Manoj Kumar Gupta, J. - (1.) The petitioner is appellant in Civil Appeal No. 11 of 2011, now pending in the Court of Additional District Judge, Court No. 3, Kushinagar at Padrauna. The appeal filed by the petitioner is against judgment and decree of the trial Court dated 21 May 2011 dismissing Original Suit No. 1134 of 2008 instituted by him through his next friend. In the appeal, the petitioner moved an application under Order 41 Rule 27 Code of Civil Procedure for taking additional evidence on record. The additional evidence comprises of certified copies of sale deeds dated 22 September 2008 and 12 September 2008, of which cancellation was sought in the suit. A questionnaire dated 12 July 2013 by the Court of Tehsildar Hata and Income Tax Returns of the plaintiff were also sought to be brought on record by way of additional evidence. In the affidavit filed in support of the application for adducing evidence, it was pleaded that the next friend of the plaintiff is a pardanashin lady and was not conversant with the intricacies of law, consequently, these documents could not be filed at the stage of trial. It is further alleged that while searching the old documents, the next friend of the plaintiff came across certain documents, which are necessary to be taken on record for trial and adjudication of the dispute involved in the suit. The Lower Appellate Court has rejected the application for additional evidence by holding that these documents were available to plaintiff appellant even when the suit was pending and could have been filed in the suit itself. It has been further held that copy of the sale deeds are already on record before the trial Court and, as such, now there is no justification for bringing on record the certified copy thereof.
(2.) A perusal of the order of the Lower Appellate Court reveals that it had not recorded any finding that the documents which were sought to be brought on record are not relevant for the controversy involved in the appeal. The plaintiff appellant in the affidavit filed in support of the application for adducing additional evidence has raised a categorical plea that the next friend of the plaintiff being a pardanashin lady, she was not conversant with the intricacies of law and, thus, could not file these documents at the trial stage. Under Order 41 Rule 27 CPC, a party is entitled to produce additional evidence if it establishes that notwithstanding 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. It was incumbent upon the Lower Appellate Court to have considered the explanation furnished by the appellant to demonstrate that in spite of due diligence, such evidence could not be filed at the trial stage.
(3.) Learned counsel for the defendant respondents Sri A.K. Pandey, submitted that instead of remitting the matter back to the Lower Appellate Court for a fresh consideration of the application of the plaintiff appellant under Order 41 Rule 27 CPC, this Court may allow the application and direct the trial Court to take the documents on record as additional evidence provided the petitioner is put to terms as regards the time frame within which the appeal is to be decided.;