IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13327 of 2011 Arjun Yadav & Ors Versus Ganesh Mahto & Ors ---------------------------------- 12. 14.12.2011. Heard the learned counsel for the petitioner. The petitioners have filed this application under Article 227 of the Constitution of India against the order dated 03.02.2007 passed by Addl. District Judge, Fast Track Court No.V, Aurangabad in title appeal No.66 of 2003/ 31 of 2005 whereby the application filed by the petitioner under Order 41 Rule 27 C.P.C. has been rejected by the lower appellate Court. The learned counsel for the petitioner submitted that the defendant have denied that the settlement was made by the Tekari estate in favour of the plaintiff. Subsequently, after dismissal of the suit, the plaintiff- appellant came to know that the respondents have executed sale deeds with respect to some part of the suit property and in the said deeds, they have admitted that the property was settled by Tekari estate in favour of the plaintiff and, therefore, the plaintiff-appellant filed the application under Order 41 Rule 27 C.P.C. which has been illegally rejected by the Court below. From perusal of the impugned order, it appears that the learned Court below considered the fact that the sale deeds were obtained earlier but those documents were not filed. The learned Court below also found that the - 2 - appellant’s applications does not disclose his due diligence for the production of aforesaid sale deeds by him or them at the time when the decree appeal was passed. In the case of Municipal Corporation for Greater Bomay Vs. Lal Pancham of Bombay and Ors. A.I.R. 1965 page 1008, the Five Judges Bench of the Hon’ble Apex Court has held that no doubt under Order 41 Rule 27, the High Court has the power to allow a document to be produced and a witness to be examined but the requirement of the High Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce Judgment. This provision does not entitle the High Court to let in fresh evidence in the appellate stage where even without such evidence, it can pronounce Judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing Judgment in a particular way. It appears that in that case, the High Court was the appellate Court. In 2008 (3) S.C.C. 120 Basayya I. Mathad Vs. Rudraga S. Matthad, the Apex Court has held that the parties are not entitled to produce additional evidence as a matter of right. The additional evidence can be permitted to be adduced only if conditions mentioned under Order 41 Rule 27 is satisfied. In view of the above facts and circumstances of the case, it appears that law is well settled that the application under Order 41 Rule 27 of the Code of Civil - 3 - Procedure has to be disposed of on the basis of the facts of each case and no straitjacket formula can be made as to under which circumstances, it should be allowed and under which circumstances, it should be rejected. In the present case at our hand, admittedly the petitioners filed the application on the ground that the defendant-respondents in the sale deeds executed by them admitted the fact that Tekari Raj had settled the property in favour of the plaintiff. In such view of the matter, it cannot be said that in absence of the said documents, no Judgment can be pronounced by the trial Court. According to the appellate Court, the petitioners have not shown any due diligence for producing the documents at an early stage. In such circumstances, in my opinion, in supervisory jurisdiction, the impugned order cannot be interfered with. Thus, this writ application is dismissed. Sanjeev/- (Mungeshwar Sahoo,J.)