TAPAS CHOUDHARY @ TAPAS KUMAR CHOUDHARY Vs. KAUSHIK CHAKROBORTY

JUDGEMENT

(1.) HEARD the learned counsel for the parties.

(2.) THE petitioner, by way of filing the present writ petition under Article 227 of the Constitution of India, has prayed for quashing and set aside the order dated 21.5.2012 passed in Title (Eviction) Appeal No. 10/12 by the learned court of Principal District Judge, Dhanbad, whereby the learned court has dismissed the petition filed by the petitioner under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure. 2008(3) JCR 454 and submitted that the facts and circumstances of the present case squarely covered by the said judgments and therefore, the order passed by the learned court below with regard to rejection of application for the production of additional evidence may be quashed and set aside and the present petitioner may be given an opportunity to produce the additional evidence at the appellate stage. 4. As against this, the learned counsel for the respondents tired to justify the order passed by the learned court below and submitted that the present petitioner wants to delay the proceedings and therefore, such an application has been made before the appellate stage. It is further submitted that the present petitioner has been substituted in the year 2009 in Title Eviction suit and therefore, there was sufficient opportunity available with them to produce the relevant evidence before the trial court. It is further submitted that the father of the petitioner has produced Ext.5 as well as other documents before the trial court and he could not produce the relevant documents if possessed by him at the time of trial before issues were framed. But no such documents were produced by him and therefore now it is not permissible to produce such documents at the appellate stage. According to the learned counsel for the respondents, the court below after careful consideration of the issues involved in the matter rejected the application filed by the petitioner regarding production of the additional evidence at the appellate stage. It is lastly submitted that the present petition has no merit, and therefore, it may be rejected. 2008(3) JCR 454. Para 8 and 9 of the said judgment read as under:

(3.) In the instant case, since the beginning, the defendants seriously disputed the claim of ownership of the suit property on the ground that the sale deed obtained by the plaintiff is null and void. When the eviction appeal was pending, the suit filed by petitioner was eventually decreed in appeal and the sale deed in question was declared null and void. The judgment and decree passed in the said suit. In my opinion, can be allowed as an additional evidence for effective determination of the question raised in this suit and for doing substantial justice. The court of appeal below has not appreciated the case from this angle. The appellate court will be able to pronounce judgment and to do substantial justice only after taking into consideration the additional evidence which the petitioner sought to adduce, I.e. judgment and decree passed in appeal wherein the sale deed on the basis of which the plaintiff -respondent claims title and filed eviction suit, was declared null and void. The impugned order, therefore, cannot be sustained in law. 