The limitations on admitting additional evidence in appeal under Order 41 Rule 27 of the Code of Civil Procedure.

Per Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 15.12.20 12, rendered by learned Additional District Judge, (Fast Track Court), Mandi, District Mandi, H.P., in Civil Appeal No.79/20 10.

2.“Key facts” necessary for the adjudication of this Regular Second Appeal are that the respondents/plaintiffs (hereinafter referred to as the “plaintiffs” for the sake of convenience) filed a suit for recovery of Rs. 10,00,000/- against defendant No.3/appellant, Jagdish Chand, (hereinafter referred to as “defendant No.3” for the sake of convenience) and defendants No. 1 and 2/proforma respondents No. 6 and 7 (hereinafter referred to as “defendants No. 1 and 2” for the sake of convenience). According to the plaintiffs, Hira Singh was owner of Tipper bearing registration No. HP-31B-0503. On 25.6.2005, at about 7.30 A.M., Hira Singh was going from Badaun to Trifalghat along with conductor on his Tipper. He was driving the tipper. When he reached near Badaun, there were stones and debris lying on the road, which had fallen on account of construction of a new road on the upper side, being carried out through defendant No.3 by defendant No.2, Executive Engineer, HPPWD, Sarkaghat. A heavy boulder fell on the front portion of the Tipper from the upper side of the road, as a result of which, Tipper tilted and fell down from the road into a deep Nallah. Hira Singh sustained multiple grievous injuries and was taken to Civil Hospital, Sundernagar, from where he was referred to PGI Chandigarh. However, he died on the way. Hira Singh was 38 years of age. He was the sole bread earner in the family. According to the plaintiffs, the accident took place on account of fall of boulders and debris from the newly constructed road and due to negligence of the defendants. The President, Gram Panchayat, issued a detailed report in this regard. The residents of Village Badaun also informed the Superintendent of Police, Mandi about the accident. The FIR was registered on 25.6.2006. The legal notice dated 3.8.2007 under Section 80 of the Code of Civil Procedure was also sent to defendant No.1.

3. Suit was contested by defendants No. 1 and 2. On merits, they denied that the Public Works Department had carried out any work. They also denied that they had allotted any work to contractor for construction of the road. According to them, accident took place due to act of the God and not due to the negligence on the part of the defendants.

4.Defendant No.3 also contested the suit by filing separate written statement. According to him, road in question was in proper condition at the time of accident. The vehicles were regularly plying on the road. The accident had taken place due to negligent driving of deceased Hira Singh. He denied that there was sudden fall of boulders and debris on the spot.

5.Learned trial court framed the issues on 27.11.2008 and decreed the suit for recovery of Rs.10,00,000/- vide judgment and decree dated 13.9.20 10. The defendants were jointly and severally held liable for the payment of damages.

6.Feeling aggrieved, defendant No.3 preferred an appeal before learned Additional District Judge, (Fast Track Court), Mandi, who vide judgment and decree dated 15.12.20 12 dismissed the appeal, but the plaintiffs were held entitled to compensation/damages of Rs.7,00,000/- jointly and severally for the death of Hira Singh caused due to the negligence on the part of the defendants along with interest at the rate of 6% per annum from the date of filing of the appeal. Hence, this appeal.

7. It would be apt at this stage to state that defendant No.3 also filed an application under Order 41 Rule 27 of the Code of Civil Procedure in the court of learned Additional District Judge (Fast Track Court), Mandi, H.P.. He dismissed the same vide separate order dated 15.12.20 12.

8. Mr. R.K. Gautam, learned Senior Advocate, has vehemently argued that learned Additional District Judge has erred in law while dismissi