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Judgment
N.A. Britto, J.—Heard learned Counsel on behalf of both parties. Challenge in this petition is to the Order dated 27-12-2007 of the learned Additional District Judge, Mapusa, in R.C.A. No. 1/2005, by which the learned Additional District Judge has rejected the Petitioner/Defendant''s application under Order 41, Rule 27(aa), C.P.C. for production of additional evidence.
It appears that the Defendant is claiming property surveyed under Cadastral Survey No. 185 through Shree Siddeshwar Devasthan while there is no dispute that property surveyed under old cadastral number 186 belongs to the Respondent/Plaintiff. The said application dated 27-11-2007 came to be filed before the learned Additional District Judge in the second round of litigation before him. By the said application the defendant sought leave to produce four documents which are referred to in para 4 of the said application. There is no dispute, as noted by the learned Additional District Judge, that cadastral survey plans of both numbers 185 and 186 were already earlier produced by the parties from which the area of the respective cadastral survey numbers could have been found out. It also appears that the Defendant had already examined a surveyor to show how much area of cadastral survey No. 185 was surveyed in the name of the Plaintiff in new survey No. 419(Part). Likewise, the documents mentioned at 4(c) and 4(d) of the application were also already produced and the only new document which was sought to be produced was a certificate issued by the Inspector of Survey and Land Records dated 13-2-2004. As regards the said certificate the learned Additional District Judge has observed that it could not be said that the said certificate because it was issued on 13-1-2008 it came into existence only on that date. In fact the said certificate is an opinion given by the said Inspector of Survey and Land Records stating that old cadastral No. 185 corresponds to certain new survey numbers mentioned therein. The Defendant was always free to obtain such a certificate, if the Defendant wanted to, either during the trial of the suit or for that matter in the first round of litigation before the learned Additional District Court.
Learned Counsel on behalf of the Petitioner has submitted that it is in the interest of justice that the said documents and the witnesses to be examined in support thereof are allowed to be examined and in this context learned Counsel has placed reliance on the decisions reported in Billa Jagan Mohan Reddy and Another Vs. Billa Sanjeeva Reddy and Others, , Jaipur Development Authority Vs. Smt. Kailashwati Devi, and State of Rajasthan v. T. N. Sahani and others ( (2002) 10 SCC 619).
In the first decision it is observed by the Apex Court that additional evidence could be allowed to be produced if it is needed in the interest of justice. In the second it is observed with reference to Clause (aa) of sub-rule (1) of Rule 27, Order 41 that all that is required is that the conditions mentioned in the body of the sub-rule must be proved to exist. In the third, it is stated that the sub-rule mentions the conditions which must be complied with by the party producing additional evidence namely that "notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him".
As far as the facts of this case go, in my view and as rightly held by the Additional District Judge the predicate of Clause (aa) of sub-rule (1) of Order 41 was not at all satisfied by the Petitioner/Defendant and it appears that since earlier the Petitioner/Defendant could not prove what he sought to prove with the assistance of a surveyor that he is seeking another opinion of another surveyor i.e. to say Inspector of Survey and Land Records to prove the same. It was always open to the Petitioner to have obtained the certificate dated 13-1-2004 earlier. Such exercise was impermissible in the light of Clause (aa) of sub-rule (1) of Rule 27, Order 41, C.P.C.
In my view, the Order of the Additional District Judge calls for no interference from this Court in extraordinary jurisdiction. The petition is therefore hereby dismissed.