MANTU MODAK Vs. FATIK CHANDRA MODAK

JUDGEMENT

(1.) The instant writ petition has been filed under Article 227 of the Constitution of India wherein the order dated 15.09.2015, passed in Title Appeal No. 28 of 2008 has been assailed whereby and whereunder the application filed under Order XLI Rule 27 of the Code of Civil Procedure, has been rejected and posted the Title Appeal for final argument.

(2.) Brief facts in narrow compass is that the decree has been passed in the title suit, against which appeal has been preferred being Title Appeal no. 28 of 2008. A title suit has been filed for cancellation of sale deed no. 5515 dated 20.05.1986 and a decree for permanent injunction has been sought to be issued. The suit has been dismissed vide judgment dated 29.01.2008 against which appeal has been preferred being Title Appeal no. 28 of 2008. An application has been filed by the appellant under Order XLI Rule 27 of the Code of Civil Procedure on 21.08.2008 seeking leave of the appellate court to adduce the additional evidence i.e. bringing on record a judgment passed in Criminal Appeal No. 197 of 1994 dated 17.5.2003 and an agreement for sale dated 15.12.1987. These two documents were necessary for adjudication of the appeal, but the appellate court having taken into consideration the scope of Order XLI Rule 27 of the C.P.C. and also considering the fact that the agreement for sale, which is a document dated 15.12.1987 before filing of the Title Suit No. 23 of 1988 and the judgment of Criminal Appeal no. 197 of 1994, has not accepted these documents as additional evidence.

(3.) The trial court in spite of providing ample opportunities to the plaintiff to file these documents at the Trial Court, the same has not been filed and as such, at the belated stage without assigning any cogent reason, the same has been sought to be adduced by way of additional evidence and, therefore, the said application has been rejected which has been assailed in the instant writ petition.