Petition challenged rejection of additional evidence (comparative survey map by Amin) in a title appeal. The High Court held the petitioner failed to show due diligence or reasons for not producing the map at trial, and no lacuna could be filled at the appellate stage.
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IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL MISCELLANEOUS JURISDICTION No.1342 of 2017
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Yogendra Ram son of Jaldhar Ram, Resident of Village- Merhalla, P.O.Narwara, P.S.- Tariyani, District- Sheohar.
... ... Petitioner/s
Patna High Court C.Misc. No.1342 of 2017 dt.21-02-2024 2/6
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT
Date : 21-02-2024
Heard learned counsel for the petitioner on the point of admission and I intend to dispose of the present petition at the stage of admission itself.
Patna High Court C.Misc. No.1342 of 2017 dt.21-02-2024 3/6
the respondents. The learned First Appellate Court went on to reject the petition of the petitioner without considering its merit. Learned counsel further submits that the impugned order of the learned court below is bad in the eyes of law. The comparative map of old and new survey plots is necesary to clarify that from cadestral survey certain new plots have been carved out but the learned First Appellate Court did not consider the same and rejected the prayer for the additional evidence and hence, the impugned order is not sustainable in the eyes of law and same be set aside.
4. Order XLI Rule 27 reads as under:-
“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
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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 examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”
The Hon’ble Supreme Court in the case of A.
Andisamy Chettiar vs. A. Subburaj Chettiar , reported in (2015) 17 SCC 713 in paragraph 12 held as under:-
“ 12. From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against
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the spirit of the Code to allow a party to adduce additional evidence without fulfilment of either of the three conditions mentioned in Rule 27. In the case at hand, no application was moved before the trial court seeking scientific examination of the document (Ext. A-4), nor can it be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him. Now it is to be seen whether the third condition i.e. one contained in clause (b) of sub-rule (1) of Rule 27 is fulfilled or not.”
learned First Appellate Court has mentioned that it was not clear that when the Amin has prepared the comparative map and when the comparative map was prepared. From further perusal of the copy of the petition which was filed before the learned First Appellate Court for producing additional evidence. Para 2 of the petition reads as under:-
“That in the portion of Judgment in page no. 89 in para-2 in line no. 3, 4, it has been mentioned that the Plaintiff/Appellant could not produce
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sufficient documents like comparative map so that Plaintiff/Appellant seeks your permission to allow the Appellant to file Additional Evidence so that he may file comparative map prepared by Amin as Evidence.”
(Arun Kumar Jha, J)
DKS/-
| AFR/NAFR | NAFR |
|---|---|
| CAV DATE | NA |
| Uploading Date | 22.02.2024 |
| Transmission Date | NA |
1 issue framed by the court
Whether the First Appellate Court erred in rejecting the petitioner's prayer under Order XLI Rule 27 CPC to produce a comparative map as additional evidence.
Colour shows how this judgement treated each authority
A. Andisamy Chettiar vs. A. Subburaj ChettiarRelied on
(2015) 17 SCC 713 · Who else cites this
1 provisions across 1 enactments
Yogendra Ram
Ghandeshwar Singh
Ram Babu Singh
Chandraket Singh
Lalti Devi
Arun Kumar Jha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
