IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15819 of 2011 Akhouri Niranjan Prasad & Ors Versus The State Of Bihar & Anr ---------------------------------- O R D E R 00. 13.10.2011. I have heard Mr. Akashdeep, the learned counsel on behalf of the petitioner and Mr. Chakradhari Sharan Singh, A.A.G.-6 on behalf of the State of Bihar-respondent. (2) This writ application under Article 227 of the Constitution of India has been filed by the petitioner challenging the order dated 24.06.2011 passed in Title Appeal No.76 of 2009 whereby the learned Addl. District & Sessions Judge, Fast Track Court 3, Gaya rejected the application of the petitioners filed under Order 41 Rule 27 C.P.C. (3) The learned counsel for the petitioner submitted that due to mistake of the Advocate of the petitioner, the documents which were filed along with list of documents could not be marked exhibit in the case and only two documents were marked as exhibit. The Advocate of the petitioner was preparing for competitive examination for the post of District & Sessions Judge and subsequently he was qualified in the year 2001 and joined as such in the State of Jharkhand. However, no information was given to the plaintiff. When the plaintiffs came to know about the said fact then contacted his Advocate clerk and then learnt that the suit was dismissed on 19.02.2002. In the Judgment, the - 2 - trial Court categorically mentioned that the learned counsel Mr. Vishnukant Sahay was heard on behalf of the plaintiff although he was appointed as District Judge in 2001 itself. The plaintiff then filed Title Appeal No.14 of 2002 against the Judgment of the trial Court. When the appellant found that some documents were not marked exhibits because of mistake of Advocate, they filed application under Order 41 Rule 27 C.P.C. on 10.12.2010 but the learned Court below by the impugned order rejected the prayer. The learned counsel further submitted that the said documents are necessary in the suit for just decision and interest of justice because the appeal has been dismissed on the ground of insufficiency of evidence. In such view of the matter, the learned lower appellate court has wrongly not exercised a jurisdiction vested in it by law and it will occasion grave injustice to the plaintiff. (4) On the other hand, the learned counsel appearing on behalf f the respondent submitted that Order 41 Rule 27 of the Code of Civil Procedure is not meant to fill up the lacunae on the ground of mistake of Advocate. In other words, because of mistake of Advocate, the Court cannot allow the appellant to adduce additional evidence. (5) Order 41 Rule 27 reads as follows : “Rule 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 - 3 - evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within the 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)) (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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” (6) From the above provision, it is clear that the general principle is that the appellate Court should not travel outside the record of the lower Court and cannot take any evidence in appeal. This general principle is subject to the 3 clauses mentioned in the said provision. In such circumstances, the discretion of Court under this Rule is only a judicial discretion circumscribed by the limitation specified in this rule and not an arbitrary one. The parties are not entitled as a matter of right to the admission of such additional evidence. Therefore, from the provision, it is clear that because of mistake of the Advocate, the party could not adduce evidence is not a ground for permitting a party to adduce additional evidence in appeal. Moreover the appeal is of the year 2002 but after 8 years, this application under Order 41 Rule 27 has been filed by the appellant. (7) In A.I.R. 1965 Supreme Court 1008 (Municipal Corporation for Greater Bombay Vs. Lala Pancham), the Apex Court has held that though the appellate Court has the power to allow a document to be produced and witnesses to be examined under - 4 - Order 41 Rule 27 C.P.C., the requirement of the said Court must be limited to those case where it found it necessary to obtain such evidence for enabling it to pronounce the Judgment. This provision did 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 purposes of pronouncement of Judgment in a particular way. (8) The aforesaid decision of the Apex Court has been reiterated again in 2006 (9) Supreme Court cases 772 State of Gujarat and Anr. Vs. Mahendra Kumar Parshotam Bhai Desai. In that case it appears that after 8 years of dismissal of suit, the application was filed for adducing additional evidence before the appellate court. In the present case also, it appears that there was sufficient opportunity to the plaintiff-petitioner to adduce / to get documents exhibited in the trial Court. The appeal was filed in 2002 but after 8 years of filing the appeal, the present application under Order 41 Rule 27 C.P.C. has been filed. The explanation given by the petitioner is not acceptable. Admittedly, the learned counsel who was appearing was appointed as additional District Judge. It has been mentioned that he was selected in 2001, nowhere it is mentioned when he joined in the Judiciary. In the Judgment, according to the petitioner himself, it has been recorded that - 5 - the trial Court heard the learned counsel for the petitioner and mentioned the name of the Advocate. Therefore, this is a disputed question of fact which cannot be decided in this writ application. Moreover, as has been stated above, there was sufficient opportunity to get the documents marked in the trial Court. In such view of the matter, the recording in the Judgment will prevail and the explanation given by the petitioner is not acceptable. (9) From perusal of the impugned order, it appears that the learned Court below considered the jurisdiction of the Court and then found that on the grounds raised by the petitioner, the appellate court has no jurisdiction to allow for adducing additional evidence. I, therefore, find that the learned Court below has exercised a judicial discretion. It is well settled principle of law that on the ground of sympathy, supervisory jurisdiction cannot be exercised. (10) In view of my above discussion, I find no reason to interfere with the impugned order. Accordingly this writ application is dismissed. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 13thday of October, 2011 Sanjeev/A.F.R.