Sahab Singh and Others vs IVth A.D.J. and Others

Sibghat Ullah Khan, J.—List revised.

No one appears for the Respondents. Legal representative of Respondent No. 2 have also not engaged any counsel inspite of sufficient service (substitution application has also been allowed).

Heard learned Counsel for the Petitioners.

IVth Additional District Judge Mainpuri passed an order on 09.09.1996 in Civil Appeal No. 149 of 1989 Kunwar Bahadur v. Sahab Singh. Petitioners are Respondents in the said appeal. Through the said order some documents sought to be adduced as additional evidence by Appellants/Respondents were taken on record merely on the ground that they were public documents and in order to decide the matter properly those documents were relevant and necessary. It was also mentioned in the said order that in the earlier part of the day when the case was called out both the parties were present and sought time to call their counsel, however, after some time only counsel of the Appellant appeared and neither Respondent nor his counsel appeared. For recalling the order dated 09.09.1996 restoration application was filed which was rejected on 06.01.1997. Both these orders have been challenged through this writ Petition.

In my opinion, no ground as mentioned under Order 41 Rule 27 CPC has been given in the impugned order. Merely because a document is public document, it does not become admissible ipso fact in appeal. Even public documents can very well be filed at the trial stage. The learned A.D.J. did not mention in the impugned order as to what was the nature of the documents sought to be adduced as additional evidence and how they were relevant and necessary to decide the matter. It has also not been mentioned that what is the controversy.

Accordingly, writ Petition is allowed both the impugned orders are set aside. Learned Additional District Judge is directed to decide the application under Order 41 Rule 27 CPC filed by Appellant Respondent afresh after providing opportunity of hearing to both the parties and by giving cogent reasons in the light of Order 41 Rule 27 Code of Civil Procedure.

Petitioners are directed to appear before the lower appellate court along with certified copy of this judgment on 07.12.2010. In case they fail to appear on the said date along with certified copy of this judgment then this writ Petition shall be deemed to have been dismissed. If Petitioners appear before the lower Appellant court on 07.12.2010 along with certified copy of this judgment then notice must at once be issued to the Appellants and information shall be given to their learned Counsel before the lower appellate court and a date in January 2011 must be fixed for hearing of additional evidence, application.