The central legal point established in the judgment is the requirement of due diligence and the inability to produce evidence despite such diligence as a condition precedent for allowing a party to adduce additional evidence at the stage of appeal.

JUDGMENT

Tarlok Singh Chauhan, J —This petition under Article 227 of the Constitution of India takes exception to the order passed by the learned Additional District Judge (I) , Mandi, H.P. whereby he allowed the application filed by the respondents for leading additional evidence under Order 41 Rule 27 of the Code of Civil Procedure (for short ''Code'') .

2. The facts as necessary for the disposal of this petition are that the petitioners/plaintiffs filed a suit for declaration along with consequential relief of injunction with the prayer that they be declared as legal heirs of Gian Chand and mutation attested in favour of Smt. Shivdei is wrong, illegal and null and void and the Will dated 14.07.2000 is also fake and not genuine and, therefore, not binding on the right, title and interest of the petitioners/plaintiffs.

3. The respondents/defendants contested the suit on various grounds. After completion of the pleadings, the learned trial Court framed the issues and thereafter the parties led evidence.

4. On completion of the evidence of the respondents/ defendants, they moved an application under Order 8 Rule 1-A of the Code for production of mutation dated 14.08.2003 whereby the house belonging to Smt. Shivdei was alleged to have been mutated in the names of her brother''s sons Sh. Yash Pal and Som Raj, however, the said application was rejected. The suit culminated into a decree being passed in favour of the petitioners/plaintiffs and the said decree has been assailed by the respondents and is pending adjudication before the learned Additional District Judge, Mandi.

5. During the pendency of the civil appeal, the respondents/appellants filed an application under Order 41 Rule 27 of the Code for producing certain documents including mutation dated 14.08.2003. The same was allowed by the learned first appellate Court and aggrieved thereby, the petitioners have filed the instant petition.

6. It is vehemently contended by the learned counsel for the petitioners that the respondents had not approached the Court with clean hands and had not disclosed that similar application had already been filed by the respondents before the trial Court which had been dismissed and the said order having not been assailed would now operate as res judicata. The petitioners have also raised the plea of estoppel and have further pleaded that in absence of there being any due diligence on the part of the respondents, the application could not have been allowed.

7. On the other hand, learned counsel for respondents No.1 and 2 would support the order and urge that the same has been passed within the four corners of law and, therefore, deserves to be upheld.

I have heard the learned counsel for the parties and have gone through the records of the case.

8. Adverting to the plea of res judicata, it is not in dispute that an application for producing on record the mutation dated 14.08.2003 was filed before the learned trial Court and the same was rejected.

Admittedly, the said order has attained finality inasmuch as the same was neither assailed by filing a revision petition nor by filing a petition under Article 227 of the Constitution of India and above all the same was also not assailed under Section 105 of the Code while filing the first appeal.

9. In the subsequent application filed by the respondents under Order 41 Rule 27 of the Code have sought permission to lead additional evidence by placing on record the copies of registered Will dated 23.04.1994, mutation No.361 dated 14.08.2003, mutation No. 156 dated 05.01.1982, death certificate of Smt. Shivdei and copy of order dated 10.05.2002 passed by the Commissioner (DC) , Mandi. However, it is not in dispute that mutation No.361 dated 14.08.2003 itself makes a mention of the Will that is sought to be produced on record.

10. During the course of hearing, the respondents were asked as to whether they intended to place on record the original Will or the certified copy of the Will and it was candidly con