The court upheld that additional evidence in appellate proceedings is only admissible under specific conditions, underscoring the importance of judicial discretion and the res-judicata principle.

JUDGMENT :

SANJAY KUMAR DWIVEDI, J.

Heard learned counsel for the petitioner.

2. This petition has been filed under Article 227 of Constitution of India for setting aside order dated 19.06.2024 passed by the learned A.J.C.-V, Ranchi in Misc. Civil Application No. 404 of 2023 (in Civil Appeal No. 100 of 2020) whereby the petition filed by the petitioner under Order 41 Rule 27 of C.P.C. has been rejected.

3. Mr. Prakash Chandra, learned counsel for the petitioner submits that plaintiff/respondent no.1 has instituted Partition Suit No. 122 of 2002 for partition and claiming 1/2 share in the same property in question and in between the near about similar parties as mentioned in Partition Suit No. 183/2005. He submits that the said Partition Suit no. 122/2002 was dismissed vide order dated 16.09.2003 and for the same relief another partition suit being Partition Suit No. 183 of 2005 was instituted which was decreed in favour of the plaintiff/respondent no.1 by allowing her 1/2 share in the suit property in question vide judgement dated 08.02.2008 and decree signed on 21.02.2008 and against the said judgment F.A. No.117 of 2008 was filed before this High Court and thereafter the High Court remanded the matter to the learned District Court on the ground of pecuniary jurisdiction pursuant to that Civil Appeal No. 100 of 2020 was registered. He submits that in that appeal petitioner preferred petition under Order 41 Rule 27 C.P.C. which was rejected by the learned court. He submits that documents of earlier partition suit was found later on in view of that said petition was filed and the learned court without considering the provision of Order 41 Rule 27 C.P.C wrongly rejected the said petition. He further submits that since the earlier partition suit was already dismissed, another suit is barred by res-judicata in view of that said petition was filed and the learned court has wrongly rejected the said petition. On these grounds, he submits that order dated 19.06.2024 may kindly be set aside.

4. It is an admitted position that Partition Suit No. 122 of 2002 was instituted for partition which was dismissed. Partition Suit No. 183/2005 was instituted for partition of suit property. The contention was made before the learned First Appellate Court by way of filing of the said petition that in view of earlier dismissal of the suit, the second suit is barred by res-judicata.

5. The learned court has considered Order 41 Rule 27 of the C.P.C. and found that provision for production of additional evidence oral or documentary at appellate stage is governed by certain restrictions. The learned court considering the provision of Order 41 Rule 27 of the C.P.C has found that the conditions made therein is not fulfilled by the petitioner. The learned court has further found that in the Partition Suit No. 183 of 2005 the Issue No. III was whether the suit is barred by res-judicata and the learned court has found that defendant/petitioner has not filed document to show that Partition Suit No. 122 of 2002 was instituted by the plaintiff against them for the suit property and it was finally decided by the learned court. The written statement was also silent about the decision of the said suit and the res- judicata was decided in favour of the plaintiff. The learned court further found that the petitioner was given sufficient opportunity to produce the documents which he wants but he could not produce the same and in the light of above the learned court has dismissed the petition under Order 41 Rule 27 of C.P.C.

6. Further, res-judicata point has already been decided by the learned trial court. The appeal is still pending and the petitioner herein has to prove his case before