PARMESHWAR KUMBHKAR Vs. SHYAMAPADA KUMBHKAR

JUDGEMENT

(1.) The petitioner who was defendant in Title Suit No.262 of 2011 is aggrieved of order dated 08.06.2017 passed in Title Appeal No.101 of 2015 by which his application under Order XLI Rule 27 CPC has been rejected.

(2.) Mr. Ramchander Sahu, the learned counsel for the petitioner submits that the appellate court has ample powers to take additional evidence on record.

(3.) No doubt, under sub-rule 1 (b) to Rule 27 Order XLI CPC the appellate court can permit additional evidence for any substantial cause, but this power has to be exercised in the context of the limitations provided under Rule 27 CPC. It provides that parties shall not be permitted to adduce additional evidence at the appellate stage. Admittedly, the defendant did not adduce evidence in Title Suit No.262 of 2011, though he had filed a written statement of his defence but a written statement cannot take the form of evidence led by the defendant in the suit. In "Union of India Vs. Ibrahim Uddin and Another, (2012) 8 SCC 148" the Supreme Court has held that the application under Order XLI Rule 27 CPC shall be considered at the stage of final hearing of the appeal. However, in a case like this in which the defendant has failed to lead evidence in the suit, on a technical mistake committed by the appellate court, that is, the stage when the aforesaid application should have been heard, interference with the impugned order dated 08.06.2017 is not warranted.