IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 2978 of 2010 1. SHAHAB TANWEER SHABBU @ SAHAB TANWEER @ SABU S/O SYED SHARFUDDIN AHMAD R/O MILKI MOHALLA,P.S.ARRAH TOWN,DISTT- BHOJPUR Versus 1. BIMAL PRATAP SINHA @ VIMAL PRATAP SINHA S/O BRAJENDRA PRASAD SINHA R/O RAMNA ROAD,P.S.ARRAH TOWN,DISTT-BHOJPUR *** For the petitioner : Mr Md Ataul Haque, Advocate For the respondent : Mr Akhauri Kamal Kishore Sahay, Advocate *** 2 23.03.2010 The petitioner challenges order dated 28.10.2009, as contained in Annexure-1, passed by the learned Additional District Judge II, Bhojpur in Title Appeal No 73 of 2009. By the said order, the petitioner’s application for additional evidence at the appellate stage in terms of Order 41, Rule 27 of CPC has been rejected. Learned counsel for the petitioner, who is the defendant in the suit and against whose eviction appeal is filed, submits that the petitioner’s defence was that as between him and the plaintiff- respondent, there was an agreement whereby the defendant- petitioner had advanced Rs 80,000/- on an agreement that monthly rent would be deducted therefrom and, as such, there could be no question of default. This agreement, in original, was filed in Court below and kept in Court’s custody. When a witness for the defence was produced who wanted to prove the said agreement, the agreement could not be traced with the lower Court and, as 2 such, the defendant-petitioner, who is the appellant, asked the appellate Court to call for the Photostat copy and mark it as exhibit as additional evidence at appellate stage. Having perused the impugned order, in my view, these statements and submissions are half truth. The other half of the story is recorded in the impugned order. It clearly mentions that from the record of trial Court, it is clear that the original agreement not having been found, the Photostat copy being available on record, defendant-petitioner was given adequate opportunity by the trial Court to lead that as secondary evidence with explanation that the original has been lost by the Court which the defendant-petitioner refused to do inspite of several opportunities being granted. This being uncontroverted as well, the prayer of the petitioner was rightly rejected in view of the provisions of Order 41, Rule 27 of CPC which in terms (Rule 27 (1) (aa) provides that additional evidence may be allowed to be led at appellate stage where Court is satisfied that the applicant, with due diligence, could not get the same before the trial Court. The facts here are clearly to the contrary. This application merits no consideration and is dismissed accordingly. M.E.H./ (Navaniti Prasad Singh)