IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.661 of 2009 SHANKAR PRASAD SAH & ORS Versus THE STATE OF BIHAR & ANR ----------- 2 28.04.2009 Heard learned counsel for the petitioner and learned Government Advocate No. 4 for the Opposite Parties. This revision application has been filed by the appellant plaintiff against the order dated 30.03.2009 passed by the Additional District Judge-cum-F.T.C.-I, Madhepura in Title Appeal No. 16 of 2008. By the said order the learned appellate court has rejected the petition of appellant plaintiff filed under Order XLI, Rule 27 of the C.P.C. for taking the certified copy of register 2 of Jamabandi no. 1004 as additional evidence. After going through the impugned order, it is apparent that the learned appellate court has examined the cases of the respective parties in detail for consideration of relevancy and necessity of taking this document on record as additional evidence. Learned appellate court has found that this document was not necessary or essential for just decision by the court in the appeal and therefore the petition has been rejected. The learned counsel for the petitioner submits that once a petition under Order XLI, Rule 27 is filed and the case has been made out by the party under any of the clauses of Rule 27, the same should be allowed by the learned appellate court. He submits that in fact the case under Clause (a) of Rule 27 is made out, in that view of the fact that a petition was filed before the trial court for calling for the said - 2 - Jamabandi which was allowed by the learned trial court and summon was issued. However, since the same was not produced in court, the trial court closed the evidence of the plaintiff and a petition for recall of that order was also dismissed by the trial court. Therefore, it amounts to refusal by the trial court of taking any document in evidence which ground is covered by Clause (a) of Rule 27. Learned counsel for the petitioner has referred two judgments of the Hon’ble Supreme Court in the case of Harrington House School Vs. S.M. Ispahani & Anr. reported in 2002(4) PLJR 125 (S.C) and in the case of Jayaramdas & Sons Vs. Mirza Rafatullah Baig & Ors reported in 2004 (3) PLJR 52 (S.C.). The two judgments deal with the principles underlying consideration by the court for taking any additional evidence under Order XLI, Rule 27. Hon’ble Supreme Court has noticed that as a general principle any additional evidence is prohibited at the appellate stage by the said rule. However, exceptions have been carved out under Clause (a), (aa) and (b). Therefore, a party has to strictly make out a case for application of any of the clauses in his case. Learned Government Advocate No. 4 submits that upon his own showing the case of the plaintiff appellant does not fall under Clause (a) as there was no refusal by the trial court to take the document into evidence. It was latches on the part of the plaintiff appellant because of which he did not produce the evidence in the trial court. He submits that in the alternative the learned appellate court has considered the case of application of the plaintiff appellant under - 3 - Clause (b) and has found that there was no necessity of the said document for just decision in the case. He submits that after going through the cases of the parties in detail the learned appellate court has in fact found that the document was neither necessary nor essential for just decision by the court and therefore, the learned appellate court has rightly rejected the petition of the plaintiff appellant. He submits that learned counsel for the petitioner has also not pointed out any error of record committed by the learned appellate court while considering the respective cases of the parties as made out in the pleadings. Considering the rival submissions of learned counsels appearing for the parties and after going through the order of learned appellate court, I find that the learned appellate court has adopted the correct approach in considering the application filed by the plaintiff defendant under Order XLI, Rule 27 by examining its necessity and relevance for the purposes of just decision in the case, and after considering the cases of the parties in detail, learned appellate court has found that the document is not necessary and essential for the just decision of the case. Learned counsel for the petitioner has not pointed out any error of record committed by the learned appellate court while considering the respective cases of the parties as made out in their pleadings. In the circumstances, this Court does not find any merit in the revision application and the application is dismissed. Kundan (J. N. Singh, J.)