IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1005 of 2008 SWARUP SAH Versus LUTANI DEVI & ORS ----------- 2 14.07.2008 Heard counsel for the petitioner. Counsel for the petitioner would submit that the document in question which were sought to be brought on record by way of additional evidence under the ambit of Order XLI Rule 27 of the Code of Civil Procedure ought to have been allowed by the appellate Court as such documents relating to previous partition could have by themselves enabled the appellate Court to decide the issue effectively. Counsel for the petitioner, however, on being probed with regard to the nature of such documents very fairly submits that these are only sale deeds from which an interference of the previous partition can be drawn. It thus becomes clear to this court that the documents sought to be admitted by way of additional evidence have no direct evidentiary value with regard to the previous partition between the parties. In that view of the matter the finding recorded by the Court below in the impugned order that such of the documents sought to be - 2 - brought on record by way of additional evidence will have no direct bearing on the issues involved in the suit and this appeal and would not render any effective assistance to the appellate in deciding the main issue involved in the appeal is correct and needs no interference by this Court under Section 115 C.P.C. This Court can also not ignore the fact that the appeal was filed in the year, 1996 and only when the same had been taken up for arguments, a belated attempt was made by the petitioner for admitting irrelevant documents by way of additional evidence, which on the face of record and in view of the findings recorded by the Court below in the impugned order appear to be a mere device to delay the final disposal of the appeal. That apart the law in this respect stands settled as may also be noticed in the judgment of the Apex Court in the Case of Mahavir Singh and Ors. Vs. Naresh Chandra and Another reported in AIR 2001 Supreme Court 134 where it has been held that the recourse to additional evidence by the appellate Court can - 3 - be allowed only certain contingency namely (i) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (ii) 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 (iii) 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. In the opinion of this court none of the aforementioned situations were - 4 - existing before the Court below in the pending appeal of the petitioners as has been recorded in the impugned order itself. That being so, the impugned order does not suffer from any material irregularity and/or jurisdictional error and consequently it has to be held by this Court there is no merit in the Civil Revision application and accordingly the same is dismissed with a direction to the court below to dispose of the appeal within six months from the date of receipt/production of a copy of this order. BCJ (Mihir Kumar Jha, J.)