RAM KISHORE Vs. KESHO RAM

JUDGEMENT

(1.) THESE are two applications made on behalf of the defendants-appellants for permission to ad duce additional evidence. Civil Misc. Ap plication No. 4805 of 1962 was filed on 16th October, 1962. Civil Misc. Applica tion No. 5358 of 1968 was filed on 4th September, 1968. These applications were filed during the pendency of a First Ap peal in this Court, which is directed against a preliminary decree for accounts in a suit for partition and accounting. By an order dated 8th September, 1971, we rejected the prayer for permission to ad duce two sale-deeds and a plaint as addi tional evidence in this Court. The defen dants-appellants wished to produce two applications dated 29th November, 1954, and 17th July, 1956, as additional evi dence. They have stated that these appli cations were not within their knowledge, and so they could not be filed in the trial Court. The appellants came to know of these applications after the institution of another suit for accounts (No. 177 of 1962) pending between the parties. The averment as to the acquisition of know ledge about these applications after the institution of suit No. 177 of 1962, has not been controverted in the counter-affi davit. There is no reason to disbelieve it. The suit out of which the present appeal arises, was decided on 25th October, 1961. It is thus clear that the appellants did not, in spite of due diligence, have knowledge of these applications at the time of the passing of the decree in this suit. The appellants are entitled to produce these documents as additional evidence.

(2.) THE plaintiffs-respondents have in their counter-affidavits sought to adduce several documents by way of rebuttal. They are entitled to lead evidence in re buttal. The documents annexed to the counter- affidavits will also be taken on re cord as evidence. The other application filed on 4th September, 1968 prays that the defendants-appellants be permitted to read in evidence the documents mentioned in it, because they are already part of the record of the suit.

(3.) IN Anmol Singh v. Hari Shan-kar .Lai, AIR 1930 All 779, a Division Bench held that under the Civil Procedure Code now in force, a suit does not termi nate by the passing of the preliminary de cree, but continues till it is finally and completely disposed' of by the passing of the final decree. Another Division Bench in Ramesh Chandra v. Ghanshiam Das, AIR 1955 All 552 observed that a decree jand defined in Section 2 (2), Civil Procedure /Code, as "the formal expression of an ad judication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit". This may be either preliminary or final. The Bench then held:-