AI Structured Summary
Not yet generated for this judgment
Judgment
This application is filed by the appellants of Regular Second Appeal No.24 of 2017. Their prayer is for permission to produce additional evidence. Through such evidence the appellants seek to bring on record two documents dated 18.07.2017 and 04.01.2017 produced at Annexures-I and J respectively to the application. Annexure-I is a communication from the Sub-Divisional Magistrate, Dharmanagar, North Tripura to the District Magistrate & Collector, North Tripura. Annexure-J is a communication from the Deputy Collector & Magistrate, Dharmanagar, North Tripura to the Sub-Divisional Magistrate, Dharmanagar, North Tripura.
This application is strongly opposed by the respondent original defendant on the ground that there is no justification for exercising powers under Order XLI Rule 27 of Code of Civil Procedure by permitting additional evidence being brought on record at the appellate stage. He points out that these documents were produced during the trial but no steps were taken to prove the documents and have them exhibited. The plaintiffs cannot have second innings at the appellate stage which would jeopardize the defence of a defendant. It is also pointed out that similar attempt was made to bring those documents on record before the first Appellate Court. Such application was rejected by an order dated 27.03.2017 which order has not been challenged.
Having heard learned counsel for the parties, I find that the appellants original plaintiffs had instituted the suit for permanent injunction against dispossession from the suit property. The documents in question pertain to inquiries carried out by the State Revenue authorities. These documents were produced but not proved during the trial. The attempt of the appellants to bring such documents on record through additional evidence failed at the first appellate stage. Without challenging the order of the Appellate Court they have now made a fresh attempt to bring the documents on record in the second appeal. Order XLI Rule 27 undoubtedly empowers the Appellate Court to grant production of additional evidence at the appellate stage. However, such powers are circumscribed and can be exercised only upon establishment of the requirements contained in clauses (a), (aa) and (b) of sub-rule (1) of Rule 27. In fact, sub-rule (1) of Rule 27 begins with the expression "The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court." Sub-rule (1) is thus worded negatively. This sub-rule itself, however, recognizes certain exceptions to this limitation of production of additional evidence at appellate stage. These exceptions are laid down in clauses (a), (aa) and (b) of sub-rule (1) which are as under:
"(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(aa) 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
(b) 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 view of the facts noted above, none of the grounds mentioned in the said clauses exist in the present case. In fact, there was total lack of due diligence on the part of the appellants in producing the said evidence before the trial Court itself.
Application is, therefore, dismissed.