MUKHA NAYAK Vs. UMAKANTA SAHU

JUDGEMENT

(1.) Rejection of application filed under Order 41, Rule 27 of the Coda of Civil Procedure (in short 'the Code') for adducing additional evidence by the appellate Court is the grievance of the petitioners in the present civil revision.

(2.) THE opposite parties as plaintiffs instituted Original Suit No. 32/82 (I) before the learned Subordinate Judge, Bhadrak, presently designated as Civil Judge (Senior Division) for a declaration that registered sale deed dated 18 -5 -1932 is void, for permanent injunction and alternatively for passing a decree for partition. The trial Court decreed the suit by declaring the registered sale deed as void and also passed the decree permanently injuncting the present petitioners. Against the aforesaid judgment and decree, the petitioners preferred Title Appeal No. 69/89 before the learned Additional District Judge, Bhadrak. During the pendency of the appeal, the appellants therein filed two applications, one for amendment of written statement and another for adducing oral evidence. The learned appellate Judge rejected the application for amendment holding that the amendment in effect introduced a new case and therefore, the same was impermissible. The application for adducing additional evidence has been rejected by the appellate Court on the ground that the provisions enumerated under Order 41, Rule 27 of the Code do not permit a party to patch up and fill up the omissions before the Court of appeal. It has been further opined that the Court is in a position to pronounce the judgment on the basis of the material before it without taking into consideration the additional evidence sought to be adduced. It is pertinent to state here that prayer was to bring in a gift deed by way of additional evidence.

(3.) THE learned counsel for the petitioner submits that the approach of the appellate Court is not in accordance with the mandate of Order 41, Rule 27 of the Code. It is his submission that the finding of the learned appellate Judge is absolutely cryptic and the matter has not been looked into from the proper perspective. The learned counsel for the opposite parties contends that there is nothing illegality in the order inasmuch as there is no justification to allow the application for adducing additional evidence while the same is n t supported by pleadings. It is contended that the appellate Court having rejected the application for amendment of the written statement and the said order having been conceded to, the order of rejection of the prayer under Order 41, Rule 27 of the Code does not suffer from any informity.