Point of Law: Order XLI Rule 27 of Code of Civil Procedure, 1908, which reads as production of additional evidence in Appellate Court.

ORDER :

1. This writ petition is filed praying to issue a writ in the nature of certiorari or any other appropriate writ or orders for quashing the order dated 02-11-2017 passed by the III Additional District and Sessions Judge, Ramanagara, in Regular Appeal No. 78 of 2015 by allowing the application filed by respondent Nos. 1 to 3 in I.A. No. II filed under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure, 1908, for production of additional documents.

2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

3. The plaintiffs-respondent Nos. 1 to 3 filed I.A. No. II in Regular Appeal No. 78 of 2015 under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure, 1908, for production of additional documents before the III Additional District and Sessions Judge, Ramanagara (for short ‘the Appellate Court’). Said application came to be allowed vide order dated 02-11-2017. Plaintiffs-Respondent Nos.1 to 3 filed the Original Suit No. 373 of 2006 against the defendant No. 2-petitioner for relief of partition and separate possession came to be dismissed with costs vide order dated 24-10-2011 before the Additional Senior Civil Judge, Ramanagara (for short ‘the trial Court’).

4. Being aggrieved by the said judgment and decree in Original Suit No. 373 of 2016, the plaintiffs-respondent Nos.1 to 3 filed Regular Appeal No. 78 of 2015 before the Appellate Court, wherein I.A. No. II filed for production of additional documents. The First Appellate Court after hearing both the parties, allowed the said appeal and the appellants were permitted to produce the documents, mentioned in the application.

5. Learned counsel for the petitioner-defendant No. 2 has contended that respondent Nos. 1 to 3-plaintiffs have filed I.A. No. II for production of additional documents before the Appellate Court after lapse of two and half years from the date of filing of the regular appeal. They have not assigned any valid or tenable reasons for such inordinate delay in filing the application for producing the documents. He has further contended that, time and again, the Hon’ble Apex Court and this Court have held:

“It is not open for the parties at the stage of appeal to make fresh allegations or to produce the documents. Additional evidence could not be permitted at appellate stage in order to enable one of the parties to remove certain lacunae in presenting their case.”

Hence, he prays to allow the writ petition and to set aside the order passed on I.A. No. II.

6. Per contra, learned counsel for respondent Nos. 1 to 3-plaintiffs has contended that the respondents have filed an appeal before the Appellate Court challenging the judgment and decree of the trial Court. The trial Court dismissed their suit for partition and separate possession. As such, the respondents intend to produce the certified copy of the registered sale deed executed by plaintiff No. 1-respondent No. 1 (Smt. Girijamma) in favour of C.S. Ramakrishna and also the order of the Deputy Tahasildar, Nada Kacheri, Uttarahalli Hobli, Bengaluru South Taluk, sanctioning old pension in favour of plaintiff No. 1-respondent No. 1 (Smt. Girijamma). He further contended that the aforesaid documents were handed over to their learned counsel, who was representing them before the trial Court in Original Suit, but their learned counsel did not produce those documents in the trial Court for the reasons best known to him and as such, they produced the same before the Appellate Court for consideration.

7. I have given my anxious consideration to the arguments addressed by the learned counsel for both the parties and perused the material on record.

8. On careful consideration of the arguments by the learned counsel for both the parties, it is relevant to go through Order XLI Rule 27 of the Code of Civil Procedure, 1908, which reads as under:

“27. Production of additional evidence in Appellate Court:

(1) The parties to an appeal shall not be entitl