VIJAY PAL Vs. UMED SINGH

JUDGEMENT

(1.) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dtd. 16/9/2021 (Annexure P-4) whereby an application filed by plaintiff- respondent herein under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for leading additional evidence has partly been allowed by the learned Additional District Judge, Narnaul in a pending appeal being CA/153/2019.

(2.) Brief facts relevant to the present lis are that the plaintiff- respondent herein filed a suit for specific performance of contract of sale dtd. 28/2/2011 executed by the defendant-petitioner in his favour for sale of 160/2501 share in land comprised in Khewat No.16 Khatoni No.16 measuring 125 Kanals 1 Marla as per jamabandi for the year 2005-06 situated within revenue estate of Village Madhogarh, Tehsil and District Mahendergarh. The suit was dismissed by the Trial Court vide judgment and decree dtd. 6/2/2016. Aggrieved by the same, an appeal was preferred by the plaintiff-respondent on 29/2/2016. During the pendency of the appeal, on 14/11/2019, an application was filed by the plaintiff-respondent for leading additional evidence (Annexure P-2). Vide the said application the plaintiff-respondent had sought to bring on record the following documents :

(3.) Learned counsel for the defendant-petitioner would contend that the impugned order is bereft of any reasoning and as per the law laid down in the judgment of the Hon'ble Supreme Court in the case of Malayalam Plantations Ltd. Vs. State of Kerala & Anr. [2011 (3) RCR (Civil) 609] if an application is filed under Order 41 Rule 27 CPC in a pending appeal, it is incumbent on the part of the Appellate Court to consider the same at the time of hearing it on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing on the issues involved. The learned counsel has further relied upon the observations of the Hon'ble Supreme Court in the case of Malayalam Plantations Ltd. (supra) which read as under : "11) If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41, Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case."