IMPORTANT POINT
Production of additional evidence at appellate stage is subject to fulfilment of certain conditions.

JUDGMENT

K.R. Mohapatra, J.—This matter is taken up through hybrid mode.

2. Mr. Debendra Kumar Sahoo, learned counsel by filing Vakalatnama enters appearance on behalf of the legal heirs of deceased Opposite Party No.2. Vakalatnama is taken on record.

3. Order dated 12th July, 2016 (Annexure-5) passed by learned Additional District Judge, Kandhamal, Phulbani in R.F.A. No.9 of 2015 is under challenge in this CMP, whereby an application filed by the Appellant No.1-Petitioner under Order XLI Rule 27 CPC, has been rejected.

4. It is submitted by Mr. Rao, learned Senior Advocate appearing for the Petitioner that R.F.A. No.9 of 2015 arises out of the judgment and decree passed by learned Civil Judge (Senior Division), Phulbani in C.S. No.12 of 2013, which was filed by the Petitioner and Proforma Opposite Party No.2 for declaration of their right, title and interest over the suit house and for eviction of Defendant-Opposite Party No.1. The suit was dismissed on contest holding that the Petitioner-Plaintiff No.1 is not the title holder of the suit property. While adjudicating the suit, learned trial Court observed that the certified copies of the documents filed by the Appellants were not admissible in evidence. The original documents, certified copies of which are filed before learned trial Court, were available in the case record of learned S.D.J.M., Phulbani in a criminal case. Thus, the Plaintiffs produced the certified copies of those documents. However, during pendency of the appeal, the Appellants obtaining the original documents from the Court of learned S.D.J.M., Phulbani filed an application under Order XLI Rule 27 CPC to admit those documents as additional evidence.

5. It is his submission that those documents show the flow of title in favour of the Plaintiffs-Appellants. Since the suit was filed for declaration of right, title and interest and also for eviction, flow of title was required to be proved. Due to inadvertence, the Appellants could not obtain the original documents from the Court of learned S.D.J.M., Phulbani to be produced before learned trial Court. Those documents clearly show the flow of title in favour of Plaintiffs-Appellants and are necessary for just adjudication of the appeal and no effective judgment can be passed without those documents.

6. Learned appellate Court holding that in absence of any diligence being shown by the Plaintiffs for not producing the original documents, certified copies of which were produced before learned trial Court and that an effective judgment can be pronounced without the documents sought to be produced as additional evidence, rejected the petition. Learned appellate Court failed to appreciate that the certified copies could have been relied upon as secondary evidence. However, in order to get over the anomaly of admissibility of certified copies of those documents, an application under Order XLI Rule 27 CPC was filed. Learned appellate Court without appreciating the matter in the aforesaid perspective, rejected the same. Hence, he prays for setting aside the impugned order under Annexure-5 and to direct learned appellate Court to accept the documents as additional evidence.

7. While concluding his argument, Mr. Rao, learned Senior Advocate submitted that the petition under Order XLI Rule 27 CPC should have been considered at the time of hearing of the appeal. Thus, consideration of application at any stage before hearing of the appeal is an abuse of process of Court. Hence, he submits that the impugned order under Annexure-5 is not sustainable in the eyes of law.

8. Mr. Udgata, learned counsel for the Opposite Party No.1 submits that none of the documents sought to be adduced as additional evidence, prove the flow of title in favour of the Appellant No.1-Petitioner. The Appellants had relied upon eighteen documents during trial. In the petition under Order XLI Rule 27 CPC, the Appellants sought to introduce twenty nine documents as additional evidence. There is no explan