Allowed

Avinash Namdeo Fad v. Shashikala Namdeo Fad and Another

Bombay HC1 Apr 2013WP/3297/2012

Case brief

AI extract

What is this about?

The petitioner challenged an appellate order allowing the respondent to tender additional evidence in a partition suit. The High Court held that none of the statutory conditions for admitting additional evidence were met and allowed the writ petition to quash the order.

What did the court decide?

The writ petition is allowed; the impugned order allowing additional evidence is quashed; the application for additional evidence is rejected.

Avinash Namdeo Fad Vs Shashikala Namdeo Fad and Another — Partition | Bombay HC (2013)

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wp3297-12.order

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR.

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Writ Petition No. 3297 of 2012

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Avinash Namdeo Phad

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Vs.

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Shashikala Namdeo Fad

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Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders.

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Court's or Judge's Orders.

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Shri D.M. Upadhye, counsel for the petitioner. Shri R.J. Mirza, counsel for respondent nos. 1 & 2.

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CORAM : SMT. VASANTI A. NAIK, J.

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DATE : 1 st April, 2013.

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By this petition, the petitioner impugns an order passed by the first appellate court on 3.12.2011, allowing an application filed by the respondent-original plaintiff for permission to tender additional evidence.

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The respondent had filed a suit against the petitioner for declaration, partition, separate possession and mesne profits. The petitioner filed the written statement and resisted the claim of the respondent. The trial court, however, decreed the suit filed by the respondent by the judgment and decree dated 22.8.2007. The petitioner filed an appeal under Section 96 of the Code of Civil Procedure for challenging the judgment passed by the trial court. In the appeal filed by the petitioner, an application was filed by the respondent-original plaintiff under Order 41 Rule 27 of the Code of Civil Procedure for permission to lead additional evidence. Though the application was strongly opposed by the petitioner, the first appellate court allowed the application by the impugned order dated 3.12.2011.

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On hearing the learned counsel for the parties and on a perusal of the impugned order, as also the application filed by the respondent for permission to tender

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wp3297-12.order

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additional evidence, it appears that the first appellate court was not justified in allowing the application. The first appellate court erroneously observed that the respondentplaintiff has succeeded in proving that the deed of Power of Attorney was not exhibited due to inadvertence and the same caused a lot of inconvenience to the respondent. The first appellate court erroneously observed that the respondent intended to tender evidence which was discovered after the passing of the decree by the trial court and hence a case was made out by the respondent for tendering additional evidence under Order 41 Rule 27 of the Code of Civil Procedure. The approach of the first appellate court in deciding the application was not just and proper. No reason was stated by the respondent in the application for permission to tender additional evidence except the reason that the respondent no.1 could not attend the court due to her illness and had authorised the respondent no. 2 to act on her behalf. The first appellate court failed to consider that none of the conditions mentioned in the provisions of Order 41 Rule 27 of the Code of Civil Procedure were satisfied in this case. It was not a case where the trial court had refused to admit the evidence and was also not a case where the respondent had established that in spite of due diligence the evidence could not be tendered before the decree was passed. The first appellate court also did not hold that the additional evidence sought to be tendered by the respondent was necessary for pronouncing the judgment. In fact, the application filed by the respondent does not mention as to what specific evidence was not tendered in the trial court though the same was necessary for pronouncing the judgment. Though it was not the case of the respondent that the evidence sought to be tendered was discovered by the

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wp3297-12.order

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respondent after the decree was passed, the first appellate court erroneously observed so in the impugned order dated 3.12.2011. Since none of the conditions prescribed by the provisions of Order 41 Rule 27 of the Code of Civil Procedure were satisfied in the facts of the case, the first appellate court could not have allowed the application filed by the respondent.

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Hence, for the reasons aforesaid, the writ petition is allowed. The impugned order is quashed and set aside. The application filed by the respondent for permission to tender additional evidence stands rejected. In the facts of the case, there would be no order as to costs.

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JUDGE

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Hirekhan

Avinash Namdeo Fad v. Shashikala Namdeo Fad and Another

Case brief

What is this about?

What did the court decide?

Avinash Namdeo Fad v. Shashikala Namdeo Fad and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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