IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Zafar Ahmed

Civil Revision No. 3562 of 2016

Md. Maksudur Rahman Howlader and others Defendant-appellant-petitioners

-Versus-

Nishit Ranzon Das and others

Opposite parties Mr. Mintu Kumar Mondal

...For the petitioners Mr. Md. Rafiqul Islam

... For the opposite party No. 1

Heard on: 11.10.2024 and 25.11.2024 Judgment on: 03.12.2024

The instant civil revision is directed against the order dated 02.05.2016 passed by the Special District Judge, Barishal in Title Appeal No. 06 of 2010 rejecting the application filed by the appellants under Order 41 rule 27 read with Section 151 of the Code of Civil Procedure (CPC) and also rejecting the application for recalling DW- 1. This Court, on 23.10.2016, issued a Rule.

Defendant-appellants are the petitioners. Title Suit No. 87 of 2003, in which the petitioners and others were defendants, was heard

and disposed of analogously with Title Suit No. 82 of 2003 by the Joint District Judge, 1st Court, Barishal on 12.02.2009. Title Suit No. 87 of 2003 was decreed and Title Suit No. 82 of 2003 was dismissed. Challenging  the  decree  passed  in  Title  Suit  No.  87  of  2003,  the present petitioners preferred Title Appeal No. 67 of 2009, which was subsequently renumbered as Title Appeal No. 06 of 2010.

Today, when the matter was taken up for judgment, the learned Advocate appearing for the petitioners filed a supplementary affidavit annexing the plaint, written statement, judgment and decree passed by the trial Court in Title Suit No. 87 of 2003.

During pendency of the title appeal, the appellant-petitioners filed an application on 15.04.2014 before the appellate Court below for recalling DW-1. The relevant portion of the said application is reproduced below:

DW-1  

Re call

DW-1

Re call

DW-1 Re call

Thereafter,  the  defendant-appellants  on  12.11.2015  filed another application before the appellate Court on the same subject matter i.e. recalling DW-1 and for permission to produce additional evidence. The relevant portion of the said application is quoted below:

DW-1  

Re call

DW-1 Re call

The  appellate  Court  below  rejected  both  the  applications observing, inter alia:

SUBSTANTIAL CAUSE

I have heard the learned Advocates of both sides and perused the materials on record.

Mahmudul  Islam  and  Probir  Neogi  in  ‘The  Law  of  Civil Procedure’,  2nd  ed.,  vol.  2,  at  page  1880  observed,  “In  allowing additional evidence three conditions must be fulfilled: (i) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial (25 DLR 108), (ii) the evidence must have been  such  that,  if  given,  it  would  probably  have  an  important influence, though not decisive, on the result of the case (AIR 1931 PC 143, AIR 1957 Nag 15), and (iii) the evidence must be apparently credible although it need not be incontrovertible. In the absence of satisfactory reason  for non-production  of the  evidence in  the  trial Court, additional evidence should not be admitted in appeal (AIR 1915 PC 78).”

In the cases reported in 50 CWN 2(PC), AIR 1957 SC 912 and 25 DLR 108 it is held that a party shall not be allowed to put in additional evidence when the party had ample opportunity to produce and prove it in the trial Court. It is held in 8 BLT (AD) 1 that the appellate  Court  should  not  allow  additional  evidence  without sufficient explanation for not filing it at the trial stage.

In the case in hand, the defendant-appellants did not state in their applications the reasons for non-producing the evidence at the trial. They did not offer any explanation whatsoever for not filing the additional evidence at the trial stage. There is no statement to that effect in the applications filed by the defendant-appellants before the appellate Court. This being the position, the Rule fails.

In the result, the Rule is discharged.

Arif, ABO