Location: OHC, Cuttack Date: 19-Dec-2025 13:54:11 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.950 of 2025 (In the matter of an application under Article 227 of the Constitution of India)

Makeswar Jha …. Petitioner -versus-

State of Odisha, represented … Opposite Parties through its Commissioner-cum- Secretary, Urban Development Department and Others Advocate(s) appeared in this case:-

For Petitioner : Mr. Jagabandhu Sahu, Advocate For Opp. Parties : Mr. T.K. Dash, AGA CORAM: JUSTICE B.P. ROUTRAY

JUDGMENT

16^th December, 2025 B.P. Routray, J.

1. Heard Mr. J. Sahu, learned counsel for the Petitioner and Mr.

T.K. Dash, learned AGA for State - opposite parties.

2. Present CMP is directed against order dated 2^nd May, 2025 of learned 1^st Appellate Court, i.e. District Judge, Balangir passed in RFA No.87 of 2022, wherein prayer of the petitioner under Order 41 Rule 27 C.P.C. has been rejected.

Location: OHC, Cuttack Date: 19-Dec-2025 13:54:11

3. Present petitioner is the plaintiff who filed CS No.73 of 2013 before the learned Additional Senior Civil Judge, Balangir and the same was dismissed on contest. Against the same the petitioner preferred RFA No.87 of 2022 before the District Judge and during pendency of the appeal he filed a petition on 5^th March, 2025 to adduce additional evidence presenting certain documents in his favour. Such prayer of the appellant to adduce additional evidence in the appeal was rejected vide impugned order dated 2^nd May, 2025 on the ground that the appellant has not explained any reason with regard to justification for failure to produce such documents in course of trial.

4. The scope of the provisions under Order 41 Rule 27 of C.P.C. is limited and it is settled that it has to be exercised in exceptional circumstances upon satisfaction of the party regarding exercise of due diligence. In Erach Boman Khavar v. Tukaram Sridhar Bhat and another, (2014) 1 OLR SC 544 it is observed that, “party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial inspite of Location: OHC, Cuttack Date: 19-Dec-2025 13:54:11 exercise of due diligence and that the evidence could not be produced as it was not within his knowledge”.

5. In Sanjay Kumar Singh v. The State of Jharkhand, (2022) 7 SCC 247 it has been observed as follows:-

“4. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature. As observed and held by this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at Location: OHC, Cuttack Date: 19-Dec-2025 13:54:11 an earlier stage or not, but it depends upon whether or not the appella