LAXMAN BAJIRAO KONDEKAR Vs. KAMAL SHYAMRAO WAGHMARE

JUDGEMENT

(1.) This Appeal raises important substantial question of law relating to production of additional evidence in Appellate Court as permissible under Order 41, Rule 27 of the Civil Procedure Code, ( in short "the Code") and was admitted on 21st August, 1998 on following substantial questions of law :

(2.) Heard submissions of learned counsel appearing for respective parties, at length. It appears that Regular Civil Suit No. 315/1990 was instituted in the Court of learned Civil Judge, Junior Division, Kelapur, which was partly decreed on 19th December, 1994. In a suit for partition and separate possession of suit land, it was held that the plaintiff had 1 /5th share, however, regarding suit house the suit stood dismissed and, therefore, the plaintiff had challenged the judgment and order passed by the trial Court in the lower Appellate Court by filing Regular Civil Appeal No. 26/1995 which was allowed vis-a-vis suit house. The judgment and order was delivered by the lower Appellate Court on 27-11-1997.

(3.) Learned counsel for the appellant/original defendant No. 1 contended that there was oral evidence led about the transaction in respect of the suit house No. 71, situated at village Runza Tq. Kelapur that the owner of the suit house Bajirao had sold it to Shri M. H. Jaiswal in the year 1971 and thereafter on 29-9-1986 Shri M H Jaiswal had sold the suit house to Laxman Bajirao. According to learned counsel for the appellant, there was no pleading of money transaction between Bajirao and Shri M. H. Jaiswal. Shri M. H. Jaiswal also entered in the witness box as witness for defendant and deposed about the said transfers. However, in the trial Court the documentary evidence could not be adduced. It was sought to be adduced before the lower Appellate Court by an application under 0.41, R. 27 of the Code with prayer for additional evidence in the form of documents, such as, extract from Index in respect of the relevant transaction as also copy of the sale deed in question. It is the grievance of the appellant that the prayer to allow additional evidence in the light of oral evidence already recorded in the trial Court, ought to have been allowed by the lower Appellate Court. In fact and in law when transaction in question is in relation to transfer of immovable property, the rule of 'best evidence' would require that document ought to be insisted upon to be produced before the Court, to properly and effectively pronounce the judgment so as to dispose of the real controversy between the parties finally. The lower Appellate Court, it appears, called upon the other side to say; the Advocate for the respondent endorsed his objection. However we do not find any reasoned order recorded below Exh. 14 as to why permission to produce additional documentary evidence was refused.