RADA Vs. SUNDARKUNWAR

JUDGEMENT

(1.) THIS revision petition has been filed by defendant against a concurrent decision of the courts below who held that the appellant being only a Hali and not a tenant had no authority to cultivate the land against the wishes of the land holder and therefore if be has stayed thereon without the consent of the landlord, he the appellant is liable for ejectment as a trespasser under sec. 183 of the Rajasthan Tenancy Act,. Before arguing his appeal the learned counsel for the appellant filed an application under O. 41, R. 27 (i) (b) C. P. C. along with the copies of certain documents and prayed that the same may be admitted into evidence in order to facilitate a correct adjudication of the points in controversy. The scope of O. 41, R. 27 was examined in AIR 1959, Andhra Pradesh 204, A. I. R. 1959 Assam page 98 and A. I. R. 1959 Madhya Pradesh 118. It is now settled that where a party could with some delige-nce have filed all the documents sought to be filed at appeal stage in the first court, application for admitting them on appeal stage will be refused. Further the provision contained in O. 41, R. 27 cannot be utilised for plugging or filling up gaps in the evidence of a party. In A. I. R. 1959 Madhya Pradesh, 118, it was again held that "the principles for admission of additional evidence under O. 41, R. 27 (i) (b) are (i) that the discretion given to the appeal Court to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitation specified in the rule, (ii) that the legitimate occasion for the application of the rule, is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not were a discovery is made, outside of the Court, of fresh evidence and the application, is made to import it and (iii) that the true test is whether the Appellate Court is able to pronounce judgment on the material before it without taking into consideration, the additional evidence sought to be adduced. The true test laid down in Cl. (b) of O. 41, R. 27 (f) is not whether any tribunal would be unable to pronounce any judgment without production of the additional evidence but whether the mind of the Appellate Judge is in such a condition on the evidence on the record that he requires any additional documents to be examined to enable him to pronounce judgment. " Applying these well established rules of procedure on the facts of the caste, we find that the copies of the documents which are now produced before us for being admitted as additional evidence could have certainly been obtained and produced before ,the trial court or at any rate before the lower appellate court. There is no explanation forthcoming why this was not done. Further from the evidence of the parties as it stands before us, it appears to be sufficient enough to enable this court to pronounce a judgment on merits, and we do not feel ourselves handicapped in any manner from doing so. Accordingly the application filed by the appellant deserves to be rejected. The learned counsel thereafter being conscious that there was a concurrent finding of fact arrived at by courts below, after appreciating in a dispassionate manner, such evidence as was brought on record found himself incompetent to argue the case on merits. He could not however, address us on any point of law or any of the grounds mentioned in sec. 224 of the Rajasthan Tenancy Act. In the result the appeal shall stand dismissed and the decision of the courts be upheld. .