JUDGMENT :

1. Being aggrieved and dissatisfied with the order no. 11 dated 8.12.2011 passed by the learned Civil Judge (Senior Division), Ranaghat, Nadia in Title Appeal no. 08 of 2010, the present application under Article 227 of the Constitution of India has been preferred.

2. The petitioner contended that petitioner had filed a suit being title suit no. 13 of 2007 before the court of learned Civil Judge (Junior Division), 1st Court, Ranaghat, Nadia seeking relief inter alia for temporary and permanent injunction restraining the defendants from illegally dispossessing the plaintiff from the suit shop and from closing down the business of the plaintiff from the suit shop. Learned trial court dismissed the suit against which the plaintiff/petitioner has preferred aforesaid appeal being Title Appeal no. 08 of 2010.

3. Ms. Lahiri, learned advocate for the petitioner submits where possession of the plaintiff is admitted and the plaintiff is in settled possessions, such possession cannot be disturbed without adopting due legal process and learned court should have decreed the suit by granting injunction to protect the possession of the plaintiff in the suit property. During pendency of the aforesaid Title Appeal no. 8 of 2010, the plaintiff/petitioner filed a petition under Order XLI rule 27 read with Section 151 of the Code for adducing evidence in the interest of justice, on the ground that during the trial in the trial court, the appellant could not submit some relevant documents as the same were misplaced and recently found, which were kept in an old wooden almirah and some documents were in the custody of the petitioner/appellant, which are required to be produced and proved to adjudicate dispute between the parties completely and effectively and for pronouncing judgment by the appellate court.

4. Learned first appellate court was pleased to reject the said application under Order XLI Rule 27 on the ground that the plaintiff appellant did not pray before the trial court and he took sufficient time for searching documents but did not find and court delivered the judgment. The plaintiff/appellant did not take any step for three years before the date of judgment and he was not at all diligent till judgment and it is not the case of the petitioner that lower court refused to accept plaintiff’s documents or has not granted time to file the documents. Moreover, some of the documents, plaintiff/petitioner wants to prove, were executed after the judgment has been passed by the trial court and accordingly those documents are not relevant for the adjudication of the suit or the appeal.

5. Learned counsel for the petitioner in this context further submits that the court below has erred in rejecting the prayer for additional evidence because all those documents are very much required to support the plaintiffs case of settled possession in the suit shoproom till date. She further submits that the question of refusal by the learned trial court to accept the documents does not arise as the documents came to the hands of plaintiff on subsequent dates. Learned trial court should have considered the nature of the additional evidence prayed to be adduced and that such additional evidence would not introduce any new case against the defendant/respondent and accordingly the order impugned is arbitrary, whimsical and perverse.

6. Learned counsel for the opposite party supports the impugned order and contended that the learned first appellate court has rightly held that plaintiff did not pray before the trial court and he took sufficient time for searching the documents but did not produce the same before delivery of judgment. The plaintiff was not at all diligent till delivery of judgment and such prayer cannot be allowed at this stage as it is not the case of the plaintiff that the court below refused to admit those documents. He also pointed out showing list of documents that some of the documents were executed after delivery of judgment and some are