IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18439 of 2011 Smt.Shanti Devi & Anr Versus Sadhu Pandit & Anr ---------------------------------- O R D E R 07. 14.12.2011. 1. I have heard the learned counsel, Mr. Ranjan Kumar Dubey on behalf of the petitioner and the leaned counsel, Mr. Chandrakant on behalf of the respondent. 2. This application has been filed by the defendant- respondent under Article 227 of the Constitution of India against the order dated 05.12.2008 passed by Fast Track Court No.3, Siwan in title appeal No.93 of 1988 whereby the Court below allowed the petition filed by the plaintiff-appellant respondent under Order 41 Rule 27 of the Code of Civil Procedure praying therein to permit the respondent for adducing additional evidence. 3. The learned counsel for the petitioner submitted that the respondent was negligent and guilty of laches because he was knowing about the institution of title suit No.294 of 1989 in the same year but he filed the application under Order 41 Rule 27 in the year 2008 after such a long period, the learned Court below allowed the same without considering this laches and delay. 4. On the other hand, the learned counsel for the respondent submitted that the title appeal has been filed in the year 1988, i.e., title appeal No.93 of 1988. The subsequent to the appeal, the title suit No.294 of 1989 has been filed by the - 2 - petitioner. The present respondent filed the application under Order 41 Rule 27 C.P.C. seeking permission to adduce the certified copy of the plaint of title suit No.294 of 1989 as additional evidence. Since the plaint has been filed by the present petitioner, it is an admitted document and it is necessary for just decision of the controversy between the parties and moreover this plaint came into existence during the pendency of the appeal. 5. Considering these facts, the learned Court below has rightly exercised discretionary jurisdiction vested in it by law. Therefore, the impugned order cannot be interfered with. 6. Admittedly, in this case the title appeal has been filed in the year 1988. The plaint sought to be adduced as additional evidence is of the year 1989, i.e., during the pendency of the appeal. It is well settled principle of law that the Court must consider the subsequent event either regarding the change of fact or change of law. Only because there is delay, the said application cannot be rejected. The Court has to consider the pendency of the appeal also. The appeal has been filed in the year 1988 but till the filing of this application under Order 41 Rule 27 C.P.C., the appeal was pending for final decision. This delay was never caused because of the filing of this application. In such circumstances, in my opinion, only the application has been filed after long period, the application cannot be rejected. 7. In A.I.R. 1963 Supreme Court 1526 K. - 3 - Venkatramiah Vs. A. Seetharama Reddy& Ors., the five Judges Bench of the Apex Court at paragraph 10 and 13 has held as follows : “(10) Section 107 of the Code of Civil Procedure empowers the appellate court “to take additional evidence or to require such evidence to be taken,” “subject to such conditions and limitations as may be prescribed.” Rule 27 of O. 41 of the Code of Civil Procedure prescribes the conditions and limitations in the matter. The rule first lays down that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. It then proceeds to lay down two classes of cases where the appellate court may allow additional evidence to be produced. One class is where the Court appealed from has refused to admit evidence which ought to have been admitted. The other class is whether the appellate court requires such additional evidence for itself either to enable it to pronounce judgment or for any other substantial cause. The second class of the rule requires that when additional evidence is allowed to be produced by an appellate Court the Court shall record the reason for its admission. (13) It is very much to be desired that the courts of appeal should not overlook the provisions of cl. (2) of the Rule and should record their reasons for admitting additional evidence. We are not prepared, however, to accept the contention of the appellant that the omission to record the reason vitiates the admission of the evidence. Clearly, the object of the provision is to keep a clear record of what weighed with the appellate court in allowing the additional evidence to be produced- whether this was done on the ground (i) that the court appealed from had refused to admit evidence which ought to have been admitted, or (ii) it allowed it because it required it to enable it to pronounce judgment in the appeal or (iii) it allowed this for any other substantial cause. Where a further appeal lies from the decision of the appellate court such recording of the reasons is necessary and useful also to the court of further appeal for deciding whether the discretion under the rule has been judicially exercised by the court below. The omission to record the reason must therefore be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory. For, it does not seem reasonable to think that the legislature intended that even though in the circumstances of a particular case it could be definitely ascertained from the record why the appellate court allowed additional evidence and it is clear that the power was properly exercised within the limitation imposed by the first clause of the Rule all that should be set at naught merely because the provision in the second clause was not complied with. It may be mentioned that as early as 1885, when considering a similar provision in the corresponding section of the Code of 1882, viz., S. 586, the High Court of Calcutta held that this provision for recording reasons is merely directory and not imperative, Gopal Singh v. Jhakri Rai, ILR 12 Cal 37. We are aware of no case in which the correctness of this view has been doubted. It is worth noticing - 4 - that when the 1908 Code was framed and O. 41 R. 27 took the place of the old S. 568, the legislature was content to leave the provision as it was and did not think it necessary to say anything to make the requirement of recording reasons imperative. It is true that the word “shall” is used in R. 27(2), but that by itself does not make it mandatory. We are therefore of opinion that the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission.” 8. This decision of the Apex Court has again been reiterated in 2008 (8) S.C.C. 511 North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das. 9. Therefore, in view of the above settled principle of law laid down by the Apex Court, the Court has the jurisdiction to allow application under Order 41 Rule 27 of the Code of Civil Procedure, if the documents are necessary for pronouncement the Judgment in more satisfactory manner. Here, admittedly, this document came into existence during the pendency of the appeal. 10. Considering these aspects of the matter, the learned Court below has, therefore, rightly exercised a discretionary jurisdiction. The decision arrived at by the Court below is supported by the decision of the Apex Court referred to above. I, therefore, find that in exercise of supervisory jurisdiction under Article 227 of the Constitution of India, the impugned order cannot be interfered with, particularly, when the documents is admitted document. 11. In the result, I find no merit in this application. Thus, it is dismissed. Patna High Court, Patna The 14th day of December, 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.) - 5 -