LALLU Vs. KALLU

JUDGEMENT

(1.) THIS is Second Appeal under section 100 of the Code of Civil Procedure by the defendants who are aggrieved by the judgment and decree dated 26.7.1989 passed by 1st Additional District Judge, Mandleshwar, in Civil Regular Appeal No. 25 -A/1989, in affirmance of the judgment and decree dated 15.4.1983, passed by Civil Judge, Class II, Barwaha, in Civil Original Suit No. 49 -A/1983, decreeing suit of the plaintiff -respondent No. 1 for declaration and injunction in respect of certain agricultural lands.

(2.) THIS appeal is admitted on following substantial questions of law :

(3.) RULE 27 of Order XLI of CPC authorises the appellate Court to allow additional evidence or document to be produced if any of the conditions specified in clause (a), (aa) or (b) is satisfied. It is well settled that an application for additional evidence under Rule 27 has to be, considered along with hearing of the appeal on merits. The reason is obvious. Additional evidence can be admitted only when the appellate Court requires it i.e. finds it needful to enable it to pronounce judgment or for any other substantial cause. The legitimate occasion for exercise of this discretion can arise only when on an examination of the evidence as it stands the Court finds that such an additional evidence or document is required to be produced to enable it to pronounce judgment or for any other substantial cause. In the instant case, it was thus obligatory on the Court below to have considered the prayer of the appellants for additional evidence in the light of the guidelines provided under Rule 27 and taking into consideration merits or demerits of the appeal. Omission to pass any order on the application is clearly an instance of non -exercise of jurisdiction vested in the first appellate Court below and which has deprived the appellants their right to have considered their prayer for additional evidence and decided by the appellate Court below. Non -consideration thus vitiates the judgment passed in appeal and the same is therefore liable to be set -aside on this count alone.