The central legal point established is that the Appellate Court has the power to take additional evidence under Section 107 CPC, and allowing such evidence would not cause prejudice if the suit has already been dismissed.

ORDER

1. This writ petition has been filed by the petitioners-defendants, challenging order dated 18.08.2018, wherein applications filed by non-petitioners-plaintiffs under Order 16 Rule 6 CPC and under Section 45 of the Indian Evidence Act, 1872 have been allowed.

2. Learned counsel for the petitioners submitted that the suit filed by the plaintiffs-non petitioners for specific performance of contract was dismissed by judgment and decree dated 19.02.2011.

3. Learned counsel for the petitioner submitted that the specific issue was framed by the Civil Court in respect of the alleged agreement to sell dated 23.08.1980.

4. Learned counsel for the petitioners submitted that the said issue was decided in favour of the present petitioners as no contemporary evidence was led by the plaintiffs to prove that agreement to sell was executed.

5. Learned counsel for the petitioners further submitted that the Civil Court while recording the finding on issue No.1 and issue No.2 clearly found that no application was filed to lead evidence on behalf of the plaintiffs nor any prayer was made to have expert opinion from Forensic Science Laboratory (FSL) or any other expert to compare the thumb impression said to be put by defendant Suwa Lal-deceased.

6. Learned counsel for the petitioners submitted that appeal was pending before the Appellate Court and the Appellate Court in the year 2017, allowed that application filed by the non-petitioners and directed that the expert opinion from Forensic Science Laboratory, may be taken in respect of the documents which are alleged to be executed by late defendant-Suwa lal.

7. Learned counsel for the petitioners further submitted that the Appellate Court has permitted to fill the lacuna at the appellate stage and the same cannot be done. Learned counsel for the petitioners further submitted that the Andhra Pradesh High Court in the case of Smt. Renu Devi Kedia Vs. Smt. Seetha Devi, AIR 2005 Andhra Pradesh 180, has considered the similar issue and has held that the expert opinion cannot be sought after a long gap and as such on the strength of the said judgment, learned counsel for the petitioners submits that pendency of appeal for more than 6 years was a proper ground on which the application filed by the non-petitioners should have been dismissed.

8. Learned counsel for the petitioners also places reliance on a judgment in the case of Mamatadevi Vs. Vijaykumar Agrawal, reported in AIR 2008 (NOC) 694 (BOM.)

9. Learned counsel-Mr. Bipin Gupta appearing for the respondents submitted that the application filed by the nonpetitioners, was not only under Order 16 Rule 6 CPC but same was also filed under Section 107 and 151 CPC.

10. Learned counsel for the respondents submitted that as per power given to the Appellate Court under Section 107 of CPC, the Appellate Court has same power and can also take the additional evidence or such other evidence, which is required while deciding the appeal.

11. Learned counsel for the respondents submitted that the Appellate Court is fully empowered to take the additional evidence and as such no fault can be found in the impugned order which is assailed by the petitioners.

12. Learned counsel for the respondents also submitted that the suit has been filed by the non-petitioners and no prejudice will be caused to the petitioners as their suit has been dismissed and if the opinion of expert is taken in respect of disputed documents, no prejudice ultimately will be caused to any party and it will be for the parties to lead other evidence to show that the document was executed or not.

13. Learned counsel for the respondents places reliance on the judgments reported in (2008) 4 SCC 530-Thiruvengadam Pillai Vs. Navaneethammal & Anr; [2019] 5 MLJ 290-Ramayee Vs. Kasthuri & Ors., decided by Madras High Court and [2020] Supreme (Kar) 737-A. Narayana Vs. Gulabi V Rai, decided by the Karnataka High Court.

14. I have heard the submissions made by learned counsel for the parties.

15. This Court finds that