PURNA CHANDRA MAHATO Vs. UMASHANKAR MAHATO

JUDGEMENT

(1.) The present writ petition has been filed for quashing the order dtd. 27/11/2019 passed by the learned District and Additional Sessions Judge-I, Ghatshila in Civil Appeal No. 42 of 2018 whereby an application filed by the petitioners under Sec. 107(1)(d) read with Order XLI Rule 27 of the CPC for adducing additional evidence at the appellate stage has been rejected.

(2.) Learned counsel for the petitioners submits that Partition Suit No. 06 of 2009 was preferred by the petitioners' mother against the defendants claiming her share over the suit land. During pendency of the said suit, the petitioners' mother i.e. the original plaintiff died and thereafter the petitioners were substituted as the plaintiffs. The said suit was dismissed vide judgment dtd. 27/4/2018 passed by the Civil Judge (Sr. Div.)-I, Gahtshila. Aggrieved thereby, the petitioners preferred Civil Appeal No. 42 of 2018 before the Court of the learned District Judge-I, Ghatshila. During pendency of the said appeal, the petitioners filed two applications dtd. 29/5/2019 and 21/8/2019 under Sec. 107(1)(d) read with Order XLI Rule 27 of the CPC claiming that the said documents were not available during pendency of the said suit and they luckily traced out the same only after death of the original plaintiff. The respondents objected the said applications filed by the petitioners and ultimately the same were dismissed vide order dtd. 27/11/2019. It is further submitted that the learned Court below failed to appreciate that the petitioners had sufficient reason for not adducing the said documents as evidence during pendency of the said suit. Only after death of the original plaintiff i.e. the mother of the petitioners, they found the said documents, which were kept in a mud pot ('Handi') and immediately thereafter the applications were filed by them before the appellate Court under Sec. 107(1)(d) read with Order XLI Rule 27 of the CPC to bring those documents on record.

(3.) Heard learned counsel for the petitioners and perused the relevant materials available on record. To appreciate the said contention of learned counsel for the petitioners, it would be appropriate to go through the provisions of Order XLI Rule 27 of the CPC which read as under: