RAJIV KUMAR Vs. BHARAT PARKASH

JUDGEMENT

(1.) THIS petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') is directed against the order dated 29.3.2003 passed by the Additional District Judge, Barnala, dismissing the application of the plaintiff-petitioner filed under Order XLI Rule 27 of the Code. The plaintiff-petitioner has applied for adducing of additional evidence by producing a document allegedly 76 years old showing the mutation of inheritance of Wadhau son of Pirthi great grandfather of the plaintiff- appellant.

(2.) BRIEF facts of the case necessary for deciding the controversy raised in the instant petition are that the plaintiff-petitioner filed a suit for declaration claiming that the suit property is ancestral coparcenary property and defendant-respondent No. 3 Jaswant Rai had no right to sell it. The pedigree table shows that property in the hands of Raja Ram was coparcenary and it has further been inherited by defendant-respondents 1 to 4 from Raja Ram. The pedigree table as supplied by the plaintiff-petitioner reads as under :-

(3.) AFTER hearing learned counsel for the plaintiff-petitioner, I am of the considered view that this petition deserves to be allowed because under Order XLI Rule 27 of the Code, the question as to whether the additional evidence sought to be produced is necessary to enable the court to pronounce judgment for any other substantial cause, can more effectively be decided at the stage when the appeal is heard on merits. Hearing of the application when deciding the appeal, would show the necessity of additional evidence and its effect on the issues raised before the Courts. In cases where the appellate court feels that the additional evidence produced before the Court would enable it to pronounce the judgment satisfactorily to the mind of the Court, then it is more appropriate to decide the application at the stage when the appeal is decided. In K. Venkataramiah v. A. Seetharama Reddy and others, AIR 1963 SC 1526 relying on the judgment of the Privy Council in the case of Manmohan v. Mt. Ramdei, AIR 1931 Privy Council 175, a Constitution Bench of the Supreme Court observed as under :-