The appellate court has the discretion to allow additional evidence under Order 41, Rule 27(1)(b) of the Code of Civil Procedure, even if the lower court has refused to admit evidence that ought to have been admitted or the evidence that could not be produced by a party after due diligence.

G.S.Singhvi, J.

1. This revision petition has been filed against the order dated 30.10.1995 passed by the Additional District Judge, Rohtak, whereby an application filed by the plaintiff-respondent under Order 41, Rule 27 of the Code Civil Procedure has been allowed and it has been permitted to produce the statement of account relating to the petitioners.

2. Punjab National Bank filed a suit on 2.12.1987 against the defendant- petitioners for recovery of Rs. 3,78,747.89 with the allegation that the defendants failed to repay the three loans advanced to them. During the pendency of the suit an application was filed by the respondent for permission to produce additional evidence in the form of statement of account. This application came to be dismissed by the Senior Sub Judge, Rohtak, on 18.5.1993 on the ground that the same had been filed after hearing of the arguments and that such application was not maintainable. Thereafter, a preliminary decree was passed by the learned Senior Sub Judge for recovery of Rs. 2,91,828.84 in favour of the respondent-bank. Dissatisfied with the preliminary decree, the plaintiff-respondent filed an appeal and also moved an application under Order 41, Rule 27 of the Code of Civil Procedure for permission to produce additional evidence. This application has been accepted by the learned Additional District Judge.

3. Shri R.S. Mittal, Senior Advocate, appearing for the petitioners argued that after dismissal of the application filed under Order 18 Rule 17-A of the Code of Civil Procedure, the appellate Court could not entertain and allow the application filed by the respondent under Order 41 Rule 27 of the Code of Civil Procedure. Learned counsel argued that the order dated 18.5.1993 passed by the Senior Sub Judge acquired finality because the same was not challenged in revision petition and in view of this legal position, the appellate Court ought to have rejected the application filed by the respondent under Order 41 Rule 27 of the Code of Civil Procedure. Shri Mittal further argued that the appellate Court has failed to take note of the contradictory statements given by the plaintiff-respondent in the two applications. According to the learned counsel, before the trial Court the respondent had given reason for non-production of the statement of account as inadvertence but before the appellate Court the failure of the counsel to produce the statement of account has been advanced as the reason for permission to produce additional evidence. Learned counsel relied on the judgments of this Court in Madan Mohan Aggarwal v. Smt. Mansadevi and Ors., (1985-2) 88 P.L.R. 206 ; Ram Gopal Banarsi Dass v. Satish Kumar and Anr., (1990-2) 98 P.L.R. 277; Sat Pal v. Ram Kumar and Ors., (1992-2) 98 ; Smt. Chhotu v. Bijinder Kumar and Ors., 1994 P.L.J. 241, and a judgment of the Supreme Court in Natha Singh and Ors. v. The Financial Commissioner, Taxation, Punjab and Ors., A.I.R. 1976 S.C. 1053.

4. Shri Mehtani, learned counsel for the respondent-Bank argued that the document sought to be produced in the form of additional evidence is a statement of account prepared Under Section 4 of the Bankers Book Evidence Act 1891 (for short, the Act) which is maintained by the Bank in the regular course of its business and, therefore, there could be no objection to the production of the statement of account, particularly when it related to the petitioners. He strenuously argued that the trial Court was wrong in rejecting the application filed by the respondent under Order 18, Rule 17-A of the Code of Civil Procedure and, therefore, the learned Additional District Judge has done nothing wrong in exercise of his discretion to accept additional evidence.

5. Order 18 Rule 17-A and Order 41 Rule 27 of the Code of Civil Procedure read as under :-

"Order 18 Rule 17-A:-

Production of evidence not previously known or which could not be produced despite due diligence.-Where a party satisfies the Court that after the exercise of d