MOHAMMAD HANIF QURESHI Vs. KAILASHCHAND

JUDGEMENT

(1.) The present applicant Hazi Mohammad Hanif Qureshi filed a civil suit in the Court of Civil Judge, Class-II, Sakti. The said civil suit was registered as Civil Suit No. 86-A/1993. In the said suit, the plaintiff claimed a declaration, a decree for possession, mesne profits etc. The non-applicants/defendants contested the suit on all possible grounds inter alia pleading that the sale-deed executed in favour of the plaintiff was illegal. They, however, did not plead that the sale deed was executed by a minor in favour of the plaintiff.

(2.) After recording the evidence and hearing the parties, the Trial Court dismissed the suit. Being aggrieved by the said dismissal, the plaintiff took up the matter in the appeal. In the said appeal, the defendant Nos. 1 and 2 made an application under Order 41, Rule 27, CPC and filed a certificate showing that the date of birth of the vendor of the plaintiff was 11-7-1960, In the said application, it was further contended that the document was necessary to be taken on records as additional evidence. The said application was opposed by the plaintiff, but the Appellate Court by its order dated 22-3-2001 granted the application, cast an additional issue, remitted the matter to the Trial Court and required the Trial Court to submit the evidence and its findings before the Appellate Court. The plaintiff being aggrieved by the said order has filed this revision petition.

(3.) Shri Prashant Mishra, learned counsel for the applicant has challenged the order on two counts, firstly that the application could not be allowed without hearing the parties on the merits of the matter and secondly that in absence of the pleadings relating to minority of the plaintiffs vendor, an enquiry into the said minority of the plaintiffs vendor could not be directed by the First Appellate Court. According to him, an application under Order 41 Rule 27 can be allowed in particular contingencies as provided under Rule 27 of the Order 41 and in absence of the pleadings even if the evidence is brought on record the same cannot be considered. Contending contrary to the said submission, Shri Shrivastava, learned counsel for respondent Nos. 1 & 2 submits that the defendants had clearly stated in their written statement that the sale deed executed in favour of the plaintiff was illegal, therefore, the said plea would include the question of minority of the vendor of the plaintiff. He also submits that if the Court is of the opinion that admission of the additional evidence is required by the Court for just and fair disposal of the suit, then, the Court can admit such evidence on record.