GINDIABAI Vs. ELFERT LTD. COMPANY AND OTHERS

JUDGEMENT

(1.) SHRI A. K. Jain, Adv. for the petitioner. Shri Kishore Shrivastava, Sr. Adv. for respondent Nos. 3 and 4. Petitioner has challenged order dt. 3 -10 -2005 passed by First Additional District Judge, Katni in Civil Appeal No. 40 -A/04 by which the Appellate Court decided two applications filed by the petitioner, one under Order 6, Rule 17, Civil Procedure Code seeking amendment in the plaint, another application under Order 41, Rule 27, Civil Procedure Code seeking permission of the Court for producing additional evidence.

(2.) RESPONDENTS contested the application on the ground that the proposed amendment which is sought by the petitioner before the Appellate Court was also prayed before the trial Court and the trial Court vide order dt. 27 -1 -2004 (in the impugned order it is mentioned as 22 -1 -2004) allowed the application and the trial Court permitted the plaintiff to incorporate the aforesaid pleadings in the plaint. When the trial Court itself has allowed the same amendment, there was no question of repeating the aforesaid pleadings by filing application before the Appellate Court. So far as the application filed under Order 41, Rule 27, Civil Procedure Code is concern, it was misconceived as the documents were already produced before the trial Court and were marked as exhibits in the evidence but were not duly proved in the trial and to fill up the lacuna, the aforesaid document cannot be admitted as additional evidence before the Appellate Court.

(3.) THE Appellate Court by the impugned order found that the proposed amendment as prayed in the application was prayed before the trial Court and it was allowed and the plaintiff had incorporated the aforesaid amendment in the pleadings. In these circumstances, there is no necessity for allowing the aforesaid application. This factual position has not been disputed by the petitioner before this Court, so in this part of the order there is no error and needs no interference.