RAIS AHMAD Vs. SATPAL SINGH CHHABRA

JUDGEMENT

(1.) Heard Sri Ashish Kumar Singh learned counsel for the plaintiff petitioner and Sri Swetashwa Agarwal who has appeared on behalf of both the defendant respondents. Since all the parties are represented with the consent of learned counsel for the parties this writ petition is being decided finally today itself.

(2.) This writ petition is directed against the order dated 23.07.2013 passed by the District Judge, Saharanpur in Civil Appeal no. 05 of 2013 (Satpal Singh Chhabra & Another Vs Rais Ahmad) whereby the appellate court at the appellate stage has allowed the Application Paper no. 34-C (1) filed under Order XLI Rule 27 CPC by the defendant appellant no. 1 to produce defendant appellant no. 2 Pawandeep Singh as a witness in this case.

(3.) Learned counsel for the petitioner has submitted that the provisions of Order XLI Rule 27 CPC are not meant to be exercised by the appellate court for the purpose of permitting the appellant to fill up the lacuna in his case after judgment of the Trial Court when he had sufficient opportunity to produce such evidence before the Trial Court itself. He states that the defendant appellant no. 2 Pawandeep Singh was a defendant of the suit but he stayed mute and he did not come forward to give his evidence before the Trial Court therefore the mere fact that at the appellate stage the Application 34-C (1) of the defendant appellant no. 1 namely Satpal Singh to call the defendant appellant no. 2 Pawandeep Singh as a witness is an attempt to fill in the lacuna of the defendants case after judgment has been passed by the Trial Court. He further states that the reason given by the defendant appellant no. 1 for moving the application under Order XLI Rule 27 CPC was that his earlier counsel at the trial stage did not advise him to produce the defendant appellant no. 2 as witness but at the appellate stage his other counsel advised him of this lacuna and hence he has moved the application. Learned counsel for the plaintiff petitioner submits that such was not permissible under Order XLI Rule 27 CPC and hence the impugned order is liable to be set aside.