IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6358 of 2011 1. Sri Kishun Seth @ Sri Krishna Seth Ram Das Seth Resident Of Village- Sikathi, P.S- Bhabhua, District- Bhabhua, At Present Stuarganj, P.S- Mohania, District- Kaimur, Bhabhua, Versus 1. Ram Adhar Seth Late Deo Saran Seth R/O Village- Amarpura, P.S- Mohania, District- Kaimur(Bhabhua), At Present Stuarganj Mohania, District- Kaimur 2. Chhote Lal Seth Ram Adhar Seth R/O Village- Amarpura, P.S- Mohania, District- Kaimur(Bhabhua), At Present Stuarganj Mohania, District- Kaimur 3. Madan Gopal Seth Ram Adhar Seth R/O Village- Amarpura, P.S- Mohania, District- Kaimur(Bhabhua), At Present Stuarganj Mohania, District- Kaimur O r d e r 6 8.12.2011 The petitioner has preferred this writ petition against the order dated 13.10.2009 passed by the F.T.C. IIIrd, Kaimur, Bhabua in Title Appeal No.25 of 1986/12 of 2009 by which the learned court below has passed order for production of report of the Pleader Commissioner and deposition of witnesses, including Pleader Commissioner recorded in Misc. Case No.83 of 1997. 2. The petitioner filed Title Suit No.21 of 1979 for declaration of title and recovery of possession against the defendants. The defendants-respondents too filed Title Suit No.264 of 1978 under Specific Relief Act for execution of sale deeds. Both the Title Suits were heard together and disposed of by common judgment dated 18.7.1986. Title Suit No.21/79 filed by the plaintiff-petitioner was decreed, whereas Title Suit No.264 of 1978 filed by defendants of Title Suit No.21 of 1979 was dismissed. The defendants filed two appeals against the common judgment and decree, dated 18.7.1986. Title Appeal No.25 of 1986 with which we are concerned was filed 2 against judgment and decree passed in Title Suit No.21 of 1979 and Title Appeal No.26 of 1986 was filed against common judgment and decree passed in T.S. No.264 of 1978. During the pendency of the Title Appeal, the plaintiff-petitioner filed Execution Case No.5 of 1997, whereas the defendants of Title Suit No.21 of 1997 filed Misc. Case No.83/97 under section 4 of the Partition Act. In Execution Case No.5 of 1997, the Execution Court on the prayer of the parties, appointed Pleader Commissioner to report on the location and possession of the suit house. The Pleader Commissioner, Shri Binod Kumar Choubey submitted his report on 4.6.1989, which has been marked as Ext. 1. The Pleader Commissioner along with others have been examined as witness in Misc. Case No.83 of 1997. 3. The appellants who are respondents in this case submit that the share allotted to them is located in the building in such a manner that it’s exit can be only through the share of the plaintiff and there is no other way or alternative exit. The appellants filed a petition under Order 41 Rule 27 C.P.C., which was rejected on 5.3.2009. The, appellants next filed a petition for bringing on record the report of the Pleader Commissioner and deposition of witnesses in Misc. Case No.83 of 1997. The Appellate Court allowed the application on 13.10.2007 and directed that the evidence be brought on record by way of additional evidence. 4. The plaintiff-petitioner being aggrieved has filed the instant application against the order dated 13.10.2009 of the Appellate Court. While assailing the impugned order, the plaintiff-petitioner contends that once an application under Order 41 Rule 27 CPC is rejected, the 3 second application purportedly under order 41 Rule 27 CPC would not be maintainable. The petitioner submits that Order 41 Rule 27 CPC is not meant for bringing subsequent event on record by way of additional evidence. He further submits that at the Appellate stage the Court should be loath in receiving additional evidence. In support of his submission, the plaintiff-petitioner has relied upon decisions reported in the case of N.Kamalam(Dead) & anr Vs Ayyasamy & anr., reported in (2001) 7 SCC 503 and in the case of Arjun Singh Vs Kartar Singh, reported in 1951 SC 193. 5. On the other hand, learned counsel for the respondents/defendants submits that the second petition under Order 41 Rule 27 CPC was for bringing evidence already on record in Misc. Case No.83 of 1997, which are events subsequent to filing of the appeal. The evidence could not have been brought at the stage of Title Suit, as they did not exist then. He contends that the subsequent petition for bringing the materials already on record is materially different then the earlier petition for appointment of a Pleader Commissioner which would tantamount to adducing new evidence. The respondents in support of their submissions have relied upon judgments reported in the case of Lachhman Singh (Deceased) through legal representatives & Ors Vs Hazara Singh (Deceased) through legal representatives & Ors, reported in 2008(3) PLJR (SC) 413 as well as in the case of Ramdei Devi & Ors Vs Kumar Krishna Swarendra Shahi, reported in 1993(2) PLJR 101. 