JUDGMENT :

Alka Sarin, J. (Oral)

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 09.02.2023 whereby the application filed by the defendant-respondent Nos. 1 to 3 herein under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for additional evidence has partly been allowed.

2. Brief facts relevant to the present lis are that the plaintiff-petitioner herein filed a suit for permanent injunction to the effect that he is the owner in possession as co-sharer of the land measuring 63 kanals 14 marlas comprised in Khewat No. 163 Khatoni No. 227 alongwith land measuring 7 kanals 8 marlas bearing Killa No. 16//15 comprised in Khatoni No. 228 total land being 7 kanals 2 marlas as per jamabandi for the year 2001-02. The suit was dismissed by the Trial Court vide the judgment and decree dated 31.08.2016. Aggrieved by the same, an appeal was preferred by the plaintiff-petitioner herein on 22.09.2016. During the pendency of the appeal, on 06.01.2020 an application was filed by the defendant-respondent Nos.1 to 3 herein for leading additional evidence (Annexure P-1). Vide the said application the defendant-respondent Nos. 1 to 3 had sought to bring on record the following documents :

'a. Order dated 16.6.1963 passed by Consolidation Officer.

b. Amended allotment of land by Consolidation Authorities in pursuance of order dated 16.6.1963.

c. Site plan of the allotted area.

d. Jamabandi year 1991-92 of field No. 27//11/2 showing the possession of plaintiff and his family on this alternatively allotted land to them after withdrawal of field No. 27//20/2 from them.

e. Plaint of civil suit No. 174 of 2010 (old CS No. 381 of 2010/12) titled Matadin etc. vs. Singh Ram etc.

f. Contempt petition with copies of statement of Ram Kumar, Siribhagwan and Rakesh.

g. Judgment and decree dated 30.9.2015 passed by Hon'ble CJ (JD) Mohindergarh in CS No. 174 of 2010.

h. Judgment and decree dated 10.12.2018 passed by Hon'ble ADJ Narnaul in case titled Matadin Vs. Singh Ram. '

It was stated in the application that except for the judgment and decree dated 10.12.2018 which came into existence during the pendency of the appeal, the remaining documents could not be produced despite exercise of due diligence and for lack of proper legal advice. The First Appellate Court vide the impugned order dated 09.02.2023, without assigning any reasons, partly allowed the application. Hence, the present revision petition.

3. Learned counsel for the plaintiff-petitioner would contend that the application has been allowed vide the impugned order which is bereft of any reasoning. The learned counsel has further contended that as per the law laid down in the judgment of the Hon'ble Supreme Court in the case of Malayalam Plantations Ltd. Vs. State of Kerala & Anr. [2011 (3) RCR (Civil) 609] if an application is filed under Order 41 Rule 27 CPC in a pending appeal, it is incumbent on the part of the Appellate Court to consider the same at the time of hearing it on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing on the issues involved. The learned counsel has further relied upon the observations of the Hon'ble Supreme Court in the case of Malayalam Plantations Ltd. (supra) which read as under :

'11) If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41, Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evi