IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11189 of 2011 Bhola Sah & Ors Versus Ajo Sah & Ors ---------------------------------- O R D E R 04. 01.12.2011. 1. Heard the learned counsel, Mr. Ujjawal Kumar Sinha on behalf of the petitioner. In spite of service of notice, none of the respondents have appeared. 2. The plaintiffs-appellants have filed this application under Article 227 of the Constitution of India against the order dated 17.05.2011 passed by District Judge, Khagaria in title appeal No.11 of 2009 whereby the Court below rejected the application of the petitioner filed under Order 41 Rule 27 of the Code of Civil Procedure seeking permission to adduce additional evidence. 3. It appears that the plaintiff-petitioner filed title suit No.72 of 2001 praying for partition of the suit property claiming themselves to be the descended of Ladua Sao. This case of the plaintiff was disputed by the defendant. An issue was framed regarding this dispute which was decided in favor of the defendants and the suit was dismissed. Against that Judgment and Decree, the present plaintiff- petitioner filed title appeal No.11 of 2009 and then filed the application under Order 41 Rule 27 for allowing the appellant to produce 3 sale deeds of the 1953 and 1973 as additional evidence on the ground that the ancestor of the - 2 - defendants Palat Sao had executed the registered sale deed admitting that Ramrup Sao was son of Ladua Sao who was ancestor of the plaintiff. 4. The learned counsel for the petitioner submitted that the sale deed were executed in the year 1953 and the plaintiff had not even born at that time, therefore, the sale deed was not within their knowledge and in spite of due diligence, they could not have filed the said before the trial Court. The learned Court below without considering this reasoning rejected the application. The learned counsel further submitted that these documents are very essential for the purpose of real determination of the question between the parties but the learned appellate Court has failed to exercise a jurisdiction vested in it by law. 5. In 2008 (8) 511 North Eastern Railway Administration Gorakhpur Vs. Bhagwan Das, the Apex Court has held that the question whether looking into the documents sought to be filed as additional evidence would be necessary to pronounce Judgment in a more satisfactory manner has to be considered by the Court at the time of hearing of the appeal on merits. The appellate Court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce Judgment but also for any other substantial cause. 6. In the case of K. Venkatramaia Vs. Seetharama Reddy A.I.R. 1963 (SC) 1526, a - 3 - Constitutional Bench of the Apex Court has also explained the same position of law which has been relied upon by the Apex Court in the case of North Eastern Railway Administration (Supra). 7. Here, admittedly, the sale deeds are executed by different persons in favour of different persons and it was not expected from the plaintiff that it was within their knowledge. When they came to learn about the existence of the sale deeds, they obtained certified copy and filed the same. What will be the relevancy of the sale deeds on merit should have been considered at the time of final hearing of the appeal but while considering application under Order 41 Rule 27, the lower appellate Court rejected the application on the ground that the sale deeds are not relevant. 8. In view of the law laid down by the Apex Court referred to above, in my opinion, the lower appellate Court has not exercised a jurisdiction vested in it by law, therefore, the impugned order is set aside and this writ application is allowed. The application filed by the petitioner for adducing additional evidence thus stands allowed. Patna High Court, Patna The 1stday of December, 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.)