KHALIQUE AHMAD SIDDIQUI Vs. ADDL DISTRICT JUDGE BAREIILY

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and the respondents. The petitioner had been a defendant in a suit which was decreed against him for specific performance. He preferred an appeal. His prayer for amendment of the writter statement was allowed and on the basis thereof 5 additional issues were framed by the Appellate Court. Four of them were on points of law and one was on a point of fact on a question whether the contract for sale was obtained by fraud and was thus a void one The petitioner pressed before the Appellate Court that the matter should be remanded back to the Court below for the decision of that issue. The matter was pending since long and as such the Court thought it proper to receive evidence on issue No. 5 in his Court itself. The petitioner relied on a decision of this Court in Second Appeal No. 659 of 1993 (Bhonu alias Nizamuddin vs. Nankull and others). The provisions of Order XL1, Rule 25, CPC have been explained in this case. A fresh look has been given to the provisions in Order 41 Rule 24 specifying the power of the Appellate Court to determine an appeal finally when evidence on record is sufficient. Admittedly from the order of the Appellate Court the evidence on record was not sufficient for the pronouncement of the judgment and further evidence was necessary. No doubt Rule 27 empowers the Appellate Court to receive additional evidence but, upon the decision relied on it is felt that when a disputed question of fact is to be determined after taking evidence of the parties, it is desirable that it should be done by the trial Judge so that a forum of appeal may not be denied to the persons aggrieved by the decision. In these circumstances, the writ petition stands allowed. The order of the Appellate Court dated 31.1.1998 requiring the evidence to be taken in the appellate Court, and to that extent only, is quashed. The Appellate Court is directed to refer issue No. 5 as framed by him to the Court below under Order XL1 Rule 25 C.P.C. and to require the trial Judge to return his verdict on that issue within the time he may like to fix. Writ Petition allowed.