SHADAB KHAN @ BITTU KHAN Vs. MD. MINHAJ ALAM

JUDGEMENT

(1.) In this writ petition, the petitioners have prayed for setting aside the order dated 8.2.2007 passed by learned Vth Additional District Judge, Giridih in Title Appeal No. 100 of 1988, whereby learned lower appellate Court has allowed the respondents' petition for additional evidence, filed under Order XLI, Rule 27 of the Code of Civil Procedure.

(2.) The grievance of the petitioners is that the said petition has been allowed ignoring the requirement of Order XLI. Rule 27, CPC. The appellants-petitioners failed to show that in spite of exercising due diligence, that evidence was not within their knowledge or could not, after exercise of due diligence, be produced by them, in the trial Court. Learned Court below overlooking the requirement of law has allowed the petitioners' petition.

(3.) Learned counsel, appearing on behalf of the petitioners, submitted that the impugned order is illegal and wholly without jurisdiction. The same has been passed without taking into consideration that the appellants failed to make out and establish that he had exercised due diligence, but the said document, which is sought to be produced by way of an additional evidence, was not within their knowledge or could not be produced by them in course of trial.