UNION OF INDIA UOI Vs. MOOL NARAIN

JUDGEMENT

(1.) This is an application under Order 41 Rule 27 of the Code of Civil Procedure praying that certain additional evidence specified in the schedule attached to the plaint be admitted at this stage. The application has been given in connection with First Civil Appeal No. 59 of 1945. This is an appeal filed by the plaintiff whose suit for possession has been dismissed by the trial court. In the suit the plaintiff claimed possession of certain land the exact area, the boundaries and the numbers of plots over which the plaintiff claimed possession, were not specified in the plaint. The defendant accordingly, took an objection on this ground. The trial court found that the land claimed by the plaintiff was not clearly delineated by the plaintiff in the plaint nor was sufficient evidence adduced before the Court to enable it to identify the area claimed. The suit was, accordingly, dismissed. Dissatisfied with the said judgment the plaintiff has filed this appeal in this Court.

(2.) During the pendency of this appeal the present application has been presented in this Court on behalf of the appellant. Having heard the learned counsel for the applicant we are of opinion that this application should be rejected. The proceedings of the trial court indicate that the plaintiff was fully apprised of the weakness of his case in this regard. An objection on this score was also taken by the defendant, and a commissioner was appointed by the court with a view to demarcate the area in dispute. Objections were filed to the report of the Commissioner by the plaintiff. These objections were gone into and dismissed by the Court. Ample, opportunity was, therefore, given to the plaintiff in the trial court to make up the defect in the case in this regard. In spite of it, the plaintiff failed to rectify the error. At this stage it appears to be too late to allow the plaintiff to patch up the defects in the case or to fill up the lacunae in it.

(3.) The provisions of Order 41 Rule 27, C. P. C. are strict in this regard. An applicant is not entitled to file a document just because he happens to discover it at the appellate stage. Order 41, Rule 2? C. P. C. is not intended to enable a party to patchy up the lacunae in his case at the stage of appeal. The observations of their Lordships of the Privy Council in two cases reported in Parsotim Thakur v. Lal Mohar Thakur, 1931 Ali LJ 513 : (AIR 1931 PC 143) and Manmohan Das v. Kamdei, 1931 All LJ 550 : (AIR 1931 PC 175) are quite clear in this regard. In the former case their Lordships of the Privy Council observed as follows : "The provisions of Sec, 107 of the Civil Procedure Code as elucidated by Order 41, Rule 27, are not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and fill up omissions in the Court of Appeal." To the same effect are the observations in the latter case. Further in Arjan Singh v. Kartar Singh, AIR 1951 S.C. 193 it was observed as follows : "The discretion given to the appellate court by Order 41, Rule 27 to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in that rule. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it is non-existent." Wherefore the appellate court admitted additional evidence before reaching a decision that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing its judgment the order of the appellate Court was held to be bad.