The discretion to allow additional evidence in appeal should be exercised sparingly and only in exceptional circumstances as per the parameters set out in Order XVI Rule 27 of the Code of Civil Procedure.

JUDGMENT :

1. Supervisory jurisdiction under Article 227 of the Constitution is being invoked by the petitioners in the instant petition seeking setting aside of order dated 22.4.2017 (for short impugned order) passed by the Additional District Judge, Pulwama (for short court below) in case titled as Ali Mohd. Regu vs. Mst. Zeba and anr.

2. The facts emanating from the petition would reveal that a suit for permanent injunction came to be filed by the plaintiff/predecessor-in-interest of the petitioners herein against the predecessor-in-interest of the defendants/respondents herein before the Court of Munsiff, Pulwama on 24.09.2005 which came to be dismissed in terms of judgment and decree dated 16.11.2013. The judgment and decree dated 16.11.2013 came to be assailed by the plaintiff-predecessor-in-interest of the petitioners herein in an appeal before the Court below on 11.12.2013.

3. During the pendency of the appeal, the predecessor-in-interest of the petitioners herein filed an application for placing on record an agreement to sell dated 05.02.1980 and to adduce additional evidence to prove the same and the said application came to be dismissed by the Court below in terms of the impugned order.

The impugned order is being assailed on multiple grounds inter alia including the one that the Court below while passing impugned order ignored the legal principles while making contrary and inconsistent opinions, thus, committed an error apparent on the face of the record and did not properly consider the judgments relied upon inasmuch as mis-appreciated the same resulting into injustice and passing of the impugned order.

Heard counsel for the parties and perused the record.

4. Perusal of record tends to show that the appeal filed by the petitioners herein before the Court below stands dismissed in default on 25.02.2019, yet notwithstanding the same, this Court will proceed to test the legal validity or otherwise of the impugned order.

5. Perusal of the record reveals that the case set up by the plaintiff/predecessor-in-interest of the petitioners before the trial court relates to securing of an injunction against the predecessor-in-interest of the defendant/respondents herein, contending therein that the plaintiff secured possession and ownership in respect of the land measuring 07 marlas on the strength of an agreement to sell executed in his favour way back in the year 1980 and that his father has raised two shops in front of the land and on the backside of the shops, around 02 marlas of land was left vacant which came to be encroached by the defendant with muscle power while dumping building material and constructing a plinth thereon. The plaintiff also claimed adverse possession over the strip of the land. As against the case set up by the plaintiff, the defendant had contended that they are in possession and ownership of land measuring 07 marlas together with a two storied residential shopping complex on the strength of a sale deed executed by one Maheshwar Nath Bhat S/o Late Shiv Ram Bhat R/o Village Khrew Tehsil Pampore (Migrant) after obtaining requisite permission for alienation of sale under the relevant Act and post execution of the said sale dated 16.12.2003, construction of two storied additional structure adjacent to the existing one came to be sought and that during the raising of the construction of the said structure, the plaintiff filed the suit for injunction.

6. Perusal of the record reveals that the trial court after the trial of the case dismissed the suit vide judgment and decree dated 16.11.2013 which came to be questioned in appeal by the plaintiff on 11.12.2013.

7. Perusal of the record further tends to show that during the pendency of the said appeal, after a period of more than three years, the plaintiff-appellant filed an application before the Court below for placing on record agreement to sell dated 05.02.1980 and also to adduce the evidence to prove the same while invoking the provisions of Order XVI Rule 27