IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.372 of 2009 1. MAHENDRA NATH MISHRA 2. Narendranath Mishra 3. Upendra Nath Mishra, all S/o late Somnath Mishra, resident of Mauza- Panduka, P.S. Nauhata, District-Rohtas 4. Bimla Mishra, D/o late Somnath Mishra, W/o Dr. S.N. Mishra, R/o Mohalla- Gangasar, Darbhanga, P.O.+ P.S. & Distt.-Darbhanga…Appellants. Versus 1. AWADHESH MISHRA 2. Umesh Mishra, both S/o late Laxuman Mishra 3. Nirmala Kumari Mishra 4. Usha Kumari Mishra 5. Uma Kumari Mishra 6. Nilam Mishra, All Ds/o late Laxuman Mishra. All residents of village- Panduka, P.O. Tilokhar, P.S. Nauhata, Distt.-Rohtas, at present residing at Qrt No.M-18, At + P.O.Dalmianagar, P.S. Dehri, Distt.-Rohtas… Respondents ----------- For appellants: Mr. Awadhesh Kumar Pandit, Advocate For Respondent Nos.1,3 & 6: Mr. Sidhnath Harsh,Advocate --- 4. 27.1.2010 Heard learned counsel for the appellants and learned counsel for respondent Nos. 1, 3 and 6. This appeal has been filed against the order dated 1.5.2009 passed by the Additional District Judge (F.T.C.No.4), Rohtas at Sasaram in Civil Misc. Case No.3 of 2008, by which he has allowed the petition under Order 47 Rule 1, Sub- Rule(1), read with Section 151 of the Code of Civil Procedure permitting the respondents to give additional evidence, specially in support of calling for the service book of plaintiff No.2 of the original suit, which was earlier rejected by order dated 17.5.2008 on an application under Rule - 2 - 41 Rule 27 read with Section 151 C.P.C. filed in T.A. No.84 of 2002 by the respondents (appellants in the court below). The short facts relevant in the present matter are that Title Suit No.39 of 1988 was filed by the father and mother of the present appellants for declaration that the suit lands as detailed in Schedule “Kha” of the plaint were their purchased lands and the defendants had no concern whatsoever with the same and the sale deeds executed by the father of the respondents are without authority and they had no right and title over the same and, as such, the sale deeds are void. The claim of the plaintiffs in support of the same was that in the year 1942, plaintiff No.2 was in service and had saved some amount and the plaintiff No.1 wife of plaintiff No.2 had received Rs.1,000/- from her mother, which was utilized for purchasing the said lands by a registered sale deed dated 20.6.1943 and thus, the said properties were the self- acquired properties of the plaintiffs. During the trial of the suit, oral evidence was led on behalf of the plaintiffs that the plaintiff No.2 was in Government service from the year 1936 itself. The defendant-respondents - 3 - contested the suit and after adjudication, the suit was decreed in favour of the appellants by judgment and decree dated 13.9.2002. Thereafter, the defendant-respondents filed T.A. No.84 of 2002 against the said judgment and decree. Subsequently, a petition was filed under Order 41 Rule 27 read with Section 151 C.P.C. by the respondents seeking permission to lead additional evidence in support of the case and calling for the service book of the father of the respondents in the court below, namely, Somnath Mishra, original plaintiff No.2, but the said application was rejected by order dated 17.5.2008. Thereafter, the respondents applied for obtaining information under the R.T.I Act, which was obtained on 1.8.2008, which showed that original plaintiff No.2, Somnath Mishra was appointed on 11.9.1948 as P.A. to Commissioner, Agriculture Statistics, Bihar and retired on 1.2.1973. From a perusal of the said information, it was evident that original plaintiff No.2 came into Government service in the year 1948. The respondents therefore filed a review application with respect to the order dated 17.5.2008, which has been allowed by the impugned order dated 1.5.2009. - 4 - Learned counsel for the appellants submits that the review application could not have been allowed on the same facts by the learned court below when it had been earlier rejected. It is submitted that no further reasons have been assigned for allowing the review petition. Learned counsel argues that the court below had earlier come to the conclusion that the appellants before it had not been able to satisfy it, nor they had taken any step in the trial court to produce such evidence by filing any petition and the same was rejected, and further such evidence was not in their knowledge and could not be produced; and without satisfying the court on this point, they applied for calling for the service book of original plaintiff No.2, Somnath Mishra and for the said reasons, the court below held that it did not comply with the requirement of Order 41 Rule 27 C.P.C. and it was rejected. It is submitted by learned counsel that those reasonings continued to apply when the order dated 1.5.2009 on review was passed but the earlier order has been reviewed and the petitioners have been permitted to lead a fresh evidence under Order 41 Rule 27 C.P.C. It is urged by learned counsel that whatever has now - 5 - been brought on the record by the respondents before the lower appellate Court could not be considered such material as to satisfy the requirement of Section 47 Rule 1 C.P.C. In support of the aforesaid proposition, learned counsel for the appellants relies upon a