MD. IDRISH ALI Vs. GANESH DAS

JUDGEMENT

(1.) Heard Mr. S.K. Ghosh, the learned counsel appearing on behalf of the Petitioner and Mrs. P. Bhattacharya, the learned counsel appearing on behalf of the respondents.

(2.) This is an application under Article 227 of the Constitution challenging the order dtd. 27/7/2022, whereby the application under Order XLI Rule 27 (1) (b) read with Sec. 151 of the Code of Civil Procedure,1908 (for short the Code) praying for allowing the Plaintiff/the Appellant to adduce additional evidence to prove original Sale Deed No. 2983/2009 and Sale Deed No. 2984/2009 was rejected on the ground that the Plaintiff/Appellant was trying to patch up the lacuna in adducing the evidence during the trial which resulted in dismissal of the suit. It was also observed by the First Appellate Court that the Plaintiff side has failed to show any ground to allow the petition under Order XLI Rule 27 of the Code.

(3.) The learned counsel for the Petitioner has submitted that the First Appellate Court while passing the impugned order failed to take into consideration the stage at which an application under Order XLI Rule 27 (1) (b) of the Code is required to be taken up for consideration. He has referred to the judgment of the Supreme Court rendered in the case of Union of India Vs. Ibrahim Uddin reported in (2012) 8 SCC 148 and more particularly to paragraph Nos.49 to 52, wherein the Supreme Court has observed that an application for taking additional evidence on record at the appellate stage is to be heard at the time of final hearing of the appeal at the stage after appreciating the evidence on record the Court reaches the conclusion that the additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. The learned counsel for the Petitioner has submitted that in the instant case even prior to the hearing of the appeal, the application for taking additional evidence was taken and on the ground that the Plaintiff/Appellant was trying to fill up the lacuna i.e. by producing the original of the Deeds of Sale, the said application was rejected.