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1998 Supreme(Raj) 157
High Court Of Rajasthan
Judgename : Arun Madan
SURJA RAM - Appellant
Versus
KRISHAN LAL - Respondent
C. S. A. 3 Of 1991
Decided On : 02/18/1998
B.L.Khatri, S.L.JAIN
The appellate court has the discretion to admit additional evidence if the trial court refused to admit evidence that ought to have been admitted, if the party seeking to produce additional evidence establishes that it was not within their knowledge or could not be produced at the time of the decree, or for any other substantial cause.
Headnote:
CIVIL PROCEDURE CODE - Order 41, Rule 27 - Additional Evidence - Appellate Court - Rejection of Application - Material Irregularity - Remand.
Fact of the Case:
The appellant filed an appeal challenging the lower appellate court's decision, which upheld the trial court's order granting a permanent injunction restraining the appellant from constructing a wall on a disputed property and ordering the demolition of the wall already constructed. The appellant argued that the lower appellate court erred in rejecting his application to amend his written statement, lead additional evidence, and examine witnesses to prove that the disputed land belonged to the municipality and not to the plaintiff.
Finding of the Court:
The court held that the lower appellate court committed a material irregularity by rejecting the appellant's applications under Order 41, Rule 27 CPC, Order 6, Rule 17 CPC, and Order 10, Rules 1 and 2 CPC, which prevented the appellant from presenting his defense and leading relevant evidence.
Issues: 1. Whether the lower appellate court erred in rejecting the appellant's application to amend his written statement under Order 6, Rule 17 CPC and consequently declined the prayer of the appellant to lead additional evidence in support of the plea that the disputed land infact, belonged to the municipality and not to the plaintiff, and if so to what effect?
Ratio Decidendi: The court relied on the provisions of Order 41, Rule 27 CPC, which allows the appellate court to admit additional evidence if the trial court refused to admit evidence that ought to have been admitted, if the party seeking to produce additional evidence establishes that it was not within their knowledge or could not be produced at the time of the decree, or for any other substantial cause. The court held that the appellant had established that he could not produce the additional evidence at the time of the trial due to circumstances beyond his control and that the lower appellate court erred in rejecting his applications.
Final Decision: The court allowed the appeal, set aside the impugned judgment and decree of the lower appellate court, and remanded the case back to the trial court for a fresh hearing. The trial court was directed to allow the appellant to lead additional evidence and to decide the case expeditiously.
MADAP, J.
( 1 ) -THIS appeal arises out of the judgment and decree dated 1,12. 1990 passed by learned Addl. District Judge No: 1, sri Ganganagar whereby the lower Appellate court affirmed the order and decree dated 21. 8. 1982 passed by Munsif-cum-Judicial magistrate, Sri Ganganagar in Civil Suit No. 142/1977.
( 2 ) THE fact giving rise to the filing of this appeal briefly stated, are that the plaintiff-respondent filed a suit for permanent injunction against the defendant appellant before munsif-cum-Judicial Magistrate, Sri Ganganagar for restraining the defendant-appellant from raising a wall on a piece of land in respect of room No, 9 situated, on Plot No. 628 alleged to be rented out to the defendant on a monthly rent of Rs. 12/- In the said suit the plaintiff had also sought a feltef pf mandatory injunction for demolition of the wall already construtted by the defendant. It was further alleged in; the plaint that the aforesaid. Plot No. 628 belonged to him and was in his ownership by virtue of duly executed sale deed dated 26. 2. 1958 on which he had constructed 9 rooms and out of which he had rented out room No. 9 to the defendant.
( 3 ) THE suit was contested by the defendant wherein he had also disputed the relationship of landlord and the tenant between the parties and it has- further alleged by the defendant that the Municipal Council, Sri ganganagar was the owner of the disputed house and as such the plaintiff had no locus standi to file the suit.
( 4 ) ON the pleadings of the parties the trial court framed the following issues:1. Whether Plot No. 628 on which residential house was constructed in sri Ganganagar wherein a wall had been raised from North to South stood in the ownership of the plaintiff? 2. Whether the construction of the wall was raised by the defendant over the plot in question was done in violation of buildings bye-laws and whether the plaintiff is authorized to get the wall demolished so unlawfully raised? 3. To what relief is the plaintiff entitled?
( 5 ) THE plaintiff in support of his case besides examining himself and also examined two witnesses before the trial court, while the defendant had examined himself and also four witnesses in support of his claim. The trial court after hearing the parties decreed the plaintiffs suit vide its judgment and decree dated 21. 8. 1982 and granted relief of permanent injunction to the plaintiff restraining the defendant from raising construction of disputed wall and further restrained the defendant by way of mandatory injunction from demolishing and construction of the wall already raised. Being aggrieved by the judgment and decree dated 21. 8. 1982 passed by Munsif-cum-Judicial Magistrate, Sri Ganganagar the defendant preferred an appeal before the district Judge, Sri Ganganagar which was transferred to thecourt of Addl. District Judge no. 1, Sri Ganganagar for hearing and disposat in accordance with law. Meanwhile the defendant had also applied to the Municipal council, Sri Ganganagar on 20. 10. 1983 for issuance of the Patta to him in respect of disputed land. In consequence thereof a Patta was issued by the Municipal Council in favour of the defendant on 5. 2. 1985 on payment of rs. 1584/- as consideration money. After the receipt of Patta, the defendant applied for amendment of his written-statement and also applied for permission to lead additional evidence under Order 41 Rule 27 CPC. However, both the said applications were dismissed by the lower appellate court vide its order dated 14. 2. 1989.
( 6 ) IT will also be pertinent to mention that after the rejection of his aforesaid applications by the lower appellate court, the defendant had also filed an application under Order 18, rule 10 CPC on 5. 5. 1989 along with another application under Sections 56 and 57 of the indian Evidence Act read with Section 151 cpc on the same day which too were rejected by the lower appellate court vide its order, dated 1. 12. 1990. After hearing main appea
