Mr. Rajesh Bindal J.: - Challenge in the present petition is to the order dated 15.12.2008, passed by the court below, whereby in an application filed by respondent No. 1 before the learned lower appellate court, he has been permitted to lead additional evidence.

2. Briefly, the facts of the case are that respondent No. 1-Kalu Ram filed a suit for declaration that adoption deed No. 9 dated 10.5.2000 executed by Jai Ram son of Ram Chander in favour of Ram Niwas son of Matadin is a result of fraud, misrepresentation and merely a paper transaction, hence, not binding on the rights of the plaintiff-respondent No.1. Further challenge was to the release deed No. 697 dated 15.6.2000 executed by Jai Ram in favour of Ram Niwas. The parties are related to each other. The pedigree table, as is noticed by Civil Judge (Junior Division), Mahendergarh in its judgment dated 27.7.2006, is extracted below:

Dilsukh

|

Ram Chander

|

______________________________________________________________________

| | | |

Matadin Kalu Ram Ramswaroop Jai Ram

|

Ram Niwas ( Plaintiff )

(Defendant No. 1)

3. The suit filed by respondent No. 1 having been dismissed, he preferred appeal before the learned court below. In appeal, an application under Order 41 Rule 27 CPC was filed seeking permission to lead additional evidence to produce on record certified copy of the plaint in Civil Suit No. 12 of 2001, titled as “Jai Ram v. Ram Niwas”, decided on 27.4.2002, certified copy of Civil Suit No. 679 of 2000 filed on 15.12.2000 by Ram Niwas against Jai Ram and written statement filed by Jai Ram and the agreement to sell in Civil Suit No. 315/RT of 2001 instituted on 14.5.2001, titled as “Smt. Sushila v. Jai Ram and others”. The learned court below after considering the contentions raised by learned counsel for the parties accepted the application vide impugned order dated 15.12.2008 and permitted respondent No. 1 to prove the documents in question by way of additional evidence. It is this order, which is impugned in the present petition.

4. Learned counsel for the petitioner submitted that ample opportunity was given to respondent No. 1-plaintiff by the trial court for leading his evidence. Despite the fact that two of the aforesaid documents, which have been permitted to be produced now in additional evidence, were well within his knowledge and had even been pleaded in the plaint, but still he did not think it appropriate to produce the same in his evidence at the trial stage. He cannot be permitted to prove these documents in appeal to fill in the lacuna left out. He further submitted that observations of the court below in the impugned order that respondent No. 1 was not in knowledge of the civil suits, plaints or the documents, which have been permitted to be produced in additional evidence, being not a party in that litigation is totally erroneous. In fact, there is a specific pleading in the suit filed by respondent No. 1 pertaining to two civil suits, i.e., Civil Suit No. 12 of 2001 and Civil Suit No. 679 of 2000, hence, the order being based upon erroneous fact finding, deserves to be set aside. He further submitted that even otherwise, none of the said documents is relevant for the purpose of decision of appeal considering the fact that respondent No. 2, who had executed the release deed in his favour, is alive. He had filed a written statement in the suit admitting adoption of the petitioner and also execution of release deed. He had even been cross-examined when appeared in the witness box but still nothing could be found. The production of the documents will not lead the case of respondent No. 1 any further as it is not a case that executor of the documents had expired and only some inferences are to be drawn from different documents and allied circumstances.

5. On the other hand, learned counsel for respondent No. 1 submitted that the case set up by respondent No. 1 for permitting him to lead additional evidence at the appellate stage wa