NARAIN DAS Vs. IIND ADDL DIST JUDGE MORADABAD

JUDGEMENT

(1.) An alleged Will was sought to be introduced under Order 41 Rule 21 in appeal No. 27 of 1993 pending before the learned Additional District Judge, IInd Court, Moradabad, arising out of a decree passed in original suit No. 207 of 1977 By an order dated 1-4-1998 passed by the learned Additional District Judge in the said appeal, the application moved in this regard was rejected. This order is under challenge in the present writ petition.

(2.) Mr. Rajesh Tandon, learned counsel for the petitioner, contends that the learned lower appellate Court had illegally exercised his jurisdiction in rejecting the said application in the facts and circumstances of the case. According to him, acceptance of additional evidence is a rule and refusal is an exception. In order to decide the question at issue such evidence should have been allowed. He relies on a decision in the case of Jaipur Development Authority v. Smt. Kailashwati Devi, 1997 SCFBRC 386 : (AIR 1997 SC 3243). He further contends that it was never known to the petitioner as to in whose custody the said Will was lying though he had disclosed in his written statement as well as in the evidence. It was only in the morning of 1-4-1988 that he came to know about the said Will from Phool Singh. Thus, this was one of the reason for which the petitioner was unable to produce the Will in the trial Court despite his due diligence. On this ground he prays that the impugned order dated 1-4-1998 should be set aside.

(3.) Mr. K. K. Arora, learned counsel for the opposite party on the other hand contends that the application under Order 21 Rule 27 does not contain any of the ingredients as provided in sub-rule (1) of Rule 27 of Order 41. He further contends that it is not supported by any affidavit, by which it can be ascertained that the statement which are being advanced seeking to bring about the ingredients of sub-rule (1) of Rule 27, Order 41, cannot be accepted. He next contends that the said application did not contain any of the ingredients mentioned in sub-rule (1) of Rule 27, Order 41. Therefore, the order passed by the learned appellate Court was justified.