decision of the Supreme Court in the case of T. Thimmaiah (Dead) BY LRS. V. Venkatachala Raju (Dead) By LRS.: (2008) 11 Supreme Court Cases 107, in paragraph No.2 of which it has been held as follows: “During the course of hearing, the learned counsel for the appellant has pointed out that a bare perusal of the order in review would reveal that it is based on a complete reappreciation of the matter on facts and the provisions of Order 47 Rule 1 of the Code of Civil Procedure which would govern an application for review, have been completely ignored. It has been submitted by the counsel that the Single Judge had, in the first judgment, examined the facts and dismissed the appeal and on a reconsideration of the same facts, had allowed the same, which was not justified. We find merit in this plea. From a bare perusal of the judgment in review, it is clear that the principles laid down under Order 47 Rule 1 CPC have been completely ignored. We accordingly allow the appeal, set aside the order in review dated 26.2.2001 and dismiss the appeal in the suit. We, however, give liberty to the respondent herein to challenge the judgment dated 16.2.1999, if so advised.” Learned counsel for the respondents, on the other hand, submits that the actual fact as to - 6 - when the original plaintiff No.2 had joined Government service and the details with regard to his service would be within his personal knowledge and in view of the provisions of the Act, it was incumbent upon him to place those facts before the court below. However, it is urged that instead of doing so, he had led false evidence in the Court below which the petitioners in the absence of documentary evidence with them could not counter before the trial court. It is submitted that the respondents were not even aware of the specific office from which the service record of the original plaintiff No.2 could be obtained, and therefore being handicapped they could not produce it at the time of the trial. However, subsequently after coming into force of the Right to Information Act, 2005, they applied for the same and could obtain information, which is extremely relevant for the just and fair decision of the case and it directly contradicts the false claim raised by the appellants before the court below regarding the fact of plaintiff No.2 being in service in the year 1936. It is contended by learned counsel that both under Order 41 Rule 27 as also under Order 47 - 7 - Rule 1 C.P.C., if new and important matter of evidence has been discovered which even after the exercise of due diligence was not within the knowledge or could not be produced by the party concerned when a decree was passed or an order was made such evidence or document should be allowed to be produced. Learned counsel submits that the information under R.T.I Act was obtained in this regard by the respondents on 1.8.2008, which is after the passing of the previous order dated 17.5.2008 and much after the decree of the suit in the year 2002. It is, thus, submitted by learned counsel that the impugned order dated 1.5.2009 satisfies the requirement of both Order 41 Rule 27 and Order 47 Rule 1 C.P.C. and accordingly ought not to be interfered with. On a consideration of the submissions of learned counsel for the parties, I find sufficient force in the submissions of learned counsel for the respondents. It is evident that though the respondents had earlier filed an application under Order 41 Rule 27 C.P.C., but it was rejected by order dated 17.5.2008. The rejection of the said application was merely on the ground that they could not satisfy the Court that the same was not - 8 - merely a fishing enquiry, rather an evidence which would have a serious bearing upon the fair and just decision of the case. In the said circumstances, the appellate court below could not be satisfied enough to interfere with the matter by permitting the respondents to lead additional evidence under Order 41 Rule 27 C.P.C. However, there was a drastic change in the situation after the information dated 1.8.2008 was obtained from the relevant Government Office which shows that the original plaintiff No.2 had joined Government service in the year 1948, which is contrary not only to the statements made in the plaint but also the case laid before the learned trial court. The evidence, thus, acquires a serious importance if justice is to be done between the parties and is not merely an attempt to fill up the lacuna in the case of the respondents. Learned counsel for the respondents, thus, rightly submitted that the same is a new additional information, which was neither in possession of the respondents at the time of decree nor at the time when the previous application under Order 41 Rule 27 of the Code of Civil Procedure was filed or even disposed of on - 9 - 17.5.2008. Thus, on a consideration of the aforesaid facts and circumstances, this Court does not find any reason to interfere with the impugned order in this appeal and it is, accordingly, dismissed. It is, however, made clear that in view of fresh materials being permitted to be brought on the record on behalf of the appellants in the court below, it would be open to the plaintiff- respondent-appellants to take appropriate steps to controvert the same in the court below. VPS ( Ramesh Kumar Datta, J. )