JUDGMENT
M.M. Kumar, J.
1. This petition has been filed under Section 115 of the Civil Procedure Code, 1908, (for brevity ‘the Code’) for setting aside order dated 28.11.2001 passed by the Additional District Judge, Ropar, alongwith an application of the plaintiff-petitioner under Order XLI Rule 27 of the Code by permitting him to bring on record orders dated 4.10.1978 and 5.3.1984 which were passed by the Additional Director, Consolidation of Holdings and Consolidation Officer, respectively.
2. Brief facts of the case are that the plaintiff-petitioner had filed a suit against the defendant-respondents seeking a declaration to the effect that he was owner in possession of the suit land and the alleged sale deeds executed by one set of defendant-respondents in favour of another set of defendant-respondents were illegal and void. It has further been prayed that the sale deeds were not binding on the rights of the plaintiff-petitioner. The suit was decreed by the Civil Judge (Jr. Divn.), Kharar on 29.2.1996 and the judgment and decree was challenged in the first appeal. During the pendency of appeal, an application was filed under Order XLI Rule 27 of the Code for permission to adduce additional evidence which has been allowed by the impugned order. It was alleged by Jagmohan Singh (now represented by defendant-respondents 1 to 6 ) that the plaintiff-petitioner had relied on an order dated 4.11.1976 which was set aside on 4.10.1978 by the Additional Director, Consolidation of Holdings, Punjab, Chandigarh and the case was remanded back to the Consolidation Officer for passing order afresh after affording opportunities to parties. The Consolidation Officer than decided the case on 15.3.1984. Learned Appellate Court considered both the orders as relevant to the decision of the controversy in appeal and the operative parts of its orders reads as under:-
“I have carefully considered these contentions of learned counsel for the appellant and firstly it would be evident that the documents intended to be produced are certified copies of the orders passed by the Additional Director Consolidation of Holdings as well as Consolidation Officer as back as in the year 1978 and 1984 respectively and there are no chances of their fabrication at any subsequent stage. Moreover, it has also been noticed that Ajit Singh son of Ram Singh resident of Kharar had filed a Civil Writ Petition No. 650 of 1989 which is pending in the Hon’ble High Court with regard to the same subject matter and in reply to that writ petition, Ved Bassi in para No. 4 of his reply has admitted the fact that petitioner and other co-sharers filed appeals/petitions before the Additional Director Consolidation of Holdings and the same were decided on 4.10.1978 and the case was remanded back to the Consolidation Officer with the direction that fresh orders may be passed after hearing all the affected parties. This admission shows that Ved Bassi was also in the knowledge of the said orders. It is relevant to add that the respondent Ved Bassi had alleged in his pleadings that in accordance with the orders dated 4.11.1976, he had already received the possession of the disputed property as allotted to him. The said orders dated 4.11.1976 were set aside vide orders of the Additional Director dated 4.10.1978. As such the orders dated 4.10.1989 and subsequent proceedings after remand of the case are quite relevant for the fair decision of the case and if they are allowed to be brought on the record, they are not likely to cause any injustice to the opposite party and moreover, the opposite party can be given opportunity to rebut these documents and for the delay so accrued by this additional evidence application, the other party can be compensated with costs.”
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“… that the appellant had exercised due diligence to produce these documents in the court but his counsel either inadvertently or intentionally did not bring those documents on the file. If the counsel for the appellant was negligent in his duties to produce these documents on the file or inadvertently he could not produce the same and for the said negligence or inadvertence of the counsel, the appellant cannot be allowed to suffer.”
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“So far as the locus-standi of the appellant in filing the application for additional evidence is concerned, a person may not be a party to a litigation but he has got the right to produce a document in evidence if he requires so. It would be seen at the time of arguments, as to what is the legal value of these documents on the record but additional evidence is not barred.”
3. Mr. Arun Palli, learned counsel for the plaintiff-petitioner has argued that the application under Order XLI Rule 27 of the Code should have been decided alongwith the appeal as the question of relevancy and the significance of additional evidence can be examined by Appellate Court more properly at that stage. According to the learned counsel, in the absence of hearing of the appeal, such a course should not have been adopted by the learned Appellate Court. Referring to the facts of the present case, learned counsel has submitted that the appeal was not listed for hearing on 6.11.2001 or 10.11.2001 or on subsequent dates on 24.11.2001 or 28.11.2001, when the impugned order was passed. Learned counsel has insisted that in the presence of hearing of appeal, passing of an order on an application under Order 41 Rule 27 of the Code was not proper as has been held by the Supreme Court in State of Rajasthan v. T. Sahani and Ors., (2001-1)127 PLR 294, which judgment has been followed by this Court in the case of Municipal Committee, Ellenabad v. Shanti Devi and Ors., (2003-1)133 P.L.R. 456, Mr. Palli has referred to inter-locutory orders of the year 1998 which shows the listing of appeal alongwith the application under Order XLI Rule 27 of the Code. However, he has pointed out that there was different Presiding Officer when the impugned order was passed and there is no indication that the appeal was then listed for arguments.
4. Mr. P.C. Singhal, learned counsel for the defendant-respondents, however, contends that the appeal was listed for hearing alongwith the application on 16.9.1998, and subsequently on 14.10.98. He has referred to various inter-locutory orders, showing that the appeal was listed alongwith the application in 1998. Learned counsel has maintained that appeal is always listed alongwith the application. Referring to the impugned order, learned counsel has insisted that learned Appellate Court has pointed out relevancy of both the documents and has felt the necessity of these documents for fair decision of the appeal.
5. The first question which needs to be determined in the instant petition is whether the permission granted by the impugned order dated 28.11.2002 passed by the Additional District Judge for adducing additional evidence is covered by the provisions of Order XLI Rule 27 of the Code. The aforementioned rule reads as under:-
Order XLI
Appeals From Original Decrees
“27. Production of additional evidence in 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) the Court from whose decree the appeal is preferred has refused to admit evidence which sought 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, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”
6. A perusal of Rule 27 would show that there are various eventualities envisaged when the Appellate Court would be entitled to exercise its jurisdiction for grant of permission to adduce additional evidence viz. (i) when the trial Court from whose decree, the appeal is preferred had refused to admit evidence which in law was admissible; (ii) when the party praying for adducing of additional evidence establishes that despite exercise of due diligence such evidence was not within his knowledge; (iii) when despite the exercise Of due diligence it could not be produced by him before the trial Court; and (iv) when 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 only condition imposed by Sub-rule (2) is that the Appellate Court is required to record its reasons. Therefore, the Appellate Court is not to permit production of additional evidence which is designed to help the parties to bridge up the gaps in its concluded evidence before the trial Court or to make up for omissions earlier made. However, in the present case, learned Appellate Court has permitted the production of additional evidence in the shape of certified copies of orders passed by the authorities under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 by bringing the case within group No. (iii) which is covered by Rule 27(1)(aa) and ground No. (iv) which is covered by Rule 27(1)(b) of the Code. A perusal of paragraph 7 of the order shows that the defendant-respondents were diligent inasmuch as the documents were handed over to their counsel in the trial Court but inadvertently or otherwise could not be produced by their counsel on the file which is covered by Rule 27(1)(aa) of the Code. Similarly, paragraph 12 of the order would show that the documents were necessary to be placed on file to serve the ends of justice. The aforementioned provision fell for consideration of the Supreme Court in the case of Karnataka Board of Wakf v. Government of India and Ors., (2004)10 S.C.C. 779 and aforementioned has been taken by their lordships.
7. Even otherwise, certified copies of orders dated 4.10.1979 and 5.3.1984 sought to be produced as additional evidence are the beads roped in the same string. The plaintiff-petitioner had placed reliance on an order dated 4.11.1976. Two orders which are permitted to be tendered as additional evidence are the orders passed by the Appellate Court which remanded the case to the Consolidation Officer and the order dated 5.3.1984 is the new order which was passed by the Consolidation Officer. Obviously, there is direct relationship of the evidence permitted to be adduced and no exception can be taken to the impugned order.
8. Learned Appellate Court has rightly over-ruled the objection that the defendant-respondents did not have any locus standi in filing the application for additional evidence by observing that a person may not be a party to the litigation, yet he may be entitled to produce a document as additional evidence. The aforementioned view taken by the learned Appellate Court is supported by a judgment of the Supreme Court in Jaipur Development Authority v. Smt. Kailashwati Devi, (1997-3)117 P.L.R. 880 (S.C.). Dealing with the aforementioned contention and rejecting the same, the Supreme Court observed as under:-
“The intention of the sub-rule, in our view, is that a party who, for the reasons mentioned in the sub-clause, was unable to produce the evidence in the trial Court, should be enabled to produce the same in the appellate Court. The sub-rule mentions the conditions which must be complied with by party producing the additional evidence, namely, 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” in the trial Court. It is not one of the conditions that the party seeking to introduce “additional” evidence must have also been one who has led some evidence in the trial Court. Such a view amounts to introducing an additional condition not contemplated by the sub-rule. No distinction was intended by the sub-rule between a party who has produced some evidence in the trial Court and one who has adduced no evidence in the trial Court. All that is required is that the conditions mentioned in the body of the sub-rule must, be proved to exist. It is not permissible to restrict the Sub-clause (aa) for the benefit of only those who have adduced some evidence in the trial Court.”
9. The argument raised be learned counsel for the plaintiff-petitioner on the basis of the judgment of the Supreme Court in T. Sahani’s case (supra) to the effect that the application ought to have been decided alongwith the appeal, would not require any detailed and serious consideration. The inter-locutory orders produced by both the parties do not indicate that the appeal was not listed alongwith the application under Order XLI Rule 27 of the Code for arguments. A perusal of the impugned order itself shows that the Appellate Court has taken notice of the judgment and decree which is under challenge before it and on that basis it has opined the relevancy and necessity of adducing additional evidence. Moreover, in cases where permission to adduce additional evidence is granted, the appeal could not be decided alongwith the application because the other party would be required to avail an opportunity to reply such evidence. However, in cases where the application for additional evidence is dismissed, their appeal could be decided which explains the reasons in the present case for keeping the appeal pending. Therefore, there is no merit in the contention raised and the same is rejected.
10. For the reasons aforementioned, this petition fails and the same is dismissed. Parties through their counsel are directed to appear before the learned Appellate Court on 2.5.2005. It is made clear that any observation made in this order shall not be construed as an expression of opinion on merits of the matter.