7. I have heard learned counsel for the petitioner and the respondents. The first objection raised by the petitioner is that once an 4 application under Order 41 Rule 27 CPC is rejected, the subsequent application under Order 41 Rule 27 CPC would not be maintainable. The petitioner submits that earlier the application under Order 41 Rule 27 filed on behalf of the appellants for appointment of a Pleader Commissioner was rejected on 5.3.2009, thus subsequent petition, under Order 41 Rule 27 for calling the report of the Pleader Commissioner submitted in Execution case No.83 of 1997 would not be maintainable. The proposition raised by learned counsel for the petitioner is too wide to be accepted. Only subsequent petitions for same reliefs/cause would be barred under the principle of res judicata. But here in the instant case, the subsequent petition under Order 41 Rule 27 is materially different from the earlier petition under the same provision. The earlier petition filed for appointment of a Pleader Commissioner, was rejected by the Appellate Court as it wuld have amounted to creating new evidence. Furthermore, a Pleader Commissioner was already appointed which had submitted its report. It would thus appears that the respondent-appellant was trying to create and adduce fresh evidence for which it could have filed an application at the stage of trial itself. Moreover, the report of the Pleader Commissioner already exits on the record of Misc. Case No.83 of 1997 before the Executing Court itself. The second application under Order 41 Rule 27 which has been allowed by the Appellate Court is different in purpose and nature. Here, the appellant is not seeking to create any fresh evidence but to bring on record the evidence, which has subsequently come on record of Misc. Case No.83/97, after filing of the appeal. The report of the Pleader 5 Commissioner and the depositions of witnesses in Misc. Case No.83/97 are events subsequent to the filing of the appeal. The respondent-appellant had pleaded before the Appellate Court that in view of the report of the Pleader Commissioner, the share allotted to the respondents in the building is located in such a manner where it’s exit is through the share of the plaintiff. The Appellate Court considered the report of the Pleader Commissioner and deposition of witnesses necessary for disposal of the appeal and as such it allowed the application. 8. The respondents have rightly relied upon a decision of Hon’ble Apex Court in the case of Lachhman Singh (supra), wherein the Hon’ble Apex Court observed that generally the court should be loath to entertain an application for taking additional evidence at the appellate stage, but where adequate grounds have been made for the same, such application can be allowed. The Hon’ble Apex Court held that the jurisdiction of the Appellate Court is to be exercised not only when Clause (a) and (aa) of Sub-rule (1) of Rule 27 of the Code is attracted but also when such a document is required by the Appellate Court itself to pronounce judgment or for any other substantial cause. 9. The petitioner has referred to a decision in the case of Arjun Singh Vs Kartar Singh (supra). In the aforesaid case, the Hon’ble Apex Court laid down broad principles governing acceptance of additional evidence under Order 41 Rule 27. The relevant extract of paragraph 7 is quoted herein below: “7. The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitation specified in Order 41 Rule 27 Civil P.C. if the additional 6 evidence was allowed to be used contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, & the additional evidence so brought on the record will have to be ignored & the case decided as if it was non-existent. Under O.41, R.27, it is appellate Ct. that must require the evidence to enable it to pronounce judgment”. 10. There cannot be dispute to the proposition laid down by the Hon’ble Apex Court that an appellate court cannot admit evidence contrary to the principles governing reception of such evidence. It was also held by the appellate court that court can allow such additional evidence, if it requires for pronouncing judgment. 11. In the instant case, the Appellate Court found it necessary to bring evidence already on record in Misc. Case No.83 of 1997, for pronouncing judgment. Sub-rule(3) of Order 41 Rule 27 also states the additional evidence can be allowed if 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. .12. As the materials sought to be brought on record are subsequent to the filing of the appeal, the respondent/ appellant could not have brought the same earlier on the record. The decision reported in the case of N.Kamalam(Dead) & anr Vs Ayyasamy & anr., reported in (2001) 7 SCC 503 would not be of much help to the petitioner as it was rendered in different facts and circumstances of the case. In the aforesaid case, an application was moved before the High Court to allow additional evidence to be produced by examining one Govind Raju, being one of the attestors, either in the High Court 7 itself, or to direct the trial court to take his evidence and send it back to the High Court where appeal No.330 of 1983 is pending. The learned Single Judge allowed the application which was reversed in appeal by the Division Bench. The order of the Division Bench reversing the order of the learned Single Judge of the High Court was challenged in the Hon’ble Apex Court. Such application was filed when the case was pending in appeal against the judgment and decree of the trial court. The Hon’ble Apex Court observed that the court must always be cautious in allowing application seeking to adduce additional evidence particularly in the form of oral evidence made after ten years. The Hon’ble Apex Court observed that the provision of Order 41, Rule 27 are not designed to help parties to patch up weak points and make up for omissions earlier made. The fact of the instant case is different as the defendants had not sought to adduce any oral evidence but bring the report of the Pleader Commissioner as well as depositions of other witnesses recorded in Misc. Case No.83/97. All these events took place subsequent to the disposal of the suit. 12. For the reasons stated hereinabove, I do not find any infirmity in the impugned order dated 13.10.2009 of the appellate court whereby direction was issued to bring on record, the report of the Pleader Commissioner as well as deposition of witnesses recorded in Misc. Case no.83 of 1997 as additional evidence. 13. In the result, this writ petition fails and is dismissed but with no order as to costs. KHAN (S.P. Singh,J) 8