Kailash Chaudhary v. Smt. Kaushalya Devi And ANR

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.5137 of 2016 ====================================================== Kailash Chaudhary .... .... Petitioner/s

Versus

Smt. Kaushalya Devi & Anr .... .... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Bindeshwar Prasad Singh For the Respondent/s : Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 30-03-2016 Heard learned counsel Mr. Bindeshwar Prasad Singh for the petitioner.

By the order dated 28.01.2016 the learned Additional District Judge-VI, Aurangabad rejected the application filed by the petitioner under Order XLI Rule 27 CPC in Title Appeal No.38 of 2011/51 of 2015.

From perusal of the order, it appears that the court below considered the fact that the petitioner has not mentioned that what is the relevancy of the documents and what are those documents and further has also considered the provision and principles for consideration under Order XLI Rule 27 CPC and thereafter rejected the application filed by the petitioner. The Hon'ble Supreme Court in the case of Union of India Vs. Ibrahim Uddin & Anr, 2013 (1) PLJR 48 SC has held that the general principle is that the appellate court should not

Patna High Court CWJC No.5137 of 2016 (2) dt.30-03-2016 travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The parties are not entitled as of right to the admission of such evidence. Thus, provision does not apply when on the basis of evidence on record the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the Court and is to be used sparingly. In view of the above settled proposition of law and when the lower appellate court has exercised judicial discretion I do not find any merit in the application filed under Article 227 of the Constitution of India. Thus, this writ application is dismissed. (Mungeshwar Sahoo, J) Harish/- U