Inadvertence To Produce Document Not Substantial Cause To Invoke Order XLI Rule 27 CPC: Jammu & Kashmir High Court

The Jammu and Kashmir and Ladakh High Court has recently ruled that inadvertence on the part of a party to produce a document before the Court cannot be construed as a substantial cause within the meaning of Rule 27 of Order XLI of the Civil Procedure Code(CPC) to allow application for production of additional documents."Mere fact that certain evidence is important per se is not in itself a sufficient ground for admitting that evidence in appeal," Justice Javed Iqbal Wani remarked.Order XLI R 27 of CPC prescribes that the parties to an appeal cannot be permitted to lead additional evidence whether in oral or documentary unless the party appealing is able to prove that, despite his best efforts, he was unable to produce the evidence when the trial court issued the decree being appealed or if an appellate court requires a document be produced or a witness be questioned in order to reach a decision or if the appellate court requests the production of any documents or the cross-examination of any witnesses for any other substantial cause.The bench was hearing a plea in terms of which the petitioner had invoked the supervisory jurisdiction of the Court for setting aside order of Additional District Judge rejecting its Order XLI Rule 27 application.The case set up by the plaintiff/predecessor-in-interest of the petitioners before the trial court related to securing of an injunction against the predecessor-in-interest of the defendant/respondents contending that the plaintiff had secured possession and ownership of subject land on the strength of an agreement to sell executed in his favour way back in the year 1980.The defendant on their part had contended that they are in possession and ownership of the subject land together with a two storied residential shopping complex on the strength of a sale deed. Trial court had dismissed the suit, which came to be questioned in appeal by the petitioner/plaintiff and it was during the pendency of the said appeal that the plaintiff-appellant filed an application before the Court below for placing on record agreement to sell dated Feb 05 1980 and also to adduce the evidence to prove the same while invoking the provisions of Order XVI Rule 27 of the CPC.The Court had dismissed the application primarily on the ground that the application filed does not qualify the test and parameters fixed under Order XVI Rule 27 of CPC and it was this order which was being impugned before the bench. Adjudicating upon the matter Justice Wani observed that a bare perusal of Order XVI Rule 27 of CPC is amply clear that for invoking the said provision, the parameters set out therein have not only to be set up but also fulfilled. Pointing out to mismatch between the contents of the plaint and the application filed by the plaintiff/appellant before the Court below, the bench observed that the petitioner/plaintiff while placing reliance on the said agreement to sell had averred that a copy of the same is annexed with the plaint, whereas, in the application seeking to adduce additional evidence, it was being averred that the said document could not be produced earlier by the plaintiff/appellant as he passed away during the pendency of the appeal and was seriously ill prior to his death.Emphasising that Rule 27 of Order XLI of the CPC allows parties to an appeal to lead additional evidence only under certain conditions, Justice Wani observed that the plaintiff's application did not meet the requirements of the Rule and did not provide any valid reasons for why the agreement to sell could not be produced earlier, this when the plaintiff had previously admitted to being in possession of the agreement to sell during the course of their cross-examination before the trial court.The bench explained that the inadvertence as pleaded by the petitioners herein cannot be construed as a substantial cause within the meaning of Rule 27 of Order XLI of the CPC. Referring to parameters prescribed by the apex court for the courts to exercise the supervisory jurisdiction in Shalini Shyam Shetty and anr vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Court declined intervention and dismissed the petition for being devoid of any merit. Case Title: Mohammad Maqbool Regu and ors Vs Hilal Ahmad & Ors. Citation: 2023 LiveLaw (JKL) 71Coram: Justice Javed Iqbal Wani Counsel For Petitioner: Mr. Mohd. Ayoub Bhat, Advocate with Ms. Mehjabeena, AdvocateCounsel For Respondent: Mr . Manzoor A. Dar Advocate.Click Here To Read/Download Judgment

Inadvertence To Produce Document Not Substantial Cause To Invoke Order XLI Rule 27 CPC: Jammu & Kashmir High Court

Basit Amin Makhdoomi

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