PALTOO Vs. SUKHIYA

JUDGEMENT

(1.) THIS is Defendant's second appeal in a suit for permanent injunction restraining the Defendant appellant from interfering with the plaintiff's possession over the land in dispute. Earlier two suits being suit No. 207 of 1968 and 362 of 1975 were also filed and they were decided in favour of plaintiff. Both the courts below have decreed present suit.

(2.) LEARNED Counsel for the appellant urged that some additional evidence was filed before the lower appellate court after exercising power under Order 41 Rule 27 of the Code of Civil Procedure (for short the Code) but that additional evidence has not been mentioned in the judgment of the lower appellate court. Reliance was placed on the provision of Rule 29 of Order 41 of the Code, which is extracted below.

(3.) IT may be stated that the additional evidence itself can not be taken unless the appellate court has examined the entire evidence as it stands and when some inherent lacuna or defect becomes apparent but certainly not when a discovery is made out side the court of a fresh evidence and the application is made to import it. Before relying upon the additional evidence the procedure under Order 41 Rule 29 has to be followed i.e. the appellate court has to specify in the proceedings the points on which the additional evidence should be confined. But this was not done. The additional evidence so accepted can be relied upon only after following the procedure under Order 41 Rule 29. As this was not done the additional evidence was correctly not relied upon.