LAKSHMAN PURBEY Vs. JIBACHH PURVEY AND ORS.

JUDGEMENT

(1.) HEARD Mr. Anil Kumar Jha, learned senior counsel appearing on behalf of the petitioner, in spite of service of notice, the private respondents have not appeared. The petitioner is aggrieved by an order dated 19.11.2010 passed in T.A. No. 100 of 2007 by learned Additional District Judge, F.T.C. -III, Madhubani whereby and whereunder a petition filed by the appellant -the State of Bihar under Order 41, Rule 27 of the Code of Civil Procedure (in short 'the Code') came to be allowed permitting them to produce additional evidence at the stage of appeal.

(2.) MY attention has been drawn straightway to the impugned order so as to contend that while allowing the application under Order 41, Rule 27 of the Code, the court below has failed to consider and discuss as to how the documents, sought to be produced by way of additional evidence by the appellants/respondent Nos. 7 and 8, were relevant for enabling the court to pronounce its judgment. Learned senior counsel has submitted that the documents, sought to be brought on record, have been mentioned in the impugned order but the appellate court below, with reference to contents of such documents, has not discussed or indicated as to how these documents were going to tilt the final adjudication in one way or the other. He submits that though the appellate court may, if it feels at the time of final hearing of the appeal that certain documents are required for pronouncement of judgment, permit a party to produce such documents or take such documents into evidence but, before exercising such discretion, there must be application of mind by the appellate court, which must be reflected in the order permitting a party to produce such additional evidence.

(3.) LEARNED senior counsel has placed reliance upon two Supreme Court judgments in support of his submission reported in : AIR 1976 SC 1053 (Natha Singh & Ors. v. The Financial Commissioner Taxation, Punjab & Ors.) and : AIR 1976 SC 2403 (The Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H. Narayanaiah). He has also placed reliance upon a judgment of Privy Council reported in : AIR 1931 PC 143 (Parsotim v. Lal Mohar) to contend that the appellate court must record reasons while exercising its power under Order 41, Rule 27 of the Code. He has further placed reliance upon another judgment of the Supreme Court reported in : 2013 (1) PLJR (SC) 48 (Union of India v. Ibrahimuddin & Anr.) to contend that power under Order 41, Rule 27 of the Code cannot be exercised by the appellate court without appreciating the evidence available on record. An order for production of additional evidence, according to him, can be passed only after the appellate court has considered and appreciated the evidence already on record and come to a conclusion that it requires certain documents to be produced for pronouncement of judgment.