The duty of the first appellate court to consider and decide the application under Order 41 Rule 27 CPC on merits before or at the time of deciding the first appeal finally, and the appellate court's discretion to permit additional evidence if it is admissible and relevant to the issues involved in the appeal.

Headnote:
Specific Performance - Civil Suit - [Order 41 Rule 27 CPC, Specific Performance] - The court discussed the duty of the first appellate court to consider and decide the application under Order 41 Rule 27 CPC on merits before or at the time of deciding the first appeal finally. The court also highlighted the principle that the party concerned must argue and press their application under Order 41 Rule 27 CPC, inviting the attention of the first appellate court to consider and decide their application for production of additional evidence. The judgment emphasized that the appellate court may permit additional evidence if it is admissible and relevant to the issues involved in the appeal.
Fact of the Case:

The appellants filed a civil suit for specific performance based on an agreement to sell dated 08.07.1991. They claimed that the respondent agreed to sell his share of agricultural land and deliver possession, but the trial court found the agreement non-specific and dismissed the suit on merit due to a delay of 11 years in filing the suit.
Finding of the Court:

The court found that the first appellate court did not consider the application under Order 41 Rule 27 CPC, but emphasized that the appellants did not argue or press their application before the first appellate court. The court also concluded that no substantial question of law was involved in the appeal, and the findings of fact by the lower courts were based on due appreciation of evidence.
Issues: The issues involved the consideration of the application under Order 41 Rule 27 CPC, the delay in filing the suit for specific performance, and the duty of the first appellate court to deal with the application on merits.
Ratio Decidendi: The court emphasized the duty of the party to argue and press their application under Order 41 Rule 27 CPC before the first appellate court and highlighted the appellate court's discretion to permit additional evidence if it is admissible and relevant to the issues involved in the appeal.
Final Decision: The second appeal was dismissed as devoid of merits, and no order as to cost was given.

JUDGMENT

1. The appellant-plaintiffs (hereafter referred to "Plaintiffs") have preferred this second appeal under Section 100 of CPC assailing the judgment and decree dated 11.12.2017 passed in civil first appeal No.143/2006 by the Court of Additional District Judge No.1, Alwar, affirming the judgment and decree dated 13.10.2006 passed in civil suit No.19/04 by the Court of Additional Civil Judge (Jr. Division) and Judicial Magistrate No.4, Alwar whereby and whereunder the appellant-plaintiffs' suit for specific performance has been dismissed on merits.

2. Heard learned counsel for appellants and perused the impugned judgments and record.

3. Learned counsel for appellants has raised arguments that before the first appellate court an application under order 41 Rule 27 CPC was filed by appellants on 30.04.2015, but the first appellate court has neither considered nor decided the said application while dismissing the first appeal vide impugned judgment dated 11.12.2017. Counsel has argued that it was the duty of the first appellate court to consider and decide the application under Order 41 Rule 27 CPC filed by appellants before or at the time of deciding the first appeal finally.

4. Reliance has been placed upon the judgment of Hon'ble the Supreme Court in Hakam Singh v. State of Haryana & Ors.AIR (2008) SC 2990], Jitender Singh and Anr minor through Mother v. Mehar Singh & Ors. [AIR 2009 SC 354] and the judgment of Rajasthan High Court Kishanlal & Ors. v. Ramchandra & Ors. [AIR 2020 (Raj) 145].

5. This is a case where the appellants instituted a civil suit for specific performance on 01.06.2002, on the basis of an agreement to sell dated 08.07.1991. The case pleaded by appellants in the plaint is that respondent-defendant-Raghunath agreed to sell his 1/12th share in agricultural land of Khasra No.802 measuring 6 bigha 9 biswa against total sale consideration of Rs.15,000/-, and after receiving full sale amount, he executed the agreement on 08.07.1991 on a stamp paper of Rs.5/-. A separate receipt for sale amount Rs.15,000/- was also said to be executed and handed over.

6. It was contended that the possession of 1/12th share was delivered to plaintiffs with assurance that as and when plaintiffs would like to get sale deed executed, the same will be executed. Plaintiffs for the first time issued notice on 22.05.2002 for getting sale deed registered, and thereafter filed the present suit on 01.06.2002.

7. Respondent-defendants (hereafter referred to "defendants") filed written statement on 29.08.2002 and categorically denied for execution of agreement dated 08.07.1991, as well as any receipt of sale amount of Rs.15,000/-, and also denied for delivery of possession of his 1/12th share to plaintiffs. The agreement in question and receipt were alleged to be fake documents. Further defendant alleged that the suit is beyond limitation and is liable to be dismissed.

8. The trial court after hearing of rival parties framed issues and recorded evidence of both parties.

The trial court observed that plaintiffs could not prove the execution of agreement as well as the factum of delivering of possession. The statement of plaintiffs and their witnesses regarding delivery of possession was found contradictory. It was also observed that the agreement is non-specific, having no details, and further that the suit has been filed after a delay of 11 years. Thus, finally the trial court dismissed plaintiff's suit on merit vide judgment dated 13.10.2006.

It was noticed by the trial court that plaintiffs referred about one revenue suit filed by defendant before SDO Court for declaration and permanent injunction. The resort was taken in order to patch up the period of limitation, however such stand was not accepted by the trial court.

9. Plaintiffs preferred the first appeal against the judgment and decree dated 13.10.2006. Before the first appellate court, during pendency of appeal plaintiffs sought to produce his written statement dated 04.11.2003 and the final

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