SAPAM IBOMCHA SINGH Vs. SAPAM NINGOL IBEMA DEVI

JUDGEMENT

(1.) Heard Mr. K. Kerani, learned senior counsel for the petitioner and Mr. A. Nilamoni, learned senior counsel for the respondent.

(2.) The original suit bearing No. 25/93/ 10 of 1995 was decreed in favour of the plaintiff (respondent herein). Being aggrieved, the defendant (petitioner herein) preferred first appeal (F.A. 1/2002) which is pending before the learned District Judge, Manipur East. During the pendency of the first appeal, the plaintiff-respondent filed a petition before the learned first appellate Court under Order XLI, Rule 27 of the Code of Civil Procedure for taking some documentary evidence as additional evidence. The'appellate Court after hearing the parties allowed the plaintiff-respondent to produce the documentary evidence as prayed for and remitted the case to the learned trial Court for recording additional evidence, of course the defendant-appellant was also allowed opportunity to produce rebuttal documentary evidence. Being aggrieved, the defendant-appellant filed this revision petition under section 115 of the CPC contending, inter alia, that the learned appellate Court exercised the jurisdiction not vested in it and in exercising jurisdiction, the learned appellate Court committed material illegality in view of the provision of Order XLI, Rule 27(1) of the CPC.

(3.) The learned appellate Court shall not allow either of the parties to produce additional evidence whether oral or documentary in the pending appeal unless either of the circumstances mentioned in clauses (a)(aa) and (b) of Order XLI, Rule 27(1) is fulfilled. Clause (a) permits the learned appellate Court to allow additional evidence if it could be pointed out that the learned trial Court refused to admit any evidence which ought to have been admitted. Under clause (aa), a party to the appeal may be allowed to produce additional evidence if he/she could satisfy the learned appellate Court that "notwithstanding the exercise of due-diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him" during trial. Under clause (b) , the learned appellate Court can require any document to be produced or any witness to be examined to enable to pronounce the judgment and/or for any other substantial cause.