MAHENDRA KU. Vs. KANWARLAL

JUDGEMENT

(1.) HEARD learned counsel for the parties. Perused the record.

(2.) BY this appeal the defendant-tenant has challenged the judgment and decree of the trial Court dated 18th May, 1994 and the judgment and decree of the Appellate Court dated 13th April, 2002 by which the first appeal of the appellant was dismissed by the First Appellate Court.

(3.) LEARNED counsel for the appellant vehemently submitted that the very basis of the suit is wrong and the plaintiff has filed the suit by submitting that the disputed shop is the only shop of the plaintiff whereas the appellant- tenant obtained the copies of certain documents, which show that adjoining shop to the shop in dispute is the ownership property of the plaintiff. Defendant-appellant submitted an application under order 41 Rule 27 CPC before this Court on 10th October, 2001 stating therein that after the decision by the First Appellate Court by judgment dated 13th July, 2001, the appellant- defendant obtained the certified copy of the license from the Municipal Board on 19th July, 2001 and wants to put this document in evidence. It is relevant to mention here that in entire application it has not been stated how and when the fact of having another shop by the plaintiff came to the notice of the defendant-appellant. The suit was filed in the year 1989. The trial Court decided the suit in the year 1994. Thereafter, the appeal remained pending for about more than six years and ultimately the First Appellate Court decided the appeal on 13th July, 2001. From 1989 when the litigation was pending the defendant, who is in occupation of the shop in dispute and defendant, who wants to submit the document with respect to the adjoining shop after about 13 years by submitting application under Order 41 Rule 27 CPC without disclosing the material particulars in the application and without formulating any of the grounds provided under Order 41 Rule 27 CPC, the application of the appellant then the same deserves to be dismissed only on the ground of delay. The Order 41 Rule 27 CPC permits taking on record the evidence when the party after due diligence failed to produce the evidence. Here in this case, if application itself is looked into, filed by the appellant under Order 41 Rule 27 CPC, then it appears that the appellant wanted to suppress the facts, rather to disclose the facts, otherwise there was no reason for appellant for not disclosing the date on which he got the knowledge of the documents, which now he wants to produce. The appellant submitted an affidavit in support of the application and the requirement of affidavit is that the deponent should not only disclose the true and correct facts but should also not hide anything in the affidavit. Therefore, there is no force in the application under Order 41 Rule 27 CPC.