Application for additional evidence can be considered at the time of hearing of appeal

HIGH COURT OF ORISSA : CUTTACK

C.M.P. No.1479 of 2018

In the matter of an application under Article 227 of the Constitution of India.

Sri Gopal Krushna Panda @ Gopal Krishna Panda …. Petitioner

Versus

Manager, Utkal Grameen Bank, Humma Branch, Dist.-Ganjam and another ….Opposite Parties

For Petitioner … Mr. Prasanna Kumar Parhi,

Advocate For Opp. Party No.1 … Dr. Ashutosh Panda,

Advocate For Opp. Party No.2 … None

PRESENT:THE HONOURABLE DR. JUSTICE A.K.RATH

Date of hearing and judgment : 28.01.2019

Dr. A.K.Rath, J This petition challenges the order dated 07.9.2018, passed by the learned Additional District Judge, Chatrapur (Ganjam), in R.F.A. No.25 of 2016, whereby and whereunder, the appellate court rejected the application of the petitioner-appellant under Order 41 Rule 27 CPC to admit five number of documents as additional evidence.

2. Since the dispute lies in a very narrow compass, facts need not be recounted in details. Suffice it to say that plaintiff-petitioner instituted the Civil Suit No.2 of 2014 praying for damages. The suit having been dismissed, he filed R.F.A. No.25 of 2016 before the learned Additional District Judge, Chatrapur (Ganjam). During pendency of the appeal, he filed an application under Order 41 Rule 27 CPC to admit five numbers of documents as additional evidence. The respondents- opposite parties objected the same. The appellate court rejected the application.

3. Mr. Prasanna Kumar Parhi, learned counsel for the petitioner submits that the petitioner has filed an application under Order 41 Rule 27 CPC to admit five numbers of documents as additional evidence. Learned appellate court is not justified in rejecting the said application before hearing of the appeal.

4. Per contra, Dr. Ashutosh Panda, learned counsel for the opposite party no.1 submits that learned appellate court passed a reasoned order. There is no perversity in the said order warranting interference of this Court.

5. The question does arise as to whether the appellate court can consider the application filed under Order 41 Rule 27 CPC for admitting additional evidence before hearing of the appeal.
6. The subject-matter of dispute is no more res integra. In Sankar Pradhan Vs. Premananda Pradhan (dead) and others, 2015 (II) CLR 583, this Court in paragraph-7 of the report held as follows:

“7. In Parsotim Thakur and others Vrs. Lal Mohar Thakur and others, AIR 1931 Privy Council 143, it is held that under Cl.(1)(b) of Rule 27 it is only where the appellate Court “requires” it, (i.e., finds it needful) that additional evidence can be admitted. It may be required 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.” It may well be that the defect may be pointed out by a party or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing (emphasis laid). The same view was taken by this Court in the cases of Banchhanidhi Behera Vrs. Ananta Upadhaya and others, AIR 1962 Orissa 9 and State Bank of India Vrs. M/s. Ashok Stores & others, 53 (1982) C.L.T.552.” (emphasis laid)
7. In view of the authoritative pronouncement of this Court in the case of Sankar Pradhan (supra), the inescapable conclusion is that the application for additional evidence can be considered at the time of hearing of the appeal.

8. In the wake of aforesaid, the order dated 07.09.2018, passed by the learned Additional District Judge, Chatrapur (Ganjam), in R.F.A. No. 25 of 2016 is quashed. Learned Additional District Judge shall consider the application for additional evidence at the time of hearing of the appeal.

9. The petition is allowed. There shall be no order as to costs.

DR. A.K.RATH, J Orissa High Court, Cuttack.

Dated the 28.01.2019

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