MD AZIM Vs. MEENA DEVI

JUDGEMENT

(1.) The petitioner, who was defendant in Title (Eviction) Suit No. 86 of 2009, is aggrieved of order dated 23.05.2014 passed in Title (Eviction) Appeal No. 86 of 2009 by which the appellant's application under Order XLI Rule 27 (1)(a) and (b) read with Section 151 CPC has been dismissed.

(2.) Title (Eviction) Suit No. 24 of 1996 was instituted by Deoki Devi, who after her death was substituted through her legal heirs and successors, for ejection of the defendant on the ground of default of payment in rent. The suit was decreed vide judgment dated 105.2009 and a decree was prepared, sealed and signed on 16.05.2009. Challenging the judgment and decree in Title (Eviction) Suit No. 24 of 1996 the petitioner has preferred Title (Eviction) Appeal No. 86 of 2009. In the pending appeal when the application of the appellant-defendant for adducing a copy of the compromise deed dated 20.07.2007 was rejected by an order dated 24.07.2010, the appellant came before this Court in W.P.(C) No. 651 of 2011. The writ petition stood allowed by order dated 10.03.2011 with a direction to the appellate court to consider the compromise deed dated 20.07.2007 at the time of hearing of Title Appeal No. 86 of 2009. The appellant has now filed an application for recall of D.W. 6 for proving the contents of the compromise deed dated 20.07.2007. This application has been rejected by the appellate court by the impugned order dated 23.05.2014.

(3.) Sub-Rule 1 to Rule 27 of Order XLI CPC mandates that the parties shall not be permitted to lead additional evidence at the appellate stage, however, there are statutory exception to this rule provided under clause-(a), (aa) and (b) of Rule 27(1) itself. In "Union of India vs. Ibrahim Uddin and Another, (2012) 8 SCC 148" , the Supreme Court has explained the procedure how the application under Order XLI Rule 27 CPC shall be dealt with. It has been held that the application under Order XLI Rule 27 CPC shall be considered at the final hearing of the appeal. This expression "final hearing" appears to have been misconstrued by the appellant-defendant to mean at any stage of the hearing; in an appeal after the parties appear the matter is posted for final hearing. It is not the first date of hearing of the appeal or midway when the application under Order XLI Rule 27 CPC shall be considered, rather it is the last date of hearing when on an appreciation of the materials on record if the appellate court comes to a conclusion that any document needs to be taken as additional evidence or a witness shall be examined, the application under Order XLI Rule 27 can be allowed.