The conditions for admitting additional evidence under Order 41 Rule 27 CPC must be strictly satisfied.

ORDER

This Civil Revision Petition has been filed by the petitioner as against the order passed in I.A.No.123 of 2002 in A.S.No.91 of 2001 dated 18.02.2002, wherein the petitioner has filed a petition under Order 41 Rule 27 and the same was dismissed by the Appellate Court along with the main appeal. Hence, the present Civil Revision Petition has been filed by the petitioner.

2. The petitioner is the second respondent in the First Appeal. The suit has been filed for relief of specific performance of contract. According to the plaintiff, the suit property is the sale property of the first defendant. According to the second respondent, the first respondent acquired some properties through partition between the brothers of first respondent and at the time a sum of Rs.500/- was given to the first respondent for ovelty.

3.The first defendant purchased the property through the said amount of Rs.500/- and thereby the property is an ancestral property and the son of the first defendant also share holders of the property. In order to support the second respondent contention the partition deed, dated 06.06.1955 have to be marked and thereby filed an application to receive the documents. Due to the oversight and a copy of partition deed has not been produced and marked before the Trial Court and now it has to be marked as an additional evidence.

4. The first appellate Court after considering the rival submission made by either parties has dismissed the petition by holding that the second respondent fully aware of the existence of the partition deed dated 06.06.1955 and also to refer the said written statement and cross examined the plaintiff with reference to the said document. In spite of that, he failed to produce the documents before the Trial Court and no any explanation offered for non production of the documents before the Trial Court and thereby dismissing the application. In this suit, the petitioner raised the ground that the additional evidence can be marked at any time, to meet the ends of justice and lower appellate court failed to consider the document of registered partition deed. If the document is not received, grant prejudice would be caused, to the petitioner. As far as order 41 Rule 27 CPC is concerned, the petitioner has to satisfy that the Court from whose decreed an appeal preferred was refused to admit evidence which ought to have been admitted or the party seeking to produce the additional evidence establishes that not withstanding the exercise of due diligence such evidence was not knowledge or could not, after the exercise of due diligence produced by him at the time when the decree appeal against was passed or the appellate Court requires any documents to be produced or any witness to be examined to enable it to pronounce the judgment or any other substantial law. But no reasons stated by the petitioner to attract the provision of order 41 Rule 27 of C.PC. The petitioner purchased the property by holding that the property is a joint family property of the first defendant and his son, while so, he had knowledge about the above said partition deed during the time of purchase itself. But, he did not take any steps to produce the documents before the Trial Court and thereby the first Appellate Court has correctly dismissed the Application. The petitioner has failed to satisfy the conditions mentioned in the order 41 Rule 27 thereby no warrant to interfere the order of 1st appellate Court.

5. The learned counsel appearing for the 1st respondent/plaintiff has argued that the petitioner/appellant/1st defendant is not a party to the document and could not depose anything abut the said partition deed dated 06.06.1955.

Therefore marking of documents will not be served the purpose and mere marking of document is not proof of its contents. To support his contention he relied the judgment in LIC Vs. Rampad Singh Bisan 2010 11 SCC 491 wherein the Hon'ble has in para 31 as follows:

"Under the law of evidence also, it is necessary