RAMCHANDRA @ SRIRAM Vs. BALKISHAN

JUDGEMENT

(1.) THIS civil second appeal under Section 22 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short 'the Act of 1950' hereinafter) r/w Section 100 of Code of Civil Procedure (for short 'the Code' hereinafter) is directed against the judgment and decree dated 17.5.2008 passed by Additional District Judge No. 2, Jodhpur (for short 'the first appellate court' hereinafter) in Civil Appeal Decree No. 108/07 whereby the appeal filed by the appellants defendants against the judgment and decree dated 23.11.2004 passed by Additional Civil Judge (Jr. Div.) No. 2, Jodhpur (for short 'the trial court' hereinafter) in Civil Original Suit No. 34/01, was dismissed.

(2.) DURING the pendency of the appeal, an application being I.A. No. 12861/08 came to be filed by the appellants defendants under Order 41 Rule 27 r/w Section 151 of the Code seeking to take on record the certified copy of the Voter List .

(3.) LEARNED Counsel appearing for the appellants contended that the certified copy of the Voter List issued by the Election Officer shows the names of Vijay Kumar and Ramchandra to whom the respondent plaintiff alleged to be subtenant or to whom the rented premises have otherwise been parted with the possession by the respondent No. 2 Prakash. Learned Counsel for the appellant -applicants contended that the Voter List annexed with the application showing names of Vijay Kumar and Ramchandra & their his family members would make out a case that they had been residing since long and therefore, he submits that the application under Order 41 Rule 27 r/w Section 151 of the Code be considered and decided at the time of hearing of the appeal on merit. Learned Counsel for the appellant -applicants has relied on a decision of Hon'ble Supreme Court in North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (Dead) By LRs. : (2008) 8 SCC 511 wherein Hon'ble Supreme Court while considering the provisions of Order 41 Rule 27 and Sections 100 and 107 of the Code held that the High Court was bound to consider the application under Order 41 Rule 27 CPC before taking up the appeal on merits. The question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits. The appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "any other substantial cause". Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted, but Section 107 CPC which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC.