Additional evidence under Order 41 Rule 27 can be permitted at the appellate stage if it is essential for a just decision, despite previous pleadings.

Judgment

Mr. Vikram Aggarwal, J.

The present revision petition assails the order dated 24.03.2022 (Annexure P-7) passed by the Additional District Judge, Faridabad vide which the application filed by the respondent-defendant under Order 41 Rule 27 CPC for leading additional evidence was allowed.

2. The facts, as emanating from the revision petition, are that the petitioner-plaintiff filed a suit for declaration that the mutation No.2176/2250 dated 06.07.2016 was null and void and was not binding upon the rights of the parties. A decree of permanent injunction restraining the respondent-defendant from alienating the suit property or changing its nature and creating any third party rights etc. was also sought. The case set up by the petitioner-plaintiff was that he was the owner in possession of different parcels of land to the extent of his share (fully described in the plaint) situated in Village Karnera, Tehsil Ballabgarh, District Faridabad. It was averred that the father of the petitioner-plaintiff had executed a Will dated 17.11.2015 vide which he had bequeathed the suit property in favour of the petitioner-plaintiff. As per the petitioner-plaintiff, he had come into possession of the suit land during the lifetime of his father. The suit land was said to be the self acquired property of the father of the petitioner-plaintiff. On 01.08.2017, the petitioner-plaintiff came to know that the respondent-defendant, in collusion with the revenue authorities, had got mutation of the suit land executed in her favour to the extent of half share. She had also threatened the petitioner-plaintiff that she would alienate the land. Under the circumstances, the suit was filed.

3. The suit was resisted by the respondent-defendant. The basic stand taken was that no Will had been executed by the father of the parties and that the same was a forged and fabricated document. It was averred that the mutation had rightly been sanctioned.

4. The suit was decreed by the Court of the Civil Judge (Junior Division), Faridabad vide judgment and decree dated 27.11.2018, leading to the filing of an appeal by the respondent-defendant.

5. During the pendency of the appeal, an application was moved by the respondent-defendant under Order 41 Rule 27 CPC for leading additional evidence. It was averred in the application that the respondent-defendant had come to know that the petitioner-plaintiff had himself submitted an affidavit to the revenue authorities on 29.04.2016 for sanctioning of the mutation which was subsequently challenged by the petitioner-plaintiff. The stand taken in the application was that once the petitioner-plaintiff had himself given an affidavit for sanctioning of the mutation, he would not be entitled to challenge the same.

6. The application was opposed by the petitioner-plaintiff and the averments made therein were denied.

7. By way of the impugned order dated 24.03.2022, the Court of Additional District Judge, Faridabad allowed the application leading to the filing of the present revision petition.

8. I have heard learned counsel for the parties and have also perused the paper book.

9. Learned counsel for the petitioner-plaintiff submitted that the First Appellate Court erred in allowing the application at the first appellate stage and grave injustice had been caused to the petitioner-plaintiff. It was submitted that the respondent-defendant could not be permitted to fill up the lacunae since the trial Court had already given a decision against the respondent-defendant and the respondent-defendant was simply trying to change her stand.

9.1 It was submitt