-1- C.M.P. No. 431 of 2024 2025:JHHC:11957 IN THE HIGH COURT OF JHARKHAND, RANCHI ---- C.M.P. No. 431 of 2024 ---- 1.Nejam Ansari aged about 71 years son of late Tifazat Ansari 2.Haliman Khatoon aged about 79 years wife of late Sagir Ansari @ Sheikh Makhan 3.Seikh Ataul Ansari aged about 54 years 4.Zakir Ansari aged about 53 years 5.Aziz Ansari, aged about 49 years Petitioner nos.3,4 and 5 all sons of late Sagir Ansari All residents of Village Nigni,Gangupara, PO Nigni, PS and District Lohardaga …. Plaintiffs/ Appellants/ Petitioners -- Versus -- 1.Mojahim Ansari, aged about 54 years 2.Mahmood Ansari aged about 51 years 3.Mozaffar Ansari aged about 49 years Respondent nos.1,2 and 3 all sons of late Sheikh Situ 4.Manrakhan Khatoon @ Khatun, aged about 79 years (dead) All residents of Village Nigni, Gangu Para, PO Nigni, PS and District Lohardaga, Respondent No.1 is presently residing at Mohalla Islam Nagar Idgah Mohallah, PS and District Lohardaga, Respondent Nos.3 and 4 are presently residing at Durgabari lane, behind Sadar Hospital Lohardaga, PO, PS and District Lohardaga …. …Opposite Parties ---- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI --- For the Petitioner(s) : Ms Omiya Anshu, Advocate For the Opposite Party(s) : ---- 5/22.04.2025 Notice upon the Opposite party nos.1 to 3 have already been effected and they have not appeared and in view of that this matter was adjourned on -2- C.M.P. No. 431 of 2024 03.03.2025 with a view to provide one more opportunity to the Opposite party nos.1 to 3 and in spite of that, they have not appeared before Court and as such, this petition is being heard in absence of the Opposite party nos.1 to 3. 2. Heard the learned counsel appearing on behalf of the petitioner. 3. This petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 05.03.2024 passed by the learned Principal District Judge, Lohardaga in Civil Appeal No.05 of 2022 whereby the petition filed by the petitioners herein under Order XLI Rule 27(i)(a) read with Section 151 of the CPC has been rejected by the learned court. 4. The learned counsel appearing on behalf of the petitioners submits that the petitioners are the plaintiffs in Original Title Suit No.8 of 2015 which has been instituted against the defendants/ respondents before the learned court of Munsif, Lohardaga. She submits that the case of the petitioners/ plaintiffs in short is that the lands of R.S.Khata No.173, Plot No.630, Area 3 decimals and Plot No.640, Area 59 decimals, out of total area 62 decimals situated at village Nigni, Plot No.144, PS and District Lohardaga stands recorded in the names of Sheikh Maru and Sheikh Nuran son of Chirku as Kaimi. She submits that the petitioners/ plaintiffs are heirs of the recorded tenants and she submits that genealogical table is disclosed in paragraph no.7 of the present CMP. She submits that the said suit was decided on contest and the judgment and decree of dismissal was passed on 06.04.2022 by the learned trial court. The same was challenged before the learned first appellate court in Civil Appeal No.5 of 2022. She submits that the litigation arose because of incorrect entry in R.S.Khata Number 533. In the suit a copy of R.S. Khata No.533 was filed and same was available on the record of Original Suit No.8 of 2015 and may not be marked as exhibit although there was no legal impediment since it is a public document and in that view of that matter, a petition under Order XLI Rule 27(i)(a) read with Section 151 of the CPC was filed before the learned first appellate court -3- C.M.P. No. 431 of 2024 which has been rejected by the learned court. She submits that the said document was necessary to decide the appeal and in view of that the learned court has erred in passing such order only on the ground that earlier also identical prayer was allowed by the learned trial court. On this ground, she submits that the said order may kindly be set aside. 5. It is an admitted position that the petitioners herein are the plaintiffs in Original Suit No.8 of 2015 and in the suit one miscellaneous application was filed being Misc.Appl.No.2 of 2023 for marking certain documents as exhibits 1 to exhibit 3/A and that was allowed by the learned trial court and thereafter the suit was decided by the impugned judgment. At the appellate stage, the said petition was filed which has been rejected by the learned court. For allowing such petition under Order XLI Rule 27(i)(a) at the appellate stage, a cogent reason is required to be disclosed in the petition and further the duty lies upon the court to find out as to whether any due diligence has been taken in filing of the said petition or not? In a casual way, no petition under Order XLI Rule 27(i)(a) CPC can be allowed and no cogent reason has been explained before the learned court for allowing the said petition and the learned court considering that earlier also the application was filed before the learned trial court to mark the exhibits which has been allowed and in that view of the matter, he has been pleased to dismiss the said petition filed by the petitioners herein under Order XLI Rule 27(i)(a) of the CPC. It is to be noted that in the case in hand, as has been discussed the order of the learned first appellate court considerable delay in seeking such prayer and no sustainable reason was assigned as to why such prayer cannot be sought in the trial court while original proceeding was pending before the court. On the other hand, one petition has been filed which has been allowed by the learned trial court. Further from perusal of the Order XLI Rule 27 CPC it is crystal clear that the parties to an appeal are not entitled to produce additional evidence (oral or -4- C.M.P. No. 431 of 2024 documentary) in the appellate court except, on the principles enumerated in clause (a), (aa) and (b) of the Code where the appellate court requires a document to be produced or any witness to be examined to enable it to pronounce the judgment, or for any other substantial cause. The expression "to enable it to pronounce judgment" has been interpreted so as to mean that when the appellate court finds itself unable to pronounce judgment owing to a lacuna or defect in evidence as it stands, it may admit additional evidence. But, that does not mean that the clause should be resorted to patch up the weakness of the evidence of the unsuccessful party before the trial court, though, if the court itself requires the evidence to do justice between the parties, it may accept it. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of the court delivering it. But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can satisfactorily pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for the purposes of pronouncement of judgment in a particular way. The words "or for any other substantial cause" must be read with the word "requires", which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this clause would apply. Furthermore, if recourse is to be taken to the said clause, that is clause (c), which is pari-materia clause (b) of the Code, the appellate court is required to consider the entire evidence on record to come to an independent -5- C.M.P. No. 431 of 2024 conclusion whether for arriving at a just decision, adduction of additional evidence, as has been prayed for, is necessary or not? Therefore, ordinarily, an application seeking adduction of additional evidence by taking recourse to the aforesaid clause is to be considered at the time of hearing by taking a conspectus of the entire evidence on record for drawing satisfaction whether the evidence, the adduction of which is sought is necessary for pronouncing a judgment. 6. Coming to the facts of the present case, what has been discussed hereinabove, it is crystal clear that no reason has been disclosed before the learned court of not taking appropriate steps for marking the said document as exhibit when one petition has already been allowed by the learned court and exhibits have been marked as Exhibit nos.1 to 3(a). 7. The learned court has rightly passed the said order. There is no illegality in the impugned order. As such, this petition is dismissed. ( Sanjay Kumar Dwivedi, J.) SI/, A.F.R