SHAYAM LAL Vs. VIDYA SAGAR

JUDGEMENT

(1.) The defendants/petitioners have challenged the order passed by the learned Additional District Judge, Ghumarwin dismissing the applications of the defendants under Order 41 Rule 27 of the Code of Civil Procedure for leading additional evidence as also under Order 14, Rule 5 of the Code of Civil Procedure (hereinafter referred to as the CPC) for framing additional issues. It has been pleaded that the defendants' predecessor-in-interest had also filed counter claim with the written statement to which no written statement was filed by the plaintiffs. The plaintiffs had challenged the revenue entries in the plaint claiming that the defendants were not tenants over the suit land. The case of the defendants was that the revenue record attached with the application establishes their claim. Judgment of the learned Sub Judge Bilaspur camp at Ghumarwin, in case No. 248/1 of 1995 decided on 30.1.1999 inter se between the parties to the suit also supported their claim. They could not produce all these documents for the reasons that they were simpleton villagers and they were not aware about the intricacies of the law etc. The learned Court dismissed the application primarily on the ground that the defendants seek to fill in lacuna which course of action is not available to the defendants.

(2.) I have heard the learned Counsel appearing for the parties and have also gone through the documents filed on the record of the case. The principle governing the additional evidence in appeal is by now well established. It is well settled that no party can be allowed to fill in lacuna in appeal. What I find from the pleadings is that the usual rubric of illiteracy is being used by the defendants to urge that they could not produce the documents in the nature (a) revenue record and (b) judgment of the trial Court.

(3.) In Badi Ram v. M/s. R.S. Company, 2002 AIR(HP) 150. This Court while dealing with the provisions of Order 41, Rule 27, CPC holds: