BANCHHANIDHI BEHERA Vs. ANANTA UPADHAYA

JUDGEMENT

(1.) THE plaintiff in the suit is the petitioner here. Defendants 1 and 6 are two brothers. The plaintiff-petitioner purchased the western half of the suit plots from defendant No. 6 on 10-8-51. Prior to that, defendants 2 to 5 had purchased the whole of the suit plots from defendant No. 1 purporting to have made the sale as the Karta of the family of defendants 1 and 6, on 10-4-51. Defendants 7 and 8 are the lessees of the plaintiff. The plaintiffs suit was one for recovery of possession, or in the alternative for partition. One of the main issues was whether there had been partition between defendants 1 and 6 prior to the two sales--The trial court passed a decree for recovery of possession in favour of the plaintiff, holding that there had been mutual partition between defendants 1 and 6, or their family properties. The two appeals were filed against this decree--one by defendant No. 1 and the other by defendants 2 to 5, and both the appeals were heard analogously. Defendant No. 1 as an appellant, filed a certified copy of the deposition of defendant No. 6 in a previous small cause suit No. 56 of 1952 in the Court of the munsif, Aska, and prayed the appellate court to treat that as additional evidence. The said small cause suit was one, in which defendant No. 6 was the plaintiff, a debtor was the main defendants and defendant No. 1 was a proforma defendant. In that suit in course of the cross-examination, defendant No. 6 had stated in the year 1952, "our lands have not been partitioned as yet. " It is this statement which was sought to be put in as additional evidence in the appellate Court. Without hearing the appeals on their own merits, the appellate Court recorded the following order on the said additional evidence sought to be adduced and remanded the case for retrial, and against the said order of remand and receipt of additional evidence, the present petition in revision has been moved.

(2.) THE relevant portion of the appellate order is as follows:

(3.) ORDER 41, Rule 27, C. P, C. deals with the question of taking additional evidence at the appellate stage. Sub-section (2) of the said rule provides, "wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission. " The learned appellate Court, without recording any reason in the present case as to why additional evidence was allowed to be produced, only said that he found no reason to reject the prayer for the same. This was clearly against the provision of the rule. However, it has been held in several cases including Iswar Chandra v. Jogendra Lal, AIR 4927 Cal 126 and biradhmal v. Prabhabati Kunwar, AIR 1939 PC 152 that the omission to state the reason does not amount to an illegality, but it is material irregularity. Since the appellate Court has recorded no reasons, one has to seek the reasons from the petition filed by defendant No. 1 as appellant, in that petition, he has stated that though he had procured the certified copy of the deposition previously, it was mislaid somewhere while the suit was in progress, and so he could not file the same in the trial court. Order 41, Rule 27 (1)C. P. C. according to Patna amendment, consists of three clause;)--Clauses (a) and (b) dealing with the right of the party in adducing additional evidence and Clause (c) dealing with cases where the court requires any particular evidence to be given, to enable it to pronounce the judgment. A party has the right to adduce additional evidence if the trial court has wrongly refused to accept any evidence or if a particular evidence was not within the knowledge or reach of the party, irrespective of due diligence. In the present case, it is not the party's contention that the document in question had been rejected by the trial Court, or that it was not within his knowledge. All that he said was that it was mislaid and so he could not get it before the trial. If the appellant (defendant no. 1) could not get the certified copy of the deposition, which is stated to have been mislaid, he could have procured another certified copy and filed it in tile trial stage, or he could have explained as to why he was not in a position to secure any such fresh certified copy. So, the case of the appellant for adducing additional evidence, could not be covered either by Clause (a) or Clause (b) of Sub-section (1) of Order 41, Rule 27, c. P. C. As to Clause (c), no doubt, it was competent for the court, after going through the whole case, to say that the document in question was necessary to enable the Court to pronounce the judgment. But before hearing the case on merit, the court could not be in a position to decide whether such a document was necessary or not, and as a matter of fact, the Court did not consider the document in question from that angle. It has been laid down in Persotim Thakur v. Lal Mohar thakur, AIR 1931 PC 143.