YASHPAL SINGH AND OTHERS vs HUKUM SINGH AND OTHERS

Sudhanshu Dhulia, J

This matter arises out of consolidation proceedings, which were initiated at Village Aurangabad, Pargana Jwalapur, Teshil and District Haridwar. In

the consolidation proceedings, “chaks†were allotted to the parties and thereafter the private respondents moved an appeal before the Appellate

Authority. The Appellate Authority dismissed the appeal vide order dated 10.02.2009. The private respondents thereafter challenged the order dated

10.02.2009 in revision before the revisional authority. The revision was filed in the year 2009 and thereafter in the pending revision, the private

respondents moved an application in the year 2012 stating that due to inadvertence certain documents could not be disclosed before the consolidation

authorities in time, and these documents must be made a part of the proceedings. The revisional authority in the revision passed an order on

06.09.2012 setting aside the orders dated 10.02.2009 and 24.06.2006, and remanded the matter back to the Consolidation Officer, Roorkee with a

direction to make the documents/additional evidences as part of consolidation proceedings, after a gap of 21 years from the initiation of the

consolidation proceedings. This order dated 06.09.2012 passed by the revisional authority as well as the order dated 07.03.2013 whereby the

documents were taken on record have been challenged before this Court.Â

Although the Civil Procedure Code is not applicable in the consolidation proceedings, as its application is only for limited purpose, yet the broad

principles can always be applied and the matter can be seen under Order 41 Rule 27 CPC. Order 41 Rule 27 CPC reads as under:

“27. Production of additional evidence in Appellate Court. â€" (1) The parties to an appeal shall not be entitled to produce additional evidence,

whether oral or documentary, in the Appellate Court. But if â€

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, orÂ

(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, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

 (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.â€​

 3. Even assuming that the above provision is not liable to be considered, the least which could have been done by the court below was to adopt a

procedural fairness. In this matter, there is no procedural fairness. Nothing is there on record to show that due diligence was shown by the private

respondent in procuring the evidence earlier. The respondents could not give any reasonable explanation as to why the documents could not be placed

earlier. Moreover, these documents as referred were even earlier available to the respondents and therefore it cannot be said that with due diligence,

it could not be produced earlier. Â

In view thereof, the order dated 06.09.2012 passed by the revisional authority permitting the respondents to place the documents as additional

evidence is bad. Consequently, writ petition is allowed. Order dated 06.09.2012 and 07.03.2013 are hereby set aside.