JAGTAL MAHTO Vs. SURENDRA SINGH

JUDGEMENT

(1.) This application is directed against an order refusing leave to adduce additional evidence under Order XLI, rule 27 of the Code of Civil Procedure.

(2.) It appears that the plaintiffs-petitioners filed a suit for setting aside certain sale-deeds executed by the widow of plaintiff Jaglal's father's brother on the ground that she had no right to execute the sale-deeds. The opposite party defendants alleged that her husband having appeared during his life time from his brother, the widow had the right to execute the documents aforesaid. The trial court dismissed the suit which resulted in an appeal. In the appellate court the petition under order XLI, rule 27 was filed for the purpose of taking a certified copy of a compromise petition in a land Registration case of the year, 1922 into evidence, wherein there were recitals to show the jointness between Jaglal and his father's brother. A certified copy of the said document, it is said, was tendered in evidence in the trial court. The original had been called for and a witness examined to prove the report of destruction of the original record. It appears, however, that no witness was examined to prove the execution of the document for compromise, it is said that it was due to oversight that the said document could not be marked as an exhibit. Hence, the prayer before the lower appellate court for the opportunity to bring the document on record.

(3.) The court below refused the prayer on several grounds. Firstly, it said that it appeared that there was no witness available in the trial court to prove the document; secondly, that it had not been stated in the application before the court, that the appellants were prepared to adduce oral evidence to prove the document thirdly, that the court did not require the document for pronouncing judgment fourthly, that the case was not covered by clause (i) (b) of rule 27 of Order XLI and, lastly, that the prayer could not be granted under section 151 of Code.