STATE OF RAJ Vs. REVTI PRASAD

JUDGEMENT

(1.) CONCURRENT findings arrived at by the learned courts below have been assailed by the State of Rajasthan and another, the appellants herein, in the instant second appeal which was filed on August 27, 1991. An application under Order 41 Rule 27 of the Code of Civil Procedure has also been submitted by the appellants today for taking the additional documents on record.

(2.) MR. Mohd. Rafiq, learned Additional Advocate General urged that since the trial court proceeded ex-parte, the appellants could not produce evidence and the suit of the plaintiff respondent was decreed. The first appellate court also did not properly appreciate the provisions contained in Order 9 Rule 7 CPC and the appeal was dismissed, therefore, opportunity to adduce evidence may be provided to the appellants in the interest of keeping the stream of justice pure and clear and findings under appeal should not be permitted to assume finality without the examination of the witnesses of the appellants.

(3.) IT is well settled that production of additional evidence under Order 41 Rule 27 is permitted only under three circumstances which are:- Where (i) the trial court had refused to admit the evidence though it ought to have been admitted; (ii) the evidence was not available to the party despite exercise of due diligence; and (iii) the appellate court required the additional evidence so as to enable it to pronounce the judgment or for any other substantial cause of like nature.