KARUNA CHATTERJEE AND PRITY CHOKARBORTY Vs. RAKESH KUMAR

JUDGEMENT

(1.) THIS application under Article 227 of the Constitution of India by the defendants -petitioners is directed against the order dated 03.3.2008 passed by Addl. District Judge -III, Jamshedpur in Eviction Appeal No. 09 of 2003 whereby he has rejected the petition filed by the petitioners under Order XLI, Rule 27 of the Code of Civil Procedure.

(2.) THE facts of the case lie in a narrow compass: The plaintiff -respondents filed Eviction Suit No. 32 of 1994 for a decree for eviction of the defendants from the suit premises. The plaintiffs case is that he purchased the suit property by virtue of a registered sale deed dated 12.7.1993 and became the owner of the said property. The defendants -petitioners contested the suit by filing written statement denying and disputing the relationship of landlord and tenant and claimed title in themselves. The defendants case is that a separate suit was filed by them being Title Suit No. 49 of 1994 against the plaintiff for declaration that the alleged sale deed dated 12.7.1993 is null and void. It appears that the eviction suit filed by the plaintiff -respondent was decreed in terms of judgment dated 08.5.1997. Aggrieved by the said judgment and decree, defendants -petitioners filed eviction appeal being Eviction Appeal No. 09 of 2003. During the pendency of the Eviction Appeal, the aforementioned Title Suit No. 49 of 1994 was dismissed vide judgment dated 12.6.1998. Petitioners, aggrieved by the said judgment, preferred Title Appeal No. 49 of 2003 which was eventually allowed by the appellate Court in terms of judgment dated 08.10.2007 and the sale deed dated 12.7.1993 has been declared to be null and void. Under the aforesaid circumstances, the petitioners filed application under Order XLI, Rule 27 C.P.C in Eviction Appeal No. 09 of 2003 for adducing the certified copy of the judgment and decree passed in Title Appeal No. 49 of 2003 by way of addition evidence. The Court of Appeal below rejected the said application on the ground, inter alia, that in the eviction suit, the defence of the defendants -petitioners was struck off and consequently, the defendants had not adduced any evidence either oral or documentary, before the trial Court. According to the Court of Appeal below, at an appellate stage, the defendants -appellants cannot be allowed to adduce judgment and decree passed in Title Appeal No. 49 of 2003 as an additional evidence.

(3.) THE facts not in dispute are that the plaintiff -respondents alleged to have purchased the suit premises from the petitioners. The alleged sale deed was challenged by the petitioners by filing Title Suit No. 49 of 1994. While the Eviction Appeal was pending, the suit of the petitioners was eventually decreed in Title Appeal No. 49 of 2003 and the sale deed, on the basis of which the plaintiff -respondent claimed ownership, was declared null and void. After the said judgment and decree, the petitioners filed application for adducing the said judgment and decree as an additional evidence. The Court of Appeal below rejected the application holding that the provisions contained in Order XLI, Rule 27 CPC is not applicable and, therefore, the petitioners -appellants cannot be allowed to adduce the said judgment and decree by way of additional evidence. Order XLI, Rule 27 CPC reads as under: Order 41, Rule 27. Production of additional evidence in Appellate Court. - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -