Quashed

Kalandi Rout v. Bipin Swain

Orissa HC15 Jan 2019CMP/462/2017

Case brief

AI extract

What is this about?

The High Court of Orissa quashed an order rejecting an application for additional evidence under Order 41 Rule 27 CPC. The Court directed the appellate court to consider the application during the appeal hearing, citing prior precedent requiring the court itself to identify inherent lacunae in existing evidence.

What did the court decide?

The order dated 07.04.2017 in R.F.A. Case No. 88/49 of 2016/2010 is quashed. The appellate court is directed to consider the application for additional evidence at the time of the hearing of the appea

Kalandi Rout Vs Bipin Swain — Civil Procedure and Limitation | Orissa HC (2019)

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HIGH COURT OF ORISSA: CUTTACK

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C.M.P. No.462 of 2017

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In the matter of an application under Article 227 of the Constitution of India.

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Kalandi Rout and others …. Petitioners

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Versus Bipin Swain …. Opposite Party

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For Petitioners … Mr. Samir Kumar Mishra, Adv. Mr. S. Pattanayak, Adv. For Opposite Party … Mr. Dayananda Mohapatra, Adv. Mr. M. Mohapatra, Adv.

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J U D G M E N T

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PRESENT:

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THE HONOURABLE DR. JUSTICE A.K.RATH

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Date of hearing & judgment: 15.01.2019

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DR.A.K.RATH, J. This petition challenges the order dated 07.04.2017 passed by the learned Additional District Judge, Nimapara in R.F.A. Case No. 88/49 of 2016/2010, whereby and whereunder the learned appellate court rejected the application of the petitioner under Order 41 Rule 27 CPC for acceptance of documents as additional evidence.

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02. Since the appeal is to be disposed of on a short point, the facts may not be recounted in detail. Pithily put, the plaintiffspetitioners instituted T.S. No. 74 of 96 in the court of learned Civil Judge (Junior Division), Nimapara for declaration of title, confirmation

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of possession and permanent injunction. The suit having been dismissed, they filed R.F.A. No. 88/49 of 2016/2010 before the learned Additional District Judge, Nimapara. During pendency of the appeal, they file an application under Order 41 Rule 27 CPC to accept two documents i.e. certified copy of R.S.D. dated 23.02.79 as Ext.23 and R.S.D. dated 5.1.80 as Ext.22 from the side of plaintiffsappellants instead of Ext.D as additional evidence. Learned appellate court rejected the same.

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03. Heard Mr. Samir Kumar Mishra along with Mr. S. Pattanayak, learned counsel for petitioners and Mr. Dayananda Mohapatra along with Ms. M. Mohapatra, learned counsel for the opposite party.

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04. Mr. Mishra, learned counsel for the petitioners submits that the application for additional evidence can be considered at the time of hearing of the appeal. But then, the learned appellate court rejected the same before hearing of the appeal.

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05. Per contra, Mr. Mohapatra, learned counsel for the opposite party submits that after hearing of the learned counsel for the parties, the learned appellate court passed a reasoned order. There is no illegality or infirmity in the same.

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06. The sole question that hinges for consideration of this Court is as to whether the learned appellate court is justified in allowing the application for additional evidence before hearing of the appeal.

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07. The subject-matter of dispute is no more res integra. In Sankar Pradhan v. Premananda Pradhan (dead) and others , 2015

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(II) CLR 583, this Court in paragraph-7 of the report held as follows:

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“7. In Parsotim Thakur Vrs. Lal Mohar Thakur and others, AIR 1931 Privy Council 143, it is held that under Cl.(1) (b) of Rule 27 it is only where the appellate Court “requires” it, (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but “when on examining the evidence as it stands some inherent lacuna or defect becomes apparent.” It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing (emphasis laid). The same view was taken by this Court in the cases of Banchhanidhi Behera Vrs. Ananta Upadhaya and others, AIR 1962 Orissa 9 and State Bank of India Vrs. M/s.Ashok Stores & others, 53 (1982) C.L.T.552.

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Keeping in view the enunciation of law laid down by the Privy Council in Persotim Thakur (supra), this Court has examined the case. Hearing of the appeal has not yet commenced. The appellate court is yet to examine the pleadings of the parties and evidence of both oral as well as documentary to adjudge the requirement of provisions of clause (b). Application for adducing additional evidence can only be considered at the time of hearing of the appeal. The learned lower appellate court has not exercised its discretionary power in a judicial manner.”

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(emphasis laid)

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09. In view of the authoritative pronouncement of this Court in the case of Sankar Pradhan, the order dated 07.04.2017 passed by the learned Additional District Judge, Nimapara in R.F.A. Case No.

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88/49 of 2016/2010 is quashed. Learned appellate court shall consider the application for additional evidence at the time of hearing of the appeal. The petition is allowed. There shall be no order as to costs.

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…..……………………..

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DR. A.K.RATH, J.

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Orissa High Court, Cuttack. The 15^th January, 2019/PM

Kalandi Rout v. Bipin Swain

Case brief

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Kalandi Rout v. Bipin Swain

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