JUGAL MISHRA Vs. MAHABIR SAO

JUDGEMENT

(1.) IN this motion under Article 227 of the Constitution of India, the defendant, the appellant before the Lower Appellate Court, seeks to assail the order of the lower Appellate Court, dismissing an application made by him under Order XLI, Rule 27 of the Code of Civil Procedure, seeking to produce additional evidence in appeal. The application in that behalf was opposed on various grounds by the plaintiffs in the suit, the respondents. In the appeal before the lower Appellate Court. The Lower Appellate Court, on a consideration of all the relevant aspects, dismissed the application.

(2.) IMPUGNING the decision of the Lower Appellate Court, learned counsel for the petitioner, relied on the decision of the Supreme Court in State of Rajasthan V/s. T.N. Sahani and Ors., (2001) 10 SCC 619, and contended that the Lower Appellate Court should have considered application under Order XLI, Rule 27, Civil Procedure Code only alongwith the appeal when the appeal was taken up for final disposal and not before. As I understand the decision of the Supreme Court, it only Indicates that it would proper for a Court, called upon to admit evidence under Order XLI, Rule 27 of the Code, to consider the application when the appeal itself was being considered, since it would be in a better position to appreciate the question whether the document should be admitted in evidence or not. But that is not an authority for the proposition that the First Appellate Court lacks jurisdiction to independently deal with an application under Order XLI, Rule 27 of the Code of Civil Procedure, when it is made. Therefore, in my view, nothing turns on the argument that the order should be set aside and the application directed to be considered alongwith the appeal. For the purposes of this motion, I do not think that it is necessary to go into the other aspects, because in my view, the petitioner has an efficacious alternate remedy, In that, he can challenge the order now passed by the Lower Appellate Court, in any second appeal, he may be forced to file in case the appeal in the Lower Appellate Court goes against him. This is clear from Sec.105(1) of the Code of Civil Procedure, which enables the setting up as a ground of objection a challenge to the order in any memorandum of appeal that may be filed against the decree. Since, such an avenue is open and since the order of the Lower Appellate Court cannot be said to be one, beyond its jurisdiction, I do not think that it is appropriate to exercise my supervisory jurisdiction under Article 227 of the Constitution of India at this stage.