IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1610 of 2008 RAMESHWAR PASWAN & ORS Versus RADHEY SINGH & ORS ----------- 2 22/9/2008 Heard counsel for the petitioners. In the opinion of this Court the impugned order does not suffer from any jurisdictional error. The submission of the counsel for the petitioner that there was no explanation whatsoever as with regard to discovery of the document in question which has been taken by way of additional evidence in exercise of power under order 41 Rule 27 of the Code of Civil Procedure, is also not correct, in as much as, from the following averments in paragraph 5 of the application filed by the defendant- appellate-opposite party in this court below (Annexure-1) it would be found that there was sufficient explanation in as much as, it was stated therein “That the applicant/defendant was in search of the deed of sale under which Karmu Manjhi, ancestor of the respondents/plaintiffs had made alienation and after great search they came to know that Karmu Manjhi did executer registered deed of sale dated 6.1.1967 in favour of Smt. Gulab Devi wife of Babu Jawahar Singh of village-Imamganj, P.S.- Imamganj District Gaya and he 2 applied for a certified copy of the aforesaid sale deed which was made available on 5.1.2008 which much after judgment and much after the filing of Memo of appeal and as such it could not be produced in the lower court.” That apart, the court below has gone into that aspect as with regard to credibility as also requirement of the document and has found that the document in question was absolutely necessary to unfold the nucleus of the case, in as much as, claim of the plaintiff-respondent- petitioner with regard to 64-1/2 decimals of land could be better understood with the help of the document in question and his case that certain portion were acquired by the Electricity Board and other part was utilized in the construction of village road, leaving nothing with the defendant-appellant opposite party was capable of being answered with the help of the document in question taken as additional evidence showing that the same was sold on 6.1.1967, leaving only 17 decimals of land, regarding which the plaintiff had already made an admission in the plaint 3 and also in the evidence that they were still in possession of the same. That being so when the Court below has found this document to be very relevant to decide the issues involved in the appeal its finding that admitting this document on record of appeal by way of additional evidence will enable the appellate Court to pronounce judgment cannot be interfered in the revisional jurisdiction of this Court under section 115 of the Code of Civil Procedure. Reliance placed by the counsel of the petitioners on judgments of Apex Court, namely, in the case of „K.R.Mohan Reddy Vs. M/S Net Work Inc. Rep.‟ reported in 2008(1) BBCJ 277 (SC) is wholly misplaced and cannot be made applicable in the facts and circumstances of this case for a simple reason that in the aforesaid case before the Apex Court, the proposed additional evidence was taken on records without affording opportunity of hearing to the either parties. It was in this context in paragraph 22, the Apex Court had rather held that the appellate Court 4 should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial court, but it will be different issue if the Court itself required the evidence to do complete justice between the parties. Thus in the opinion of this Court, the ratio of K.R. Mohan Reddy (supra) instead of supporting the petitioner goes against him. Coming to the facts of other decision of the Apex Court in the case of „Basayya I. Mathad Vs. Rudrayya S. Mathad & Ors.‟ Reported in 2008(2)BBCJ 173 (SC), relied by the counsel for the petitioner, this Court would find that as a matter of fact in that case it was found by the Apex Court that certain documents were taken into consideration by applying principles of Order 41 Rule 27 of the Code of Civil Procedure by the High Court at the time of disposal of a Second Appeal but without formulating substantial question of law and only such practice was deprecated by the Apex Court holding same to be in teeth of the safeguard, and procedure 5 envisaged under order 41 Rule 27 C.P.C. Apparently, such is not the facts of the present case and therefore the ratio of Basayya A. Mathad (supra) cannot be applicable herein. That being so, this Court does not find any error in the impugned order. Accordingly, this application, being wholly misconceived, is hereby dismissed. ( Mihir Kumar Jha, J. ) Abhay Kumar