1 caf610.2024.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CAF NO.610/2024 IN FIRST APPEAL NO.881/2014 Ashruba Narayan Jaybhaye through LR’s /Vs/ State of Maharashtra and others Office Notes, Office Memoranda of Coram, Appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Ms.Vidya Umale, Advocate for the applicants. Mr. G.S.Umale, A.G.P. for Respondent/State. Mr. A.M.Kukday, Advocate for respondent no.2. CORAM: Y. G. KHOBRAGADE, J. DATED : 11th AUGUST, 2026 1. Heard learned counsel appearing for the respective parties. 2. By the present application, the applicants/claimants seeking permission to lead additional evidence to prove notice under Section 4(1) of the Land Acquisition Act,1894 (for short, “the Act”) and Revenue record i.e. 7/12 Extract pertaining to the land Survey no.185 of mouza Mehuna Raja, District Buldhana. 3. The learned counsel appearing for the applicants/ claimants canvassed that, the Revenue record 7/12 Extract and Notice under Section 4(1) of the Act served upon the applicants/claimants reveals about exact figure of the fruit bearing trees and existence of pipe lines for irrigation purpose for the acquired land by the respondent no.2. However, the learned Reference Court fail to consider said evidence and granted very meager amount of compensation. Therefore, the applicant wanted to produce additional evidence to prove appropriate compensation. 4. The learned counsel appearing for respondent no.2 strongly opposed the application on the ground that, while issuing the notice dated 21st December, 2000 under Section 4(1) of the Act the the fruit bearing trees are mentioned and while determining the 2 caf610.2024.odt compensation, the learned Reference Court considered and determined the compensation. However, during course of trial, the appellant did not produce 7/12 extract and notice issued under Section 4(1) of the Act before the Trial Court to prove standing of the fruit bearing trees on the acquired land and existence of irrigation facilities. Therefore, at the appellate stage, the appellant cannot be permitted to produce additional documents on record. 5. In order to properly appreciate the controversy involved, it is necessary to reproduce Order XLI Rule 27 of the Code of Civil Procedure as under:- “27. Production of additional evidence in the appellate court- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if- (a)….. (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)... Wherever additional evidence is allowed to be produced by an appellate court, the Court shall record the reason for its admission.” 6. In case of Jagdish Prasad Patel Vs. Shivnath, (2019) 6 SCC (Civil) 82, the Hon’ble Supreme Court held that the additional evidence can be led when the Trial Court had refused to admit the evidence, the evidence was not available despite the exercise of due diligence and the evidence is required by the Court to effectively adjudicate the dispute pending before it. 7. In the case North Eastern Railway Administration Vs. Bhagwan Das (2008) 8 SCC 511, the Hon’ble 3 caf610.2024.odt Supreme Court observed in paras 13 and 14 as under:- "13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. The circumstances under which additional evidence. can be adduced are: (i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted [clause (a) of sub-rule (1)], or (ii) the party seeking to produce additional evidence establishes that, notwithstanding the exercise of due of diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed [clause (aa), inserted by Act 104 of 1976], or (iii) 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 [clause (b) of sub-rule (1)]. 14. 14. It is plain that under clause (b) of sub-rule (1) of Rule 27 Order 41 CPC, with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it "requires" to enable it to pronounce judgment, or for any other substantial cause. The scope of the Rule, in particular of clause (b), was examined way back in 1931 by the Privy Council in Parsotim Thakur v. Lal Mohar Thakur [AIR 1931 PC 143]. While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow the litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows : (AIR p. 148) "... Under clause (1)(b), it is only where the appellate court 'requires' it (i.e. finds it needful) that additional evidence can be admitted. It may be required 4 caf610.2024.odt to enable the court to pronounce judgment, or for any other substantial cause, but in either case, it must be the court that requires it. This is the plain grammatical reading of the sub- clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands some inherent lacuna or defect becomes apparent'." 8. In the case at hand, the appellants have not pleaded that they were not aware about notice dated 21.12.2000 under Section 4 (1) of the Act and 7/12 extract of the acquired land. The averment made in the application does not suggest that though they were diligent but they did not secure the said evidence and produce before the Trial Court. After going through the pleadings as well as evidence available on record, it prima facie appears that, the appellants were well within the knowledge about service of Notice u/s 4 (1) of the Act issued on 21-12-2000 and Revenue Record i.e. 7/12 Extract of the land, which has been acquired. 9. Needless to say that, in order to bring additional evidence on record at the appellate stage, it is necessary on the part of the Claimant to prove that, the appellant had tried to produce the additional evidence before the Trial Court, however, the Trial Court refused to consider the additional evidence and the appellant by due diligence could not produce the same on record. The applicants/claimants have brought any circumstances on record to show that they were not having knowledge of notice issued under Section 4(1) of the Act on 21.12.2000 and 7/12 extract of the land in question. So also, even after due diligence such evidence could not produce by them before the Reference court. 10. On perusal of the impugned judgment and award passed by the learned Joint Civil Judge Senior Division, Buldhana, it appears about considering the 7/12 extract pertaining to the acquired land as well as standing fruits bearing trees i.e. 2 Bale trees, 3 Mango trees, 5 caf610.2024.odt 3 Jamun trees/Java plum trees, 2 Lemon trees, 1 Pomegranate tree, 2 Guava trees, 27 Bori trees, 264 Mosambi (sweet lime) trees, and a Gotha (cattle shed). 11. Therefore, it appears that the appellant was not diligent while producing the evidence and after the appellant unsuccessful before the Trial Court for getting the enhanced amount of compensation, by the present application, the applicants are trying to bring additional evidence on record which is not justifiable. Therefore, I am of the considered view that no grounds are set out for permitting the appellant to produce additional evidence on record. 12. The application is rejected. (Y.G.KHOBRAGADE, J.) Mukund Ambulkar