on behalf of the Petitioners under order 41 Rule 27 read with Section 151 CPC whereby and whereunder the Learned Court below has dismissed the petition dated 29.11.2013 for adducing additional evidence on the ground that the same is devoid of any merit."

3. Counsel for the petitioners submits as under:-

a) Title Appeal No. 20 of 2012 was filed against the judgment passed in Title Suit No. 34 of 2005 dated 31.08.2012 in favour of the plaintiffs.

b) An application under Order 41 Rule 27 of Code of Civil Procedure, 1908 for filing additional evidence at the appellate stage to bring on record three documents, namely, certified copy of register II in the name of Subedar Mian ( new), certified copy of register II (old) and certified copy of Khatian of latest survey which were not in possession of the petitioners during the pendency of title suit.

c) Said petition was rejected vide order dated 27.06.2014 which referred only to two documents out of three which the petitioner wanted to bring on record by way of producing additional evidence and the impugned order has been passed by indicating that no substantial cause has been mentioned in the petition as to why such document was not produced before the learned trial court.

d) He submits that the petitioners had also filed review petition before the learned appellate court, which was numbered as Revocation Case No. 16 of 2016, and was also dismissed vide order dated 12.07.2016 by indicating that the original petition was dismissed by citing reasons and the review was not maintainable.

e) Counsel for the petitioners relied upon the judgment passed by the Hon''ble Supreme Court reported in, Eastern Equipment & Sales Limited Versus Ing. Yash Kumar Khanna, (2008) 12 SCC 739 and submits that an application for additional evidence should always be taken at the time of final hearing of the appeal and accordingly the application should have been considered by the learned court below at the time of final hearing and the same has been wrongly rejected prior to the final hearing of the appeal and at the stage when the case was pending for hearing. Counsel also referred to the judgment passed by Hon''ble Supreme Court reported in Jaipur Development Authority vs. Kailashwati Devi, (1997) 7 SCC 297 (SMT)) which has been referred to at paragraph no. 7 of the aforesaid judgement reported in, Eastern Equipment & Sales Limited Versus Ing. Yash Kumar Khanna, (2008) 12 SCC 739

4. After hearing counsel for the petitioners this court finds as under:-

A. The petitioners had filed petition under order 41 rule 27 for adducing additional evidence to bring on record Original application for Information in which information was received by Manan Ansari; Certified Copy of Register-II (new) in the name of Subedar Mian; Certified Copy of Register-II (old ) and Certified copy of Khaitan of latest survey.

B. From perusal of the petition for adducing additional evidence it is apparent that there is no explanation as to why the said documents were not obtained and filed during the trial . The only explanation given is that the said documents were not in possession of the appellants during the pendency of the suit and after filing of the appeal they have collected these docum

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2019 Supreme(Jhk) 1428

IN THE HIGH COURT OF JHARKHAND AT RANCHIAnubha Rawat Choudhary, J.Qamruddin Ansari @ Kamruddin Ansari - AppellantVersusSalil Ansari - RespondentWrit Petition (Civil) No. 4870 of 2016Decided On : 29-01-2019

The condition precedent for producing additional evidence at the appellate stage is that the party seeking to produce additional evidence establishes that such evidence was not within their knowledge or could not be produced by them at the time when the decree appealed against was passed.

Cases Referred (2)

IN THE HIGH COURT OF JHARKHAND AT RANCHI
Anubha Rawat Choudhary, J.
Qamruddin Ansari @ Kamruddin Ansari - Appellant
Versus
Salil Ansari - Respondent
Writ Petition (Civil) No. 4870 of 2016
Decided On : 29-01-2019