MD ANWAR ALAM KHAN Vs. ZAIBUN NISA

JUDGEMENT

(1.) In view of the order proposed to be made, no previous service is required to be effected on the opposite parties. The petitioners will, however, remain obliged to forward copies of the petition along with copies of this order to the opposite parties. The petitioners have obtained a decree for eviction and complain of the appellate court in seisin of the title appeal entertaining the documents sought to be filed along with an application under Order XLI Rule 27 of the Code with an observation that such application would be taken up prior to the hearing of the appeal.

(2.) The petitioners seek to assert that, ordinarily, an application under Order XLI Rule 27 is not taken up prior to the hearing of the appeal; for, upon hearing the appeal would the appellate court be able to make up its mind whether the additional evidence sought to be relied upon was necessary to conclusively pronounce upon any matter in issue.

(3.) Since it appears from the orders impugned dated September 4 and 5, 2014 that the trial court has adopted an erroneous procedure of receiving the documents and posting the application for additional evidence ahead of the appeal, it will be open to the petitioners herein to urge whatever grounds that may be available to persuade the appellate court to take up the application for additional evidence along with the appeal.