IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1411 of 2006 GAURI SHANKER SHARMA Versus SAHDEO SUTHIHAR @ SAHADEO SHARMA ----------- 3. 10.12.2008 Heard Mr. Amit Prakash, counsel for the petitioner and Mr. Bishwajit Kumar Mishra, counsel for O.P.No.1. The court below by the impugned order has rejected the prayer of the defendant- appellant for taking a certified copy of Khatiyan on record by way of additional evidence mainly on the ground that the petitioners were definitely aware of this old public document. The written statement filed by the defendant- petitioner in the trial court in paragraph 16 would go to show that certain claim of the defendant was based on jointness of the two brothers, vendors till 1945 and therefore, the Khatiyan in question of the year 1931 could have been of an assistance to the court in deciding the issue involved in this case. Mr. Mishra, however, would submit that nothing was said in the application seeking prayer for allowing additional evidence to be taken on record and as such, 2 the approach of the court below in rejecting such a half hearted prayer cannot be said to be vitiated by any jurisdictional error. Considering the aforementioned submissions as also the fact that the document in question sought to be taken on record by way of additional evidence is the certified copy of the Khatiyan, the court below was required to apply its mind on the requirement of the third ingredient of Order 41 Rule 27 C.P.C. as to whether the said document could have been of effective assistance to the appellate court in deciding the issue in question. That having been not done the effort of the court below to reject the prayer of the petitioner strictly speaking would not be in conformity with Order 41 Rule 27 C.P.C. Obviously such an error on the part of the court below would amount to jurisdictional error. That being so, this Court would set aside the impugned order and direct the court below to reconsider the whole issue in the light of the aforementioned observations as also keeping in view the three requirements of Order 41 Rule 27 C.P.C. 3 Let it be made clear that this Court has not expressed anything on the merits of the case and it will be open to the court below to examine the requirement of the said Khatiyan to be taken on record by way of additional evidence and pass an appropriate order in accordance with law. In view of the fact that such action on the part of the defendant appellant was definitely belated seeking the relief of additional evidence by way of taking the aforementioned Khatiyan on record, in case the court below would allow the prayer for taking the document by way of evidence it will also impose a cost of Rs. 2500/- to be paid by the petitioner to the opposite party. This application, accordingly, stands allowed in the aforementioned terms and to the aforementioned extent. (Mihir Kumar Jha,J.) Surendra/