A writ petition challenging the quashment of an order allowing additional evidence in a partition appeal. The court held that while delayed evidence is ordinarily rejected, the lower court was justified in admitting them prior to the final hearing given their undisputed necessity, dismissing the petition.
The writ petition was dismissed; no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.P.(C) No.21427 of 2013
7. 11.11.2016 In this application under Article 227 of the C
onstitution of India, the petitioner seeks quashment of an order dated 05.09.2013 passed by th
e learned Special Judge-cum-Additional District Judge (Vigilance), Balasore in T.A. No.29/68 o
f 2000-2011 in the matter of an application under Order-41, Rule-27 of the Code of Civil Proce
dure.
2. Heard learned counsel for the petitioners and the learned counsel for the oppo
site parties.
3. During pendency of the first appeal , the opposite party no.1 filed a petition under O
rder-41, Rule 27 of the Code for adduction of additional evidence and that has been allowed by
order dated 05.09.2013. It is now contended by the learned counsel for the petitioners that t
he application in question ought to have been taken up for decision after calling for objectio
n, during final hearing of the appeal as then the Court would have been in a better position t
o find out the relevancy of such additional evidence. In this connection, he has placed relian
ce upon the decision of this Court in case of Sukru Bibhar Vrs. Tileswar Naik and Others, 1998
(II) OLR-129.
4. Learned counsel for the opposite parties submits that here in view of the natu
re of documents which have been admitted in the evidence it was not so strictly necessary to b
e taken up for consideration during the final hearing of the appeal so as to be dealt thereaft
er.
5. I have carefully gone through the order in question.
It is seen that the appellate court was well aware of the position that such
matter of adduction of additional evidence are ordinarily to be taken up at the time of final
hearing of the appeal. But keeping that in view, it has gone to state the reasons as to why th
e particular matter in hand is dealt with before the hearing and at a stage prior to it.
6. In case of Sukru Bibhar (supra) in the civil revision, the order of rejection
for prayer for adduction of additional evidence had been called in question. It has been held
that:-
Law is well-settled that ordinarily an application for additional evidence should be co
nsidered along with the merit of the appeal as the appellate Court would be then in a better p
osition to find out about the relevancy and admissibility of the additional evidence. In the p
resent case, it appears that before taking the appeal for hearing, the lower appellate Court h
as considered the application and rejected the same. In view of the decision of this Court rep
orted in AIR 1962 Orissa 9, (Banchhanidhi Behera v. Ananta Upadhaya and others), it would have
been better for the appellate Court to postpone the consideration of the petition for adducin
g additional evidence till the hearing of the appeal on merit.
7. The above position cannot be taken to be having universal application. Althoug
h it has to be kept in mind while dealing such prayer as to whether at any stage prior to the
hearing of the appeal on merit, the appellate court would in any way be illegally inconvenienc
ed to consider than by its consideration during the hearing of the appeal on merit, yet there
cannot be any rigid rule that whenever an application for adduction of additional evidence is
filed in an appeal, its consideration has only to be at the time of hearing of the appeal on
merit and not before that.
For the purpose thus, there has to be a comparative assessment of the position
of the court as above to decide the stage as to when the court would be in a better position
to appreciate the relevancy and admissibility of the evidence whether before or during hearin
g on merit.
In a given case when it is found that consideration of the prayer for adductio
n of additional evidence at any stage prior to the hearing of the appeal on merit as per the r
ival case and in view of the answers to the issues recorded by the court below does not pose a
ny sort of legal hurdle on the path of the appellate court in judging the relevancy or admissi
bility of the documents and that would not make any difference, if the consideration of the p
rayer would be deffered till hearing of the appeal on merit, then the course may be so adopted
and in that event it cannot be said to be a flawed one.
8. With the aforesaid now let the order in question be tested.
The suit here is one for partition. There is no dispute that the documents sou
ght to be adduced in the additional evidence are the record of rights of the suit land standin
g in four mouzas; those are the record of rights published in the major settlement as also set
tlement prior to it in all the above case and the plot index showing the nexus of the land as
per the description of one settlement with the other. Admittedly, those had not been proved in
the case. The necessities of those documents for just decision of the case cannot be over- em
phasized. Neither the relevancy of these documents nor the admissibility is called in question
. The objection is in view of the belated move in the absence of showing anything to the satis
faction of the court as regards their non-availability, despite due diligence. The suitor in t
he case has asserted herself to be a illiterate pardanashin woman belonging to minority commun
ity. The grounds of the objections of the petitioners (respondents) are the followings:-
(1) That, the documents filed by the respondents after closer of hearing of the original suit
and during the appellate court is in admissible. The law is well settled that the documents sh
ould have been filed along with the plaint as per order -7 rule 3 C.P.C. The plaint should not
have been admitted when plaint is filed without any documents, order -41, rule 27 C.P.C. is v
ery much clear about production of additional evidence in the appellate court.
(2) That, in order to patch up the lacuna respondent has filed the documents after 27 years wh
ich is not admissible at all.
(3) That, the alleged document was with the respondents and provision order -41 rule 47(a a) i
s not applicable to respondents because the documents were with the knowledge of respondents b
ut not filed the same at the time of filing of plaint, as per under order 13 rule 1 of C.P.C.
Documents should have been filed prior to settlement of issue.
(4) That, the documents within the knowledge of respondents and they were the custodian of the
documents, so order -41 rule 27 is not applicable to the respondent for which the petition fi
led by respondent be rejected with cost.
9. In the instant case, there is no denial that such documents are not necessary
so as to enable the court to pronouncement the judgment. Rather existence of those docu
ments are within the knowledge of the parties showing the record position of the suit land as
per different settlements. The lower appellate court having found the documents to be relevant
as also necessary to enable it to pronounce the judgment effectively and having found those t
o be admissible and being sent up through the tests as per the provisions of order -41 rule 27
of the C.P.C. when has admitted those as additional evidence, this Court is not in a position
to accept the submission of the learned counsel for the petitioners that the consideration of
the prayer ought to have been deferred till hearing of the appeal on merit. This court also f
inds on comparative assessment that the consideration of the said prayer at the time of hearin
g of the appeal on merit would have made no difference at all. In my considered view looking a
t the rival case of the parties, the documents accepted as additional evidence with the undisp
uted relevancy, the course adopted by the lower appellate court by disposing the said applicat
ion at a stage prior to the final hearing of the appeal on merit is rather ideal and advantage
ous to the petitioners would be in a position to participate in the final hearing of the appea
l being well aware of these documents getting all such opportunities as available to negate th
e adverse impact of those evidence, if any, upon their case.
10. Accordingly, the writ petition stands dismissed. No order as to cost.
H
= 5 =
2 issues framed by the court
Whether an application for adduction of additional evidence under Order-41 Rule-27 CPC must always be considered during the final hearing of an appeal.
Whether the appellate court was illegally inconvenienced by considering the application for additional evidence prior to the hearing on merit.
Colour shows how this judgement treated each authority
Sukru Bibhar Vrs. Tileswar Naik and OthersReferred¶4
Sukru Bibhar Vrs. Tileswar Naik and Others, 1998 (II) OLR-129
Banchhanidhi Behera v. Ananta Upadhaya and othersDistinguished¶7
AIR 1962 Orissa 9 (Banchhanidhi Behera v. Ananta Upadhaya and others) · Who else cites this
3 provisions across 2 enactments
Petitioner
Opposite Party No.1
Unnamed Judge
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court