GINDIA BAI Vs. ELTORT LTD. CO.

JUDGEMENT

(1.) PETITIONER has challenged order dt. 3.10.2005 passed by First Additional District Judge, Katni in Civil Appeal No. 40 -A/04 by which the appellate Court decided two applications filed by the petitioner, one under Order 6 Rule 17 C.P.C seeking amendment in the plaint, another application under Order 41 Rule 27 CPC seeking permission of the Court for producing additional evidence. Respondents contested the application on the ground that the proposed amendment which is sought by the petitioner before the appellate Court was also prayed before the trial court and the trial Court vide order dt. 27.1.2004 (in the impugned order it is mentioned as 22.1.2004) allowed the application and the trial Court permitted the plaintiff to incorporate the aforesaid pleadings in the plaint. When the trial Court itself has allowed the same amendment, there was no question of repeating the aforesaid pleadings by filing application before the appellate Court. So far as the application filed under Order 41 Rule 27 CPS. is concerned, it was misconceived as the documents were already produced before the trial Court and were marked as exhibits in the evidence but were not duly proved in the trial and to fill up the lacuna, the aforesaid document cannot be admitted as additional evidence before the appellate Court. The appellate Court by the impugned order found that the proposed amendment as prayed in the application was prayed before the trial Court and it was allowed and then plaintiff had incorporated the aforesaid amendment in the pleadings. In these circumstances, there is no necessity for allowing the aforesaid application. This factual position has not been disputed by the petitioner before this Court, so in this part of the order there is no error and needs no interference.

(2.) SO far as the application under Order 41 Rule 27 CPC is concerned, the sole contention of the petitioner before this Court is that aforesaid application ought to have been decided by the appellate Court at the time of decision of the appeal while hearing the appeal on merits and not an intermediate stage. Reliance is placed to the Apex Court judgment in State of Rajasthan vs. T.N. Sahani and others : (2001) 10 SCC 619 and submitted that in view of the law laid down by the Apex Court this petition may be allowed, in so far as it relates to rejection of an application under Order 41 Rule 27 CPC. The factual position is that the documents which were filed by the petitioner in appeal were already admitted in evidence by the trial Court but it appears that aforesaid documents were not duly proved by the petitioner before the trial Court so the application was filed before the appellate Court for the production of the additional evidence with an intention to prove the aforesaid documents. When the documents were already received in evidence by the trial Court, then there was no question of filing additional evidence before the appellate Court. Whether those documents were proved or not, or the trial Court had duly afforded an opportunity to prove the aforesaid documents, or whether the petitioner is entitled to get such an opportunity further, all the questions are still open to the petitioner to be raised at the time of hearing of the appeal. But to fill up the lacuna, there is no question of production of additional evidence before the appellate Court. The appellate Court is having jurisdiction to admit additional evidence, if the trial Court from whose decree the appeal is preferred had refused to admit evidence which ought to have been admitted and the party seeking the produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed or 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. But the application filed by the petitioner does not fulfill any such requirement of the law as envisaged under Order 41 Rule 27 CPC.

(3.) SO far as the judgment relied on by the petitioner in T.N. Sahani is concerned, in the aforesaid case the applications filed under Order 6 Rule 17 and under Order 41 Rule 27 CPC were not considered at the time of hearing of appeal on merits and on intermediate stage. In that case applications under Order 41 Rule 27 CPC. as well as another application under Order 6 Rule 17 C.P.C. praying, for amendment of the grounds of appeal were filed in appeal before the High Court. The application under Order 6 Rule 17 was dismissed. Taking that aspect into consideration, the High Court dismissed the application under Order 41 Rule 27 C.P.C. The Apex Court considered this aspect held that it is always open to the Court to look into the document and for that purpose the provisions of Order 41 Rule 27 CPC can be invoked. The application under Order 41 Rule 27 C.P.C. should have been decided alongwith the appeal. If the High Court found that the documents are necessary to pronounce the judgment in the appeal, it would have allowed the same, if not, the same would have been dismissed at that stage but before hearing of the appeal, it would be inappropriate to decide the application. Apart from this the reason given for the dismissal of the application were found tenable. But the facts of present case are entirely different. In this case the application itself was misconceived and does not fall within the purview of Order 41 Rule 27 CPC. The appellate Court considering the application found that the aforesaid documents are already on record and were admitted by the trial Court in evidence. In these circumstances, if the appellate Court considering the aforesaid aspect has rejected the application, there is no jurisdictional effort in the impugned order. Recently the Apex Court considering similar question in Shri Harju vs. Smt. Phulari Churmarawati & Ors. : [2005 (1) SCC 191][ held: The grievance of the appellants in this appeal is that despite having noted the aforesaid, the High Court did not decide the application under Order 41 Rule 27 of the Code of Civil Procedure at all. Learned counsel appearing for the respondents has submitted that the High Court's jurisdiction under section 100 of the Code is a limited one and that it was not open to the appellant to seek leave under Order 41 Rule 27 to adduce fresh evidence at the stage of second appeal. It is further submitted that in any event the application of the appellants was vague and did not otherwise fall within Order 41 Rule 27.