Heard learned counsel for the petitioner and perused the record.
The petitioner has preferred the present petition, inter-alia, with a prayer to set aside the order dated 28.08.2015 passed by the Additional District Judge, Court No.1, Basti, in Civil Appeal No.60 of 2000 (Ramesh Vs. Ganga Dei and others).
The facts in brief of the present writ petition are that the petitioner had purchased a land bearing No.71/04-12-0 of 1/2 share, for a sum of Rs.12,000/- from one Ram Asare by way of sale deed dated 06.10.1984 and thereafter the said land was mutated in his on 10.11.1986. Thereafter, Ram Asare had also given rest of the land to the petitioner on 29.06.1991 for a sum of Rs.20,000/- which was purhased by the petitioner by way of sale deed dated 29.06.1991. Thereafter the name of the petitioner was recorded in the revenue record and the petitioner had also taken possession over the purchased land.
Thereafter, Ganga Dei filed a Civil Suit No.5 of 1993 (Ganga Dei Vs. Ramesh) before the court concerned. The aforesaid Suit was decreed by the Trial Court vide its judgment and order dated 12.09.2000. Being aggrieved with the aforesaid order, the petitioner filed an Appeal No.60 of 2000 before the Appellate Court. Thereafter, an application was filed by the petitioner before the Appellate Court on 20.04.2001 to submit certain additional documents as provided under Order 41 Rule 27 C.P.C. On the aforesaid application, objections were filed by the defendant in the Suit. The Appellate Court i.e. the Additional District Judge, Basti, rejected the aforesaid application vide its judgment and order dated 28.08.2015, hence the present petition before this Court.
It is argued by learned counsel for the petitioner that the application filed under Order 41 Rule 27 C.P.C. was rejected by the Appellate Court without application of mind. It is further argued that in case the additional documents submitted by the petitioner before the Appellate Court were not taken into consideration the petitioner will suffer irreparable loss.
A specific provisions has been made under the C.P.C. to produce the additional evidence in the Appellate Court. Under Order 41 Rule 27(1)(aa) C.P.C. it is provided that the party seeking to produce the additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed or the Appellate Court requires any document to be produced or any witnesses to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
Order 41 Rule 27 of the Code of Civil Procedure is being reproduced hereunder:-
"27.Production of additional evidence in Appellate Court- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if?
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be exam med.
(2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission."
From the perusal of records, it appears that in the application filed by the petitioner under Order 41 Rule 27 C.P.C., nothing has been stated by the petitioner that in spite of due diligence the petitioner was not able to produce the additional evidence. In the order impugned it is clearly stated by the court below that nothing has been stated in the application that even after due diligence the petitioner was not able to produce documents as he wanted to produce the documents by way of additional evidence.
In this view of the matter, the Court is of the opinion that the order passed by the Appellate Court dated 28.08.2015 is absolutely perfect and valid order and the same does not call for any interference by this Court. The petition is devoid of merit and is liable to be dismissed.
Accordingly, the petition is dismissed.
Order Date :- 17.2.2021 pks