- (1.) THE present petition is filed against the dated 14.5.2012 passed by the learned District Judge -II Dhanbad in Misc Appeal No. 194 of 2010 whereby the petition dated 24.1.2012 filed to call for original document from the CMPF office and the petition dated 27.2.2012 filed under order 1 Rule 10(2) and under Order 41 Rule 27 of the Code of Civil Procedure have been rejected.
(2.) THE learned counsel appearing for the petitioner by referring the impugned order submitted that the court below has failed to appreciate the provision contained in order 41 Rule 27 of the Code of Civil Procedure in its proper perspective and thereby committed an error while rejecting the application preferred by the present petitioner. The learned counsel appearing for the petitioner by referring the application (Annexure -2) submitted by the petitioner pointed out that the facts were narrated in the application, wherein it was stated that initially land was acquired by the State Government for C.M.L.W.O and possession of the same was taken by the representative of the said organization in the year 1955 and certificate to that effect was also given by the authority and all these papers are on the record and marked as Exhibits by the E.O. and subsequently under the provisions of law C.M.L.W.O merged with B.C.C.L. in the year 1986. According to the petitioner, efforts were made to obtain the relevant copies of the documents from C.M.L.W.O but they supplied the attested copies only to the BCCL and therefore, they could not produce the original one during course of trial. Therefore, by way of submitting this application the petitioner has prayed for production of original documents which are in possession of C.M.P.F. The learned counsel appearing for the petitioner has also submitted that by way of producing another application filed under order 1 rule 10(2) and under order 41 rule 27 CPC, request was made for impleading C.M.P.F and others as party respondents in the appeal but the appellate court also rejected the said prayer. The learned counsel for the petitioner by referring order 41 Rule 27 of the CPC pointed out that the said provision contained in order 41 Rule 27 of the CPC is required to be read in this context with clause (aa) and (b). It is also submitted that the documents in question are necessary for the purpose of determining the issues involved in the matter and it will also help for pronouncement of the judgment by the court below. The learned counsel appearing for the petitioner has also referred to and relied upon the following Judgments in respect of his arguments. - 2010(8) SCC page 423 2004(10) SCC Page 507 2008(8) SCC Page 511 2010(8) SCC 423 are almost similar to the present case by referring paragraphs 12,15 and 16. Likewise the learned counsel for the petitioner has also referred to and relied upon the paragraphs 8 and 9 of judgment reported in 2004(10)SCC page 507. As against that, the learned counsel appearing for the respondent while supporting the impugned order passed by the court below submitted that the learned court below has not committed any error while rejecting the application made by the petitioner under order 41 Rule 27 of the Code of Civil Procedure. The learned counsel appearing for the respondent submitted that the petitioner cannot be permitted to fill up lacuna by production of additional evidence at the appellate stage. It is further submitted that the matter was at argument stage and the question of evidentiary value of exhibited documents is still required to be considered by the appellate court and therefore, the impugned order passed by the court below is sustainable in the eye of law. It is further submitted that the court below has taken note of arguments advanced by the respective parties wherein it is clearly observed that before commencement of hearing of this appeal the appellant filed a petition under order XI rule 12 and 14 CPC seeking an order directing the respondent to make discovery and production of the original documents, xerox copies of which were filed before the court below, but the respondent stated that all the relevant documents are on record and therefore, they cannot be permitted to produce the original document which were objected by them even at the appellate stage. The learned counsel appearing for the respondent by referring the application submitted by the present petitioner before the appellate court pointed out that the averments made in paragraphs 4,5,6 and 12 are inconsistent with each other. The learned counsel for the respondent submitted that the petitioner had not produced any supporting documents or evidence in support of the averments made in paragraph 12 of the said application. It is further submitted that attempt of due diligence under order 41 rule 27 of CPC mentioned in clause 1(aa) has not been satisfied in the instant case and therefore, the court below rightly rejected the application made by the petitioner. It is further submitted that C.M.L.W.O merged into B.C.C.L long back and therefore the said averments made by the present petitioner that they were not aware about the documents and also they are not in custody of the original documents, cannot be believed and the petitioner had not given satisfactory explanation as to why these document were not produced at the relevant point of time. The learned counsel appearing for the respondents in support of his submissions has also referred to and relied upon the following judgments : AIR 1965(S.C) 1008 (2007)14 S.C.C 257 (2004)10 S.C C779 (2008) 3 S.C.C. 120 By referring the aforementioned judgments the learned counsel appearing for the respondent submitted that as per ratio laid in these judgments the petition filed by the petitioner deserves to be dismissed.
(3.) CONSIDERING the aforesaid arguments advanced by the learned counsel for the parties and on perusal of the impugned order and also other materials produced on record including the application preferred by the present petitioner before the Appellate court under order 41 rule 27 of the Code of Civil Procedure it transpires that the prayer was made by the petitioner before the appellate court for impleading C.M.P.F and others as party respondents and also production of additional evidence in the form of original documents of Land Acquisition proceeding have been rejected. It appears that attested copies of the said documents were already produced on record during course of trial and the said documents have been exihibited by the Estate Officer who was appointed under Public Premises(Eviction and Unauthorized Occupants)Act 1971. On perusal of the impugned order it appears that the court below while rejecting the application filed under order 41 rule 27 observed that the attempt made by the present petitioner to lead the additional evidence in appellate stage cannot be allowed to fill up the lacuna and therefore, this observation is likely to affect the case of the present petitioner on merit at the time of final adjudication of appeal. While considering the application under order 41 rule 27 of the CPC the court below is required to consider the case from angle as to whether the original documents, for which production as sought for, is necessary for the purpose of pronouncement of judgment in the light of the provision contained in order 41 rule 27 of CPC along with provision contained in clause 1(aa).;