Case Note & Summary
The petitioner, Sadruddin s/o Jeevanlal Dobriya, was a tenant in a property owned by the respondent, Parshuram Mahadeo Bramhankar. The respondent filed Small Cause Suit No. 46/2003 for eviction of the petitioner on the ground of default in payment of rent. The suit was decreed on 27/6/2005. The petitioner appealed against the decree by filing Regular Civil Appeal No. 45/2005 before the Ad hoc District Judge-1, Yavatmal. The appeal was posted for hearing on 25/4/2011, but the petitioner's counsel did not appear. Consequently, the appeal was dismissed for default, and the appellate court heard the respondent's arguments and reserved judgment for 27/4/2011. On 27/4/2011, the petitioner engaged a new advocate, who filed a Vakalatnama after obtaining no objection from the earlier counsel, and moved two applications: one under Order 41 Rule 27 CPC (Exh. 60) seeking permission to produce additional documentary evidence in the form of money order receipts to prove payment of rent, and another (Exh. 59) seeking permission to advance arguments. The Ad hoc District Judge rejected both applications on the same day, leading to the present writ petition. The High Court considered whether the rejection of the application under Order 41 Rule 27 CPC was justified. The court observed that the appellate court had not heard the appeal on merits and had dismissed it for default without considering the petitioner's explanation. The additional evidence sought to be produced was money order receipts, which were relevant to show that the petitioner had paid rent as required under the Rent Control Act. The High Court held that the appellate court erred in rejecting the application without considering whether the evidence was necessary for a just decision. The court noted that the appellate court had not applied its mind to the requirements of Order 41 Rule 27 CPC, which allows additional evidence if the court requires it for pronouncing judgment or if the party could not produce it despite due diligence. The High Court set aside the impugned order dated 27/4/2011, restored the appeal to its original number, and directed the appellate court to permit the petitioner to lead additional evidence and then decide the appeal afresh on merits. The writ petition was allowed with no order as to costs.
Headnote
A) Civil Procedure - Additional Evidence in Appeal - Order 41 Rule 27 CPC - The petitioner, a tenant against whom an eviction decree was passed for default in rent payment, sought to produce money order receipts as additional evidence in appeal to show compliance with rent payment obligations under the Rent Control Act. The appellate court rejected the application on the ground that the evidence was not required for pronouncing judgment. The High Court held that the appellate court failed to consider that the additional evidence was necessary to determine whether the tenant had paid rent as required, and that the rejection was premature as the appeal was not heard on merits. The court allowed the application and directed the appellate court to permit the additional evidence and decide the appeal afresh. (Paras 2-6) B) Civil Procedure - Restoration of Appeal - Dismissal for Default - The petitioner's appeal was dismissed for default on 25/4/2011 when his counsel did not appear, and the appellate court heard the respondent and posted the matter for judgment. On the judgment date, the petitioner engaged a new counsel who filed applications for additional evidence and to advance arguments. The High Court noted that the appeal was not heard on merits and the dismissal was not a final adjudication. The court set aside the dismissal and restored the appeal to its original number, directing the appellate court to hear the appeal afresh after permitting the additional evidence. (Paras 3-6)
Issue of Consideration
Whether the Ad hoc District Judge erred in rejecting the petitioner's application under Order 41 Rule 27 CPC for leading additional evidence in the form of money order receipts to prove payment of rent, and whether the appeal should be restored and the application allowed.
Final Decision
The High Court allowed the writ petition, set aside the order dated 27/4/2011 passed by the Ad hoc District Judge-1, Yavatmal, restored Regular Civil Appeal No. 45/2005 to its original number, and directed the appellate court to permit the petitioner to lead additional evidence under Order 41 Rule 27 CPC and then decide the appeal afresh on merits. No order as to costs.
Law Points
- Order 41 Rule 27 CPC allows additional evidence if the court requires it for pronouncing judgment or if the party could not produce it despite due diligence
- Additional evidence must be relevant to the issue and necessary for just decision
- Appellate court has discretion to permit additional evidence to prevent miscarriage of justice
