S.B. Civil Writ Petition No.15366/2010 Girraj Prasad & ors. Vs. Smt. Tara Devi & ors. Dated : 20.11.2010 HON'BLE MR. MAHESH BHAGWATI,J. Mr. JP Goyal, for the petitioners. *** REPORTABLE By way of this writ petition, the petitioners have beseeched to quash and set aside the order dated 4th October, 2010 whereby the learned Additional District Judge, Gangapur City, dismissed the application of the petitioners filed under Order 41 Rule 27 of CPC for taking additional evidence on record. 2. Heard the learned counsel for the petitioners and perused the relevant material on record. 3. Learned counsel for the petitioners canvassed that the documents which they intended to bring on record, are the certified copies of plaint, written statement, the order passed by the Municipality and judgment of the Court. When the petitioners gathered knowledge about the existence of these documents he obtained the copies thereof from Bharatpur. He further canvassed that these documents are relevant for proper and just adjudication of the appeal. Hence, these documents are required to be taken on record as an additional evidence. The learned counsel also contended that the appellate court, ought -2- to have decided this application along with the appeal, but the appellate Court decided the same prior to the decision of appeal. He cited the case of M/s Eastern Equipment & Sales Ltd. Vs. ING. Yash Kumar Khanna reported in AIR 2008 SC, 2360 in support thereof. He has placed reliance on the case of Arjun Singh Vs. Kartar Singh & Others reported in AIR (38) 1951 SC, 193 also. 4. Having considered the submissions made by the learned counsel for the petitioners and carefully scanned the impugned order, it is noticed that a suit remained pending for 26 years before the trial Court. The appellant filed an application under Order 41 Rule 27 of CPC before the appellate Court during pendency of the appeal stating that earlier these documents were not in his knowledge. He came to know about their existence only when he was enquiring about them. Learned appellate Court is found to have dismissed the application on the ground that no mention of the fact was stated in the application as to how these documents were relevant for the purpose of deciding the appeal. It was also not mentioned in the application as to from whom he gathered that these documents were the part of the judicial case adjudicated 50 years back by the Court. It was also not mentioned in the application as to on which date or day he -3- came to know about the existence of these documents. 5. Order 41 Rule 27 of CPC envisages that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, but they can produce this additional evidence only under the following circumstances which are thus: (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. 6. The rule does not confer a right on the party to produce additional evidence. It is well settled that the Court is not bound under the circumstances mentioned in Rule 27 of -4- Order 41 to allow additional evidence and parties are not entitled as of right to the admission of such evidence. The matter is entirely in the discretion of the Court and this discretion has to be exercised judiciously. This provision cannot be used to fill up the lacunae in the case. 7. The petitioners were required to establish that in spite of due diligence, such evidence was not within their knowledge or could not, after the exercise of due diligence, be produced by them at the time when the decree appealed against them was passed. From the proper scanning of the impugned order, it is also revealed that the petitioners utterly failed to establish that in spite of the exercise of due diligence, these documents were not within their knowledge or they could not, after the exercise of due diligence, produce them before the Court. The petitioners also failed to establish that on which date they came to know that the said documents were the part of the judicial record. They also did not reveal as to from whom they had the discussion, who revealed the fact of the existence of these documents lying in a judicial record. The petitioners never endeavoured to produce these documents nor they could have the knowledge of the existence of these documents during 26 years of a period when the suit remained -5- pending with the trial Court. The reasons contained in the application filed under Order 41 Rule 27 of CPC are nebulous and indistinct. The petitioners' case does not fit in the provisions of Order 41 Rule 27 CPC. Hence, the permission to receive additional evidence cannot be granted where non of the conditions specified in Order 41 Rule 27 were satisfied. So far as the judgment of M/s Eastern Equipment & Sales Ltd. Vs. ING. Yash Kumar Khanna is concerned, the Hon'ble Apex Court made it clear at the end of the order that it did not go through the merits of the application under Order 41 Rule 27 of CPC. The Hon'ble Apex Court was of the view that usually the application filed under Order 41 Rule 27 of CPC should be adjudicated along with the appeal pending in the Court. In the instant case, the appellate Court dismissed the application on merits. The learned appellate Court, keeping in view the merits and demerits of the case, passed the impugned order. Hence, the judgment cited by the learned Advocate for the petitioners is not applicable to the facts of the instant case. 8. Otherwise too, the Hon'ble Apex Court, in plethora of cases has consistently held that the High Court should exercise the jurisdiction under Article 227 of the Constitution only when -6- the impugned order is found to be perverse or contrary to material or it results in manifesting injustice. The Hon'ble Apex Court has also held that the High Court should escape from interfering with the finding of facts of court below. The impugned order in the facts and circumstances of the case is not found to be perverse. E converso, it seems to be just and proper and suffers from no legal infirmity. Hence, in the light of the afore-stated reasons, the writ petition deserves to be dismissed at the threshold and the same stands dismissed accordingly. (MAHESH BHAGWATI)J. Pcg