BHAWANI PRASAD Vs. HAKIMULLAH

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiff-appellant against the defendants-respondents for a permanent injunction directing the defendants not to interfere with the re-construction of the southern wall of the plaintiffs house as shown in a sketch map annexed to the plaint. The first Court took the evidence of the parties and made a local inspection. On the basis of this local inspection it decreed the plaintiff's claim. On appeal to the Additional Subordinate Judge of Bulandshahr the appellant requested the lower appellate Court to appoint a commissioner to make an accurate map and report. This request was granted. The lower appellate Court found the commissioner's map and report in conflict with the inspection note of the Munsif, and, accepting the commissioner's map and report as correct, came to a conclusion different from that arrived at by the first Court. The main ground on which the present second appeal is filed is that the lower appellate Court was not justified in appointing a commissioner and relying on his report as additional evidence without recording reasons therefor.

(2.) Reliance is placed on Order 41, Rule 27 of the Civil P.C., which states that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But if (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate Court may allow such evidence or document to be produced, or witness to be examined.

(3.) Sub-Rule (2) requires that wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for it's admission.