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2020 Supreme(Jhk) 997
IN THE HIGH COURT OF JHARKHAND
Rajesh Shankar, J.
Sr. Prasanna (CSST) - Appellants
Vs.
Arbind Kumar and Ors. - Respondent
WP(C) No. 7112 of 2019
Decided On : 15-09-2020
For the Appellant : Shailendra Kr. Singh
Headnote:
Code of Civil Procedure, 1908 – Order XLI Rule 27 – Indian Evidence Act, 1872 – Sections 66, 60 & 65 – Agreement for sale – Execution – Present writ petition has been filed for setting aside order passed by learned District Judge-IV, Dumka in Civil Appeal whereby application filed by petitioner under Order XLI Rule 27 of CPC read with Sections 60 & 65 of Indian Evidence Act, 1872 has been rejected. – Held, Contention of petitioner has been dealt with by learned Appellate Court, after taking into consideration legal principles and said application has been rejected by a reasoned order. – Moreover, her claim of filing said document at trial stage also did not find support from lower Court record and as such same was not accepted by learned Appellate Court. – Further, petitioner wanted to produce photocopy of agreement dated 2.6.2003 which is a secondary evidence claiming that original of same was in possession of plaintiff. – In view of Section 65(a) of Indian Evidence Act, 1872, secondary evidence may be given of existence, condition or contents of a document when original is shown or appears to be in possession and power of person against whom document is sought to be proved or of any person out of reach of or not subject to process of Court or of any person legally bound to produce it and when after notice mentioned in Section 66, such person does not produce it. – Petitioner has failed to show that original Court below had given notice to plaintiff to produce original document and he had failed to produce same. – In view of said fact, it is evident that petitioner has not shown due diligence to produce said document before learned Trial Court. – Writ Petition Dismissed
ORDER :
Rajesh Shankar, J.
1. The present writ petition has been filed for setting aside the order dated 4.12.2019 (Annexure-10 to the writ petition) passed by the learned District Judge-IV, Dumka in Civil Appeal No. 20 of 2018 whereby the application dated 25.11.2019 filed by the petitioner under Order XLI Rule 27 of CPC read with Sections 60 & 65 of the Indian Evidence Act, 1872 has been rejected.
2. The factual background of the case, as stated in the writ petition, is that the plaintiff/respondent No. 1 filed a suit being Title Suit No. 65 of 2005 for specific performance of the contract, injunction and delivery of possession. The defendant No. 1 (the respondent No. 2 herein) filed his written statement admitting the execution of the agreement for sale, however, denied the claim of the plaintiff stating that he failed to perform his part of contract by not paying the remaining consideration amount by or on 2.10.2003 i.e. within four months from the date of agreement to sale executed on 2.6.2003. During the pendency of the suit, the defendant No. 1 sold the suit property to the petitioner and as such she was also impleaded as the defendant No. 2 in the suit. The said suit was finally allowed in favour of the plaintiff vide judgment and decree dated 23.2.2018. Aggrieved thereby, the petitioner preferred an appeal being Civil Appeal No. 20 of 2018 before the learned Principal District Judge, Dumka and during the pendency of the said appeal, she filed an application under Order XLI Rule 27 of CPC read with Sections 60 and 65 of the Indian Evidence Act, 1872 seeking permission to adduce photocopy of the agreement dated 2.6.2003. However, the learned Trial Court rejected the said application vide impugned order dated 4.12.2019. Hence, the present writ petition.
3. Learned counsel for the petitioner submits that the learned Court below has rejected the said application of the petitioner without assigning any cogent reason. It is further submitted that the petitioner had explained sufficient reasons for the delay caused in filing the said document. However, the learned Court below has erroneously rejected the said application of the petitioner. It is further submitted that the original copy of the agreement dated 2.6.2003 was in possession of the plaintiff/respondent No. 1 and as such the petitioner filed the photocopy of the same on 31.5.2017, however, the learned Trial Court neither kept the same on record nor considered it while passing the judgment and thus even after due diligence of the petitioner, the said document could not be produced by her earlier.
4. Heard learned counsel for the petitioner and perused the relevant materials available on record. Before coming to the merit of the case, it would be appropriate to go through the provisions of Order XLI Rule 27 of CPC which read as under:
"Order XLI Rule 27. Production of additional evidence in Appellate Court.--
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--
(a). The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(aa) 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, or
(b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court - may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission."
5. Order XLI Rule, 27 of CPC delineates that no additional evidence shall be permitted to be produced by either of the parties in
