LAXMINARAYAN DEEPCHAND MAHESHWARI Vs. BHIKU PUNJAJI LEWA

JUDGEMENT

(1.) [His Lordship after setting out the facts of the case, proceeded.] Two questions are raised by Shri Mandlekar appearing on behalf of the appellants in this appeal. The first question is that exh. D -29 should not have been permitted to be brought on record and the second question, which is the only substantial question, which has been argued, is that additional evidence could not be admitted in a second appeal since, according to the learned Counsel, the provisions of Order XLI, Rule 27, Code of Civil Procedure, are not applicable to second appeals.

(2.) SO far as the first contention is concerned, we have already pointed out that exh. D -29 which was the original Gat -book was sent for in order to prove one of the documents which was1 allowed to be produced by Deshmukh J. as additional evidence. This was the right hand page of the Gat -book of which only the left hand page was filed on record. This document which was produced with the application as additional evidence was held to be proved, but by agreement of parties the original Gat -book exh, D -29 was permitted to remain on record. It would not, therefore, be correct to say that any document in addition to those which were permitted by Deshmukh J. to be produced, have now been allowed to be filed by the defendants. It was at the request of the parties that exh. D -29 was allowed to be kept on record for the purpose of verifying the correctness of the record made in the right hand page of exh. D -29 which was filed as additional evidence. The certified copy of exh. D -29 is already accepted as exh. 28 and when exhs. 24 and 28 have to be considered together both of them could be looked at the same time from the book exh. 29 of which both these documents are copies. The first contention must, therefore, be rejected.

(3.) SECTION 100 of the Civil Procedure Code deals with the jurisdiction of the High Court in a second appeal and it is worded as follows: 100. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely: - -