MADAN LAL Vs. MALA RAM 7

JUDGEMENT

(1.) THIS appeal is directed against the order dated July 27, 1991, passed by the Additional Civil Judge, Ratangarh, by which the learned Additional Civil Judge allowed the three applications dated 16-1-86, 21-4-86 and 4-3-91, filed by Mala Ram and the application dated 16-7-87 filed by Madan Lal under Order 41 rule 27 C. P. C and allowed to take four documents on record. The learned Additional Civil Judge allowed the appeal, set-aside the decree and judgment dated 15-3-85, passed by the learned Munsif and Judicial Magistrate, First Class, Ratangarh, and remitted the case to the trial Court for deciding it afresh after taking on record the documents filed by the plaintiff.

(2.) PLAINTIFF Mala Ram filed a suit in the Court of the Munsif and Judicial Magistrate, First Class, Ratangarh, against the defendant for eviction and arrears of rent. The suit was filed on the basis of reasonable and bonafide necessity and the default in payment of rent. The suit was contested by the defendant Madan Lal, who denied the averments made in the plaint. The learned Munsif, after trial, came to the conclusion that no default has been committed by the defendant and the plaintiff failed to prove any reasonable and bonafide necessity with respect to the suit property. Dissatisfied with the decree and judgment dated September 15, 1985, passed by the learned Munsif and Judicial Magistrate, Ratangarh, the plaintiff preferred an appeal before the District Judge, Churu, which was transferred for disposal to the Court of the Additional Civil Judge, Ratangarh. During the pendency of the appeal, three applications were moved by the appellant-plaintiff on 16-1-86, 21-4-86 and 4-3-91, under Order 41 rule 27 C. P. C. for taking the additional evidence on record, which he could not produce inrpite of the exercise of due diligence. The learned Munsif allowed all the three applications filed by the plaintiff-appellant and ordered for taking the documents on record. By the same order, without considering the merit or de-merit of the case, the learned Additional Civil Judge set-aside the decree and judgement passed by the trial Court and remitted the case to the trial Court. The documents which have been ordered to be taken on record are four in number. The first document is the agreement between Jaichand Lal and Mala Ram, which is dated 14-12-77. This agreement was arrived at between the plaintiff and his brother Jaichand Lal, which he could not produce inspite of due diligence as the document was with Jaichand Lal and on account of differences between him and his brother, Jaichand Lal could not give the document to him and, therefore, he wants to produce the same at this stage. This documents was admittedly in the knowledge of the plaintiff and a specific plea was taken in the written statement, also, but, the document could not be produced. The document, which was admittedly in the knowledge of the plaintiff and he was the signatory to that document, was not produced earlier and he cannot be allowed to produce that document at the later stage during the course of the appeal merely to fill-up the gaps left - out by the party during the trial. Order 41 rule 27 C. P. C. never meant o fill-up the lacuna or the gaps left-out by the parties during the trial. The party can be permitted to lead additional evidence which inspite of due diligence could not be produced by him and which is necessary for the proper decision of the case. The document which was in the knowledge of the plaintiff, if he could not produce the same on account of his negligence then he cannot be permitted to produce the same later on. The learned Civil Judge was, therefore, not justified in taking this agreement dated 14-12-87 on record.

(3.) THE next question, which requires consideration is that when once the documents were taken on record, the learned lower Court was justified in setting-aside the decree and judgment passed by the trial Court without applying its mind to the merit of the case. THE learned lower appellate Court should have considered the material on record and only after considering the case on merit, it could have dismissed or allowed the appeal as it stands. While exercising the powers under Order 41 rule 27 C. P. C. the learned lower appellate Court can keep the appeal pending before him or he can directed the trial Court or any other Court subordinate to him, to take such evidence as is required under the law in connection with the new documents taken on record or he himself can record the evidence of the witnesses desired to be examined by the appellant. THE procedure adopted by the learned lower Court quashing and setting aside the decree and judgment and remitting the case for taking the fresh evidence after taking the documents on record, is wholly uncalled-for. THE learned lower appellate Court should have strictly followed the procedure laid down under Order 41 rule 27 C. P. C. and should not have ordered for fresh trial. THE order passed by the learned lower Court, therefore, deserves to be quashed and set-aside.