ABUJAR LARI Vs. RAMPATI

JUDGEMENT

(1.) This petition has been filed challenging the order dtd. 15/7/2025 passed by Additional District and Sessions Judge/ F.T.C. I, District- Deoria in Misc. Appeal No. 9 of 2025 allowing the Application No. 29 C filed by appellant before the court below to take on record the documents annexed alongwith Paper No. 29C in appeal.

(2.) Facts in brief are that plaintiff-respondents first set instituted original Suit No. 54 of 2024 for the relief of permanent prohibitory injunction restraining the defendants from interfering with the possession of the plaintiff-respondents of the property in dispute described in the plaint. Along with the suit, plaintiff-respondents also filed an application for interim injunction under Order XXXIX, Rules 1 and 2, C.P.C. being application No. 6C. The said applica-tion filed by the plaintiff-respondents was rejected by the trial court i.e., Civil Judge (Senior Division) Court No. 18, Deoria by order dtd. 18/1/2025. Being aggrieved, plaintiff-respondents filed Misc. appeal No. 9 of 2025 under Order XLIII, Rule 1(r)Â of C.P:C. (Rampati and others v. Abujar Lari and others). During the pendency of the appeal, plaintiff-respondents filed an application (paper No. 29 C) dtd. 27/3/2025 alongwith an affidavit before the lower ap-pellate court in Misc. Appeal No. 9 of 2025 under Order XLI, Rule 27 for filing additional evidence in the miscellaneous appeal. The petitioner who was the respondent in the appeal filed his detailed objections to the application Paper No. 29C filed by the plaintiff-respondents. The lower appellate court by judg-ment and order dtd. 15/7/2025 allowed the application filed by the plain-tiff-respondents under Order XLI, Rule 27 of C.P.C. and permitted the docu-ments annexed alongwith the application to be taken on record in miscellaneous appeal. Hence, the present writ petition.

(3.) Contention of learned counsel for the petitioner is that the order passed by the lower appellate court is erroneous. The provisions of Order XLI, Rule 27 will not apply in an appeal filed under Order XLIII, Rule 1(r) of C.P.C. It has been contended by counsel for the petitioner that the provisions of Order XLI applies only to the appeals filed against the decree and not in the appeals filed against the orders. It has also been submitted by counsel for the petitioner that even otherwise the Order XLI, Rule 27 of C.P.C. contemplates three contingencies under which additional evidence can be admitted by the court of appeal and in present case, no such contingency as contemplated under Order XLI, Rule 27 of C.P:C. exists and therefore, the lower appellate court has erred in law in allowing the application Paper No. 29C. Learned counsel for the peti-tioner further contended that in interlocutory proceedings for interim injunction, the trial court on the material placed before it must be in position to entertain a tentative opinion that the plaintiff has shown prima facie case on the date of the suit and that the appellate court in such cases should examine only two questions, one whether the opinion of the trial court is fairly possible on the material placed before it and two, whether on that finding the trial court may be said to have exercise its discretion properly in all the circumstances of a case in granting or refusing to grant injunction. There can be no question of additional evidence being adduced at the appellate stage.