1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR Smt. Kamla & Ors. V/s. Jamwanti & Anr. (S.B. Civil Writ Petition No.10677/2010) S.B. Civil Writ Petition under Articles 226 and 227 of the Constitution of India Date of Order :: August 6, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr. Ranjeesh Gupta for the petitioners. The petitioners have challenged the order dated 20.07.2010 passed by the Additional District & Sessions Judge (Fast Track) No.1, Karauli, District Karauli, whereby the learned Judge has dismissed the application filed by the petitioner under Order 41 Rule 27 CPC for taking the registered sale-deed dated 18.08.1980 as an additional evidence at the appellate stage. Hence, this petition before this Court. The brief facts of the case are that Gopi Chand, the husband of petitioner No.1 purchased the property in dispute through a registed sale-deed from Hazari Lal and 2 Rambax. The plaintiff/non-petitioner filed a suit for injunction against the brother of Gopi Chand, who died during the course of trial. The defendants submitted written statement and submitted that they are having right, title and possession over the property in dispute. The learned trial Court partly allowed the suit. The defendant- petitioners preferred a civil regular appeal. After service, the plaintiff had also preferred cross-objections. The petitioners had filed an application under Order 41 Rule 27 CPC for taking the registered sale-deed dated 18.08.1980 as an additional evidence on record. The learned trial Court vide order dated 20.07.2010 dismissed the application. Hence, this petition before this Court. The learned counsel for the petitioners has contended that since the registered sale-deed was relevant for resolving the dispute, the application filed under Order 41 Rule 27 CPC should have been allowed. Since the learned Judge has dismissed the said application, a grave injustice has been caused to the petitioners. This Court has specifically asked the learned counsel for the petitioners whether the document dated 3 18.08.1980 was readily available to the petitioners during the course of trial, the learned counsel admitted the fact that even during the course of trial, a photostat copy of the sale-deed was submitted before the learned trial Court. However, according to the learned counsel, the original was not available with the petitioners. Hence, they were prevented from submitting the same before the learned trial Court. Order 41 Rule 27 CPC reads as under : O. 41 R. 27 : Production of additional evidence in Appellate Court : (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But if - (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or 4 (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission. According to Order 41 Rule 27(aa), in case a document is within the knowledge or could have been procured by the parties, after exercise of due diligence, then the additional document should not be taken as additional evidence. Since the photocopy of the document was readily available and existence of the document was well within the knowledge of the petitioners, it is not the case of the petitioners that even after the exercise of of due diligence, the registered sale-deed could not be discovered by them. Even the learned Judge has noticed the fact that although the petitioners claimed that husband of the petitioner No.1 had died in the year 1997, it is not a case of the petitioners that the said document was discovered only after his death. Since they have not 5 exercised due diligence during the course of trial, they cannot be permitted to fill in the lacunae at the appellate stage. In the case of Municipal Corporation for Greater Bombay Vs. Lala Pancham of Bombay & Ors. [AIR 1965 SC 1008] , the Hon'ble Supreme Court has observed that though the appellate court has the power to allow a document to be produced and a witness to be examined under Order 41 Rule 27 CPC, the requirement of the said court must to be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision do not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncement of judgment in a particular way. This observation of the Hon'ble Supreme Court has been approved and relied upon by the Apex Court in the case of State of Gujarat & Anr. Vs. Mahendra Kumar Parshottam Bai Desai (Dead) by LRs [(2006) 9 SCC 772. It has also been the consistent issue of the Hon'ble 6 Supreme Court as reflected in catena of cases that under Order 41 Rule 27 CPC cannot be invoked by a party so as to fill in the lacunae left by the party during the trial. In the present case, since the petitioner had ample opportunities to submit the copy of the registry, he cannot invoke the power to fill in the gaps left by him in the trial. A bare perusal of the impugned order clearly reveals that despite the fact that appeal was submitted in the year 2007, an application under Order 41 Rule 27 was not filed till 2009 i.e., after an inordinate delay of two years. The fact that the petitioners maintained studied silence over the document and filed the application only after two years of filing of the appeal, clearly shows that they are not interested in filing the said document for the sake of resolving the controversy. Therefore, in fact, more interested in prolonging the appeal by filing the application under Order 41 Rule 27 C.P.C. For the reasons stated above, this petition is devoid of any merit; it is, hereby, dismissed. (R.S.CHAUHAN)J. A.Asopa/-