BRAJA BEHARI ROY Vs. CHITTA RANJAN CHAKRAVARTY
HIGH COURT OF GAUHATI
Braja Behari Roy
Chitta Ranjan Chakravarty
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C. Sanjeeva Row Nayudu, J. -
(1.) THIS is an application for the admission of additional evidence in these second appeals under, Order 41, Rule 27, Code of Civil Procedure, read with the corresponding rule under Order 42, Code of Civil Procedure which makes the provisions of Order 41 applicable to the second appeals under Order 42, Rule 1, Code of Civil Procedure.
(2.) THE point that arose for determination in these proceedings was whether the Plaintiff was senior to the Defendants Nos. 2 to 15. The case of the Plaintiff in his plaint was that he is entitled to seniority over the Defendants by virtue of his service and also by reason of the date of confirmation. The Defendants affected contended that they were senior in service to the Plaintiff, that they were also senior to the Plaintiff because they had been confirmed earlier and that consequently the Plaintiff is not entitled to a declaration in regard to his seniority asked for in the plant and also for the other reliefs. A number of documents would appear to have been placed before the trial Court by the Plaintiff in support of his stand. The Defendants also had produced some documents, but they were not able to place their hand on a document marked 'XX' by the lower Appellate Court for identification -a letter dated 28th August 1951, which according to them clinched the question of seniority and established that the Defendants Nos. 2 to 15 were senior to the Plaintiff, having been confirmed earlier than the Plaintiff. It is also pointed out in the petition that the document 'X' was sought to be put in as additional evidence under Order 41, Rule 27, Code of Civil Procedure, by the Government Pleader appearing for the Union of India Defendant No. 1 in the First Appeals. But apparently he did not press his application for a decision on the ground that the document 'XX' makes reference to two other documents, viz., letter No. Fin/8108/8 -Apptt/C dated the 8th August 1951 and letter No. 11/35/1/ET/51/19368 dated the 25th July, 1951 and that in the absence of these two documents, it was not worth while pressing for receiving as additional evidence the document marked 'XX' The matter ended there. The Defendants Appellants now claim that not only is the document marked 'XX' important in this case in reaching, the decision in the matter but the other two documents referred to in this document have since been traced and a copy there of has been produced by the Appellants Accordingly they pray that these documents may now be received as additional evidence and taken into -considerations in deciding the issue in the case namely that the Plaintiff is entitled to seniority. The Appellants have also filed other documents in support of then stand claiming that these documents were also not available to them and so could not be produced.
(3.) THE question that now falls to be considered in this petition is whether at this stage we should exercise our discretion under Order 41, Rule 27, Code of Civil Procedure in receiving these documents as additional evidence in the case.;